Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation

Abstract: The Supreme Court’s recent pleadings decisions - Bell Atlantic v. Twombly and Ashcroft v. Iqbal - have injected considerable chaos into the system of civil litigation. The decisions impose an uncertain “plausibility” requirement and appear to endorse an increased power of district courts to dismiss complaints, a power that may be employed in an unprincipled, normatively problematic manner. The current pleading issues resemble similar issues that have arisen with summary judgment and judgment as a matter. With the latter devices, an unclear “reasonable jury” standard has likewise failed to guide judicial applications in a principled manner and has lead to criticisms that the unconstrained power it gives judges to terminate lawsuits has lead to normatively problematic consequences. The scholarly debates regarding pleadings - like the debates regarding summary judgment and judgment as a matter of law - have revolved around a tension between the related concerns for access to courts, participation values, jury rights, and the risk of eliminating meritorious lawsuits, on one hand, and the concerns for efficiency, in terrorem settlements, and meritless lawsuits, on the other hand.This Article argues that there has been a significant failure at both the doctrinal and theoretical levels to relate these three procedural devices to the evidentiary proof process in particular and the system of civil litigation as a whole. I argue that the standards for each device depend on the underlying proof process and understanding the requirements of that process is integral for understanding the devices and providing content to their standards. I introduce a theory of “procedural accuracy” that explains, clarifies, and provides content to the standards for each device by illustrating how each device serves an alignment function: i.e., they align (or ought to align) outcomes with the requirements of the proof rules. I also explain how the theory fits and explains important aspects of the doctrine for each device. Finally, and most importantly, I defend the theory and the standards it provides as normatively desirable in light of procedural values that underlie the system of civil litigation as a whole.

The New Bond Workouts

Abstract: Bond workouts are a famously dysfunctional method of debt restructuring, ridden with opportunistic and coercive behavior by bondholders and bond issuers. Yet since 2008 bond workouts have quietly started to work. A cognizable portion of the restructuring market has shifted from bankruptcy court to out-of-court workouts by way of exchange offers made only to large institutional investors. The new workouts feature a battery of strong-arm tactics by bond issuers, and aggrieved bondholders have complained in court. The result has been a new, broad reading of the primary law governing workouts, section 316(b) of the Trust Indenture Act of 1939 (“TIA”), which prohibits majority-vote amendments of bond payment terms and forces bond issuers seeking to restructure to resort to exchange offers. This Article exploits the bond market’s reaction to the shift in law to reassess a long-standing debate in corporate finance regarding the desirability of TIA section 316(b). Section 316(b) has attracted intense criticism, with calls for its amendment or repeal because of its untoward effects on the workout process and tendency to push restructuring into the costly bankruptcy process. Yet section 316(b) has also been staunchly defended on the ground that mom-and-pop bondholders need protection sharp-elbowed issuer tactics. We draw on a pair of original, hand-collected data sets to show that many of the empirical assumptions made in the debate no longer hold true. We show that markets have learned to live with section 316(b)’s limitations, denuding the case for repeal of any urgency. Workouts generally succeed, so that there is no serious transaction cost problem stemming from the TIA; when a company goes straight into bankruptcy there tend to be independent motivations. We also show that workout by majority amendment will not systematically disadvantage bondholders. Indeed, the recent turn to secured creditor control of bankruptcy proceedings makes them all the more attractive to unsecured bondholders. Based on this empirical background, we cautiously argue for the repeal section 316(b). Section 316(b) no longer does much work, even as it prevents bondholders and bond issuers from realizing their preferences regarding modes of restructuring and voting rules. We do not know what contracting equilibrium would obtain following repeal, but think that the matter is best left to the market. Still, we recognize that markets are imperfect and that a free-contracting regime may result in abuses. Accordingly, we argue that repeal of section 316(b) should be accompanied by the resuscitation of the long forgotten doctrine of intercreditor good faith duties, which presents a more fact-sensitive and targeted tool for policing overreaching in bond workouts than the broad reading of section 316(b).

Finding a Constitutional Home for the Public Trust Doctrine

Abstract: This paper analyzes the interrelated histories of the public trust doctrine and the Property Clause of the U.S. Constitution. The Property Clause empowers Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Meanwhile, the public trust doctrine is a traditional common law doctrine that limits government authority to use or alienate sovereign-owned natural resources, instead requiring the government to preserve such resources for the use and benefit of the general public. After reviewing the histories of the public trust and the Property Clause, this paper argues that the history of the Property Clause confirms the public trust doctrine as a structural federal constitutional principle. This principle not only provides cognizable limits on federal government power over public trust resources, but it also establishes a constitutional justification for the creation of a federal administrative state to manage such resources. And while the judicial enforcement of a federal public trust raises understandable separation of powers concerns, this paper argues that a neutral application of Supreme Court precedent requires judicial recognition and enforcement of such a trust. The public trust doctrine is an enforceable constitutional principle because, without Congress’ agreement to take on trustee duties, the Constitution never would have been ratified.

Even Some International Law is Local: Implementation of Treaties through Subnational Mechanisms

Abstract: Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government reserves the authority to compel compliance in case a State adopts a rule contrary to an international agreement which would place the United States in breach of its international obligations. This article examinees the role constituent States in the U.S. system play in treaty implementation through their legislative authority. The subject is of interest to determine the conditions under which State interests and authority might be taken into account for undertaking and implementing U.S. treaty obligations. This article examines the processes under which subnational implementation of international treaties can be brought to fruition and when it fails; when there are Uniform Law Commission products and drafting expertise available to facilitate implementation at the State level; and whether these approaches might enhance the ability of the United States to implement treaty obligations.

A Sovereign Wealth Turn

Abstract: On September 2, 2008, a group of leading sovereign wealth funds (SWFs) agreed on generally accepted principles and practices The process that created the so-called Santiago Principles is important in its own right, as a milestone on the way to what might become international financial architecture Since SWFs rose to prominence two years ago, they have been trapped in sterile domestic arguments between national security and open investment These have obscured SWFs' significance and the governance challenge they present The challenge reflects the power shifts and culture clashes of financial integration, which, thanks to capital flow reversals, no longer looks like an exercise to remake the world in the Anglo-American image Integration goes beyond opening borders to trade and investment It entails assimilating public capital in private markets on a vast scale, dealing with new forms of financial organization, and marrying financial systems premised on very different ideas about the role of the state in the economy The task of governing global finance entails making coherent, legitimate, and accountable a patchwork of public laws, private codes, bureaucratic networks and institutional remnants left in last century's wake Because SWFs embody so many recent shifts in finance, the new principles go to the heart of the governance task Their ultimate success or failure will be equally telling In the meantime, states that had played a limited role in shaping the norms of international finance have taken the lead writing the rules Competitors came together in a policy coordination forum, and in a substantive, non-hierarchical relationship with established international institutions Funds from wildly different political systems have had to negotiate domestic and external demands, and reconcile conflicting visions of mixing public and private