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.

The Right to Bear Arms: A Uniquely American Entitlement

Abstract: IN DISTRICT OF COLUMBIA V HELLER, THE US SUPREME Court held that individuals have a constitutional right to own firearms, notably to keep a loaded handgun at home for self-protection. The historic shift announced by Heller was the recognition of a personal right rather than a collective right tied to state militias. In McDonald v Chicago, the court, in its familiar 5 to 4 ideological split, held that the Second Amendment applies not only to the federal government but also to state and local gun control laws. In his dissent, Justice Stevens predicted that “the consequences could prove far more destructive to our nation’s communities and constitutional structure.”

Alien Tort Claims and the Status of Customary International Law

Abstract: Much of the recent debate about the status of customary international law in the US legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28 In Filartiga v Pena-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens The court’s position that customary international law was federal law was the prevailing view at the time — a view that has subsequently been dubbed the “modern position” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law Filartiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal systemMuch of the ensuing scholarly debate about the status of customary international law has focused on human rights litigation under section 1350 The debate continues in the currently pending Kiobel v Royal Dutch Petroleum Co, which, like Filartiga, concerns the applicability of section 1350 to litigation between two aliens based on human rights violations that occurred abroadThe focus on section 1350 — by critics and defenders of the modern position alike — has unfortunately diverted attention from the key concerns driving the modern position The core tenets of the modern position are that customary international law is binding on the States, that federal interpretations of such law are binding on State courts, and that State court decisions regarding such law are reviewable in the federal courts The modern position is based on an important structural insight well articulated by Hamilton in The Federalist: “[T]he peace of the WHOLE ought not to be left at the disposal of a PART” The costs of a violation of international law by a state are borne by the nation, yet the benefits are enjoyed by the state alone Though critics of the modern position have directed much of their fire at alien tort claims, these cases have never directly implicated the core of the argument for treating customary international law as federal law, and the fate of such claims does not depend on adopting or rejecting the modern position

Caremark and Compliance: A Twenty Year Lookback

Abstract: The Delaware Chancery Court’s decision in In re Caremark was and is a landmark decision. This brief Commentary takes a look back at Caremark on three issues that pertain to its contemporary relevance inside the corporate boardroom: (1) framing the cost-benefit assessment on the question of how much to spend on compliance; (2) how and when to force certain compliance matters to real-time board-level attention; and (3) using selection, promotion, and compensation decisions to influence the culture and risk-taking “temperature” of the firm.

Expanding the Reach of the Commodity Exchange Act's Antitrust Considerations

Abstract: In recent years, a small group of financial institutions have paid billions of dollars to settle civil and criminal claims that they formed cartels to rig the prices of certain critically important financial instruments and to stifle competition in others. For example, bankers would rig global benchmark interest rates for the purposes of benefitting their trading positions in over-the-counter (OTC) interest-rate swaps, which are bets on future interest rate movements. By conspiring with horizontal competitors to fix the benchmarks that were components of the prices of financial instruments, financial institutions and their employees harmed competition by warping the normal market factors that governed the prices of those instruments. The U.S. regulator for these markets, the Commodity Futures Trading Commission (CFTC), has broad authority to combat fraud and market manipulation, but it is not feasible to place all relevant forms of misconduct into one of those two categories. Antifraud claims generally require proof of misrepresentations or deceit, but institutions can engage in anticompetitive conduct without being deceptive. Likewise, market manipulation claims require proof that the defendants acted with the specific intent to cause an artificial price, which is nearly unprovable. An overlooked provision of the Dodd-Frank Act of 2010 gave the CFTC “Antitrust Considerations” authority to combat anticompetitive conduct, but this provision only applies to 100 or so large firms, which is a loophole so wide that the vast majority of market participants are beyond the provision’s reach. This Article argues that antitrust law is the ideal tool to use to address collusive schemes by horizontal competitors to fix the prices of financial instruments and that the CFTC should promulgate a regulation enabling the agency to bring civil enforcement actions against any person who causes (or attempts to cause) unreasonable restraints of trade or material anticompetitive burdens in the markets for derivatives. This would provide the agency that is the congressionally-designated expert on the markets for derivatives with broad authority to prevent anticompetitive conduct in those markets.

Response to Professor Paul Secunda's Comparative Analysis of the Treatment of Employment Claims in Insolvency Proceedings and Guarantee Schemes in OECD Countries

Abstract: Professor Secunda ably documents the approaches of OECD nations to protecting wage and pension claims in insolvency, particularly priorities and guarantee schemes. His Article will therefore be an important resource to employment, bankruptcy, and international law. Professor Secunda correctly notes that the United States has longstanding guarantee schemes for unemployment and retirement income, but its bankruptcy priorities for employment-based claims are not particularly strong. His thesis is that the United States can learn from Canada's recently enacted Wage Earner Protection Program Act.Professor Secunda's article also responds to suggestions I had made, to consider protections for ongoing pension plans and the insurance system, such as appropriate funding rules; the vagaries of legislation, including congressional committee jurisdictional issues, compromises made in “must-pass” legislation, and "Rahm's Rule"; and bankruptcy reform efforts already underway on the labor side, such as H.R. 100, and the proceedings of the ABI Chapter 11 Reform Commission.