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.

The Subjects of the Constitution

Abstract: Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction - puzzles of ripeness, of standing, of severability, of “facial” and “as-applied” challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?

Foreword: What's So Wicked About Lochner?

Abstract: In this brief Foreword to a forthcoming symposium on Lochner v. New York, I ask the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner. My answer is that Lochner is objectionable precisely because its reliance on the Due Process Clause perpetuated the serious misinterpretation of the Fourteenth Amendment established by the 5-4 decision in The Slaughter-House Cases. While Lochner's use of a presumption in favor of the liberty of citizens is basically sound - however well it may have been applied in the actual case - its reliance on the Due Process Clause, rather than on the Privileges or Immunities Clause, undermined the legitimacy of its method. I then offer the outline of an approach to Section 1 of the Fourteenth Amendment that gives a distinct meaning to each of its four Constitution-altering clauses.

Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press

Abstract: Until the modern-day press can determine how to profit from investigative journalism and begin to provide the kind of accountability reporting traditionally practiced by newspaper reporters, it needs a legal boost. Providing legal preferences for the press is nothing new, but it has not been done meaningfully for too long. Preferences that account for an unrelenting news cycle and the possibilities for instantaneous distribution of the news are needed. FOIA is a logical place to start. Its goal is the promotion of transparency and democracy. But it too has long faltered in achieving this goal and, by many measures, is in desperate need of an overhaul. Amending FOIA’s expedited processing provision to create the presumption of “compelling need” for requests by journalists might finally give investigative journalists the quick and complete access to certain government information that they have long sought. In the process, journalists would be better able to serve their watchdog function and to continue barking loudly in the years to come.

The International Claims Trade

Abstract: Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments & legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing claims trading seek to disguise themselves as addressing other legal issues, leading to a haphazard series of doctrines that tends to obscure the trade. The heightened visibility of all forms of external funding for claims against sovereigns has created challenges for courts and tribunals and for claimants who seek to recover on their investments. This Article analyzes the law of the international claims trade and asks what that law ought to look like in light of the theories and purposes of the international investment legal regime. Contrary to the popular view, it makes the case for secondary market players and then analyzes what should be done about them. It assesses the doctrines advanced by arbitral tribunals and by domestic courts at various stages of international investment dispute settlement involving a traded claim against a sovereign. The Article argues that, often, courts and tribunals are getting it wrong. In doing so, they obscure critical questions about why we have investment law and to what degree claims against sovereigns ought to be marketable. Drawing lessons from domestic law, the Article articulates a positive function for the international claims trade – one that investment law ought to accommodate. Finally, it proposes a way forward for states as they develop new investment instruments.

Securities Law and the New Deal Justices

Abstract: Taming the power of Wall Street was a principal campaign theme for Franklin Delano Roosevelt in the 1932 election Roosevelt's election bore fruit in the Securities Act of 1933, which regulated the public offering of securities, the Securities Exchange Act of 1934, which regulated stock markets and the securities traded in those markets, and the Public Utility Holding Company Act of 1935 (PUHCA), which legislated a wholesale reorganization of the utility industry The reform effort was spearheaded by the newly created Securities and Exchange Commission, part of the new wave of experts brought to Washington to rein in business PUHCA also marked the federal government's first significant incursion into corporate governance, with a corresponding reduction in the traditional role of investment bankers The SEC's ascendance over the investment bankers was reinforced during FDR's second term by the Chandler Act of 1938, which provided the agency with a broad role in the bankruptcy reorganization of troubled companiesEnacting those statutes was only the beginning, as the scope and effectiveness of the SEC's regulatory efforts depended critically on navigating these new statutes past an initially hostile Supreme Court After substantial delay in the lower courts, the securities statutes eventually got a friendly hearing in the Supreme Court, where a number of Justices came to the Court after serving as the "Founding Fathers" of the federal securities laws Roosevelt's Supreme Court nominees were involved in drafting the new legislation, securing its passage in Congress and implementing a litigation strategy that successfully stalled final determination of the constitutionality of the securities laws until New Deal appointed justices were in place Felix Frankfurter played an important role in shaping the Securities Act and PUHCA, and was a key advisor on litigation strategy to the Roosevelt administration Hugo Black led the legislative battle to enact PUHCA against the utility companies Stanley Reed and Robert Jackson were key courtroom advocates arguing PUHCA's constitutionality William O Douglas headed the study of Protective Committees that led to the Chandler Act and was Chairman of the SEC In this article, we explore the role of the New Deal justices in enacting the securities laws, litigating the challenges brought against them and then interpreting these laws in securities cases before the Supreme Court We show the important role that these New Deal justices played in ensuring a broad scope for the federal securities laws through generous interpretation Once constitutional questions had faded, securities cases proved to be a critical testing ground for newly emerging theories of administrative law We demonstrate the split over the importance of judicial review versus deference to the rule of experts that emerged among these Roosevelt appointees Finally, we explore the relative lack of influence of Douglas and Frankfurter in these cases, despite their familiarity and experience with the securities laws