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 New 'Public' Corporation

Abstract: The United States has experienced a financial crisis, a market crash, and a shift in the perception of America’s place in the global economy. New financial reform legislation will increase the role of the government in the socalled private-law world of corporations and will press further on our conception of what the rights and responsibilities of “public corporations” actually are and will push us to reconceive the definitions of public corporations and corporate governance. This article explores that issue - the definition of public corporation and its impact on corporate governance. Rather than accepting the definition of public corporations as those that are traded in markets, this article argues that, when viewed in light of the ways in which society’s views of corporations have changed, that definition is impoverished. Public corporations are not just creatures of Wall Street. They are creatures of Main Street, the media, bloggers, Congress, and the government. Indeed, the article argues, it is the failure of the fiduciaries of public corporations to understand their “publicness” that accounts for many of the recent scandals.

No Arbitrary Power: An Originalist Theory of the Due Process of Law

Abstract: “Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents.

The Flawed Fragmentation Critique of Structural Remedies in the Microsoft Case

Abstract: Among the proposed remedies in the Microsoft case are structural remedies that would create competition in operating systems for personal computers. One criticism that has been raised against such remedies is that they would lead to "fragmentation" of the Windows standard. According to this critique, the remedy would lead to a number of radically different and incompatible operating systems. As a result, these remedies would impose expensive porting costs on applications developers, leading to higher costs and less product variety for consumers. This paper examines the "fragmentation" hypothesis and concludes that fears of fragmentation and high porting costs resulting from Windows competition are unwarranted. The competing operating systems created by an effective structural remedy will start from the same code base and run on the same hardware platform, thereby reducing porting costs. In addition, the operating systems competitors will have the incentive to maintain backward compatibility and compatibility with each other, which will serve to reduce porting costs. Finally, porting costs can be reduced further by cooperation among the operating systems competitors. The cost of porting from one operating system to another will be far smaller than from the Windows operating system running on an Intel microprocessor to a new operating system running on a different microprocessor. Other papers related to the Microsoft Case: "Creating Competition in the Market for Operating Systems: A Structural Remedy for Microsoft" by Thomas M. Lenard. "A Fool's Paradise: The Windows World After a Forced Breakup of Microsoft" by Stan J. Liebowitz. "Breaking Windows: Estimating Some Costs of Breaking up Microsoft Windows" by Stan J. Liebowitz. Our database includes more than 20 other papers about the Microsoft case. To find them, please use an "abstract body" search,. and enter "Microsoft" as the search term.

Efficiencies in Defense of Mergers: 18 Months After

Abstract: In this overview of the new role of efficiencies in merger analysis, Chairman Pitofsky reexamines early critiques of the revised efficiencies section in the Merger Guidelines in light of four recent decisions from the federal courts. These early critiques came from both ends of the antitrust spectrum. Some enforcement officials contended that the revised section would make efficiencies the touchstone of merger analysis, opening the door to efficiency claims that would be either exaggerated or unrelated to consumer welfare. Members of the defense bar suggested that the revised section on efficiencies was so circumscribed by qualifications that the introduction of the ?revised? defense would make no practical difference. Chairman Pitofsky contends that experience over the last 18 months has revealed that both sets of critiques were mistaken. Although efficiency claims have rarely trumped a strong showing of anticompetitive effects either at the agencies or in court, the agencies have incorporated valid efficiency claims into their exercise of prosecutorial discretion and have not challenged their legitimate role in merger litigation. And although the agencies have taken efficiency claims more seriously, they have not allowed potentially efficient mergers to proceed when there is a strong likelihood of serious anticompetitive effects. Thus, the revised efficiencies section of the Merger Guidelines has accomplished its four primary objectives -- incorporating efficiencies directly into the assessment of likely competitive effects; testing efficiency claims against realistic and practical alternatives, not against hypothetical or improbable scenarios; requiring a stronger showing of greater efficiencies for mergers that could produce significant anticompetitive effects; and defining more clearly which efficiencies can be balanced against potential anticompetitive effects. Chairman Pitofsky then examines how courts and the agencies have addressed efficiency claims in four recent district court decisions. He cites FTC v. Staples, Inc. as a case where the court rejected efficiency claims that were exaggerated when measured against internal documents. Chairman Pitofsky also points to Staples as a case where leading firms in rapidly expanding markets will have difficulty showing that efficiencies such as improved advertising and greater geographic coverage could not be achieved through internal growth. Chairman Pitofsky then examines the assessment of efficiencies in United States v. Long Island Jewish Medical Center, where the court credited efficiency arguments advanced by merging hospitals. Special circumstances, including the hospitals? not-for-profit status and their agreement with the New York Attorney General to pass post-merger efficiencies on to consumers, made the hospitals? arguments more credible. Next, Chairman Pitofsky turns to the analysis of efficiencies in FTC v. Tenet Healthcare Corp., where the court rejected efficiencies that two merging hospitals could have achieved unilaterally and efficiencies that would have arisen only in separate relevant markets. The final opinion that Chairman Pitofsky discusses is FTC v. Cardinal Health, Inc., where the court acknowledged that two drug wholesaler mergers could produce efficiencies, but ultimately determined that continued competition among the four firms would continue to produce consumer benefits without risking anticompetitive effects. Chairman Pitofsky contends that Cardinal Health is a useful and proper reminder that although entry and efficiencies have assumed a greater role in merger analysis, courts and agencies will continue to examine them in light of market shares and potential anticompetitive effects. Acknowledging that any definitive analysis of the efficiency claims would be premature, Chairman Pitofsky offers three interim conclusions about efficiencies under the revised section of the Merger Guidelines. First, he points out that efficiencies will rarely overcome strong proof of likely anticompetitive effects. Second, he observes that efficiency claims are more likely to be persuasive when they are not exaggerated, and that unrealistic efficiency claims may undermine credibility with enforcement officials and judges. Finally, Chairman Pitofsky predicts that defense counsel will become more comfortable and effective over time in addressing efficiency claims to enforcement officials and courts.