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.

Towards a New Moral Paradigm in Health Care Delivery: Accounting for Individuals

Abstract: For years, commentators have debated how to most appropriately allocate scarce medical resources over large populations. In this paper, I abstract the major rationing schema into three general approaches: rationing by price, quantity, and prioritization. Each has both normative appeal and considerable weakness. After exploring them, I present what some commentators have termed the “moral paradigm” as an alternative to broader philosophies designed to encapsulate the universe of options available to allocators (often termed the market, professional, and political paradigms). While not itself an abstraction of any specific viable rationing scheme, it provides a strong basis for the development of a new scheme that offers considerable moral and political appeal often absent from traditionally employed rationing schema.As I explain, the moral paradigm, in its strong, absolute, and uncompromising version, is economically untenable. This paper articulates a modified version of the moral paradigm that is pluralist in nature rather than absolute. It appeals to the moral, emotional, and irrational sensibilities of each individual person. The moral paradigm, so articulated, can complement any health care delivery system that policy-makers adopt. It functions by granting individuals the ability to appeal to an administrative adjudicatory board designated for this purpose. The adjudicatory board would have the expertise and power to act in response to the complaints of individual aggrieved patients, including those complaints that stem from the moral, religious, ethical, emotional, irrational, or other subjective positions of the patient, and would have plenary power to affirm the denial of access to medical care or to mandate the provision of such care. The board must be designed to facilitate its intended function while creating structural limitations on abuse of power and other excess. I make some specific suggestions on matters of structure and function in the hope of demonstrating both that this adjudicatory model can function and that it can do so immediately, regardless of the underlying health care delivery system or its theoretical underpinnings.

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.

Masters of Their Own Eminent Domain: The Case for a Reliance Interest Associated with Economic Development Takings

Abstract: When the Supreme Court, in Kelo v. City of New London, held that economic development was a valid justification for the use of eminent domain, there was a massive public outcry. In the resulting backlash, many communities enacted legislation aimed at restricting economic development takings, but most of these reforms were largely symbolic and had little or no actual effect on such takings. This Note accepts the reality that economic development takings will inevitably occur, and identifies the greatest threat associated with such takings as the risk that when they do they may cause more harm than good. For example, after the failure of the development project at issue in Kelo, Pfizer has recently announced that they will be shutting down their facility in New London, Connecticut, taking 1,400 jobs with them. As a result, the price New London paid by condemning the homes of its residents has been for nothing and the city is left even worse off than before. This Note analogizes the failures of eminent domain takings to some of the harms that arose during the rash of plant shut-downs in the 1980s and early 1990s. Faced with the loss of the foundations of local economies, municipalities and scholars alike tried to come up with ways to protect the reliance that communities place in economic actors. This Note argues that although many of these proposals were not suitable for responding to the problems of plant closings, they are well-suited to use in the takings context. To that end, I discuss key differences between the two scenarios that justify applying some of the most progressive of these proposals in the takings context. Specifically, I propose that courts recognize a reliance interest, similar to an easement, which gives a municipality a legally enforceable right against corporate entities that benefit from economic development takings.

The Extraterritorial Application of Federal Criminal Statutes: Analytical Roadmap, Normative Conclusions, and a Plea to Congress for Direction

Abstract: Under what circumstances can crimes that cross national boundaries be prosecuted in federal court? This question is critical given the increasing frequency with which criminal conduct crosses borders. This Article provides a guide through extant extraterritoriality analysis -- warts and all -- and then considers what the answer should be. First, this Article provides a step-by-step roadmap for those seeking to answer the questions of where a crime that spans borders was committed and, if it is deemed to have been committed outside the territory of the United States, whether the applicable statute and Constitution would countenance such a prosecution. This roadmap will reveal the myriad uncertainties and questions that confront courts daily. This Article resolves two of these doctrinal uncertainties: the continuing relevance of the canon of construction and Courts frequently invoke the canon of construction to resolve extraterritoriality questions, but that canon is no longer relevant given the Supreme Court's latest cases. In those cases, the Supreme Court has applied a strong presumption against the extraterritorial application of federal statutes to conduct occurring outside the United States. Federal courts, however, rarely apply this presumption in criminal cases, instead regularly relying on a 1922 Supreme Court case, to hold that federal criminal statutes have extraterritorial reach. But, given recent developments and viewed in light of the history of the Court's presumption, is an anachronism. Second, this Article rebuts the near universal conclusion, reached by both courts and commentators, that extraterritoriality analysis should be the same in civil and criminal cases. Fundamental separation of powers considerations and criminal law's foundational legality principle require that Congress, not courts, clearly and prospectively specify the content of criminal prohibitions. If there is ambiguity regarding whether a statute applies extraterritorially and in what circumstances, the operational arms of the legality principle, the rule of lenity, and (perhaps) the vagueness doctrine, demand that this ambiguity be resolved in favor of the defendant. In short, where a criminal statute is geoambiguous, a strong presumption against extraterritoriality ought to apply. These same principles do not apply in civil cases, and the rationales for the strong modern presumption that federal civil statutes do not apply to conduct beyond the boundaries of the United States advanced by the Supreme Court and scholars are not convincing. The current state of affairs -- in which courts apply a strong presumption against extraterritoriality in civil cases but decline to do so in criminal cases -- is, in short, profoundly wrong-headed. Congress ought to act promptly to enact a general provision that provides uniform guidance on these questions in criminal matters.