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 & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Monitoring Caremark's Good Faith

Abstract: Former Chancellor Allen's opinion In re Caremark International Inc. Derivative Litigation is destined to be one of the most prominent Delaware opinions of all time. This article, which is based on the author's 2006 Francis G. Pileggi Lecture, celebrates the opinion and updates its message, focusing on the fiduciary good-faith obligation and its connection to the role of directors as monitors and to corporate governance more generally. Caremark is the starting point for understanding the good-faith obligation and its contours. It is an opinion where the court's rhetoric shifts from care to good faith, pushing fiduciaries to understand that some conduct, not amounting to a traditional, financially-conflicted loyalty breach, is sufficiently egregious that it crosses the line from the context of care into good faith. The result was an update on fiduciary conduct and duties that pushed directors to reconsider their affirmative monitoring and oversight obligations. The article also explores the increasing role of federal law in regulating directors' fiduciary duties and the ways in which it has begun to occupy what was the domain of the states. The result of Caremark and its progeny, along with the changes in federal law, is a good-faith obligation that is increasingly significant to fiduciaries, to those who observe them, and to understanding corporate governance. This article develops a theory of the good-faith obligation and explores its implications in the context of recent corporate-governance scandals. It also sets forth a theory for today's key good-faith question: what is a so-called "red flag?"

Correlation and Constitutional Rights

Abstract: Skepticism among American scholars about the value of analytic legal positivism stems in part from the pervasiveness of private law in analytic jurisprudence. Wesley Hohfeld’s influential framework proves little different: although he claims that the jural relations apply to constitutional entitlements, he relies on private law for their exposition. Matthew Kramer’s scholarship clarifies and develops Hohfeld’s framework and draws greater attention to its application in the public realm. This chapter advances the discussion by examining the application of the Hohfeld-Kramer framing to constitutional law in particular, demonstrating the weaknesses in assuming that the private law model can be sustained without more careful exposition. Such entitlements are held in res publica, with the result that the entitlement-holder also bears a duty of non-infringement. It identifies a new category of ‘dignities’, which act as a shield for claim-rights and highlights the nature of ‘purported rights’, where the state, holding the power of enforcement, structurally lacks the impetus to prosecute (its own) constitutional breach.

Rights Talk and Patient Subjectivity: The Role of Autonomy, Equality and Participation Norms

Abstract: Patients themselves have transformed the role of the patient in the health care system, making it far more complex than it ever has been before. As a result, the conceptual root of our contemporary understandings of “patient” is an assumption of autonomous subjectivity, i.e., of an individual aware of and capable of acting on her choices for medical care. The Symposium on Patient-Centered Health Law and Ethics of which this Article is a part considers the most recent stage in this evolution of meanings: the concept of patient-centeredness, with its implication of provider deference to the patient’s perspective.Throughout the process of an evolving patient identity, law has played a central constitutive role. In the 1960s and 1970s, the law of informed consent brought the concept of patient autonomy into the constellation of metanorms shaping the idealized doctor-patient relationship. From that process, the patient as a rights-bearing subject emerged. From the 1970s to the 1990s, women’s health advocates and AIDS patients brought a new level of militancy to the patient role, undertaking representation on their own behalf and on behalf of future patients with the same disease. Their efforts produced lasting legal changes in such fundamental medical endeavors as clinical research. In the last two decades, the rise of managed care and the growing shift of financial burdens and risk onto the patient have been reflected in the model of patient as consumer, market actor, and self-insurer – a change also inscribed by and into law.As health law and policy scholars increasingly focus on patient-centeredness, these new patient identities provide a starting point for understanding just who the patient at the center is, what her roles will be in the health-care system as a whole, and what her reasonable expectations of that system will encompass.

Crisis in Legal Education or the Other Things Law Students Should Be Learning and Doing

Abstract: This essay reviews the recent criticisms of legal education (costs, loss of job opportunities, content of curricula) and suggests that law students might be better served by studying and learning different things in law school – not only conventional Socratic, doctrinal and even, adversarial clinical education, but organizational development, problem solving, decision making, group dynamics, dispute resolution and dispute system design. The article also contrasts two other professions – one newer (business consulting) and another about the same age (architecture) for more adaptable models of educational change and professional task definitions and realignments. Rather than continuing the “negative” critique of current forms of legal education, this essay suggests a slightly more optimistic course for why studying and practicing law, as a more broadly defined discipline, should still be attracting both students and faculty who care about making the world more just, fair, efficient, effective, and peaceful.

Affording Fundamental Rights

Abstract: Mireille Hildebrandt’s Smart Technologies and the End(s) of Law (2015) raises questions for law that are best characterized as meta-institutional. This review essay considers the implications of Hildebrandt’s work for the conceptualization of fundamental rights. One consequence of the shift to a world in which smart digital technologies continually, immanently mediate and preempt our beliefs and choices is that legal discourses about fundamental rights are revealed to be incomplete along a dimension that we have simply failed to recognize. To remain effective in the digital age, rights discourse requires extension into the register of affordances.