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.

Toward a Federal Common Law of Bankruptcy: Judicial Lawmaking in a Statutory Regime

Abstract: Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion. Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts' equitable powers appears to have been repealed by what one judge has called one of the clumsiest acts of Congress. The statutory section to which courts now look, 11 U.S.C. § 105(a), is inapplicable, and its use as a framework for evaluating non-Code practices has led to questionable decisions. Likewise, the historic limitations of the pre-Code practices doctrine are unsatisfactory and have produced contradictory Supreme Court decisions. Instead, this article argues that non-Code practices are better thought of as a federal common law of bankruptcy. Federal common law is judge-made law that depends on precedent and judicially-devised tests rather than unpredictable discretion or rigid application of statute. Viewing non-Code practices as federal common law would lead to more predictable and consistent decisions without sacrificing the judicial flexibility necessary to facilitate corporate reorganizations.

Future Oversight of Recombinant DNA Research: Recommendations of an Institute of Medicine Committee

Abstract: The National Institutes of Health (NIH) established the Recombinant DNA Advisory Committee (RAC) in 1974 in response to public concerns about the safety of manipulating genetic material through recombinant DNA (rDNA).1 Jesse Gelsinger’s death during a genetic therapy trial in 1999 further galvanized societal apprehensions.2 The RAC—a federal advisory committee to the NIH director—performs multiple functions: reviewing all gene transfer protocols, selecting specific protocols for public review, and acting as a national forum for rDNA research.3 Through its Gene Transfer Safety Assessment Board the RAC also surveils, aggregates, and analyzes adverse events across all human gene transfer trials.

Are There Nothing But Texts in this Class? Interpreting the Interpretive Turns in Legal Thought

Abstract: Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship: Only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted, particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep, although it has come in what, at least at first glance, seems to be a surprising place. Gadamer has had less of an impact than one might have thought on conservative or liberal legal thought, particularly given the Burkean conservatism of much of his writing, and the striking similarities between his own and liberal theories of adjudication. But in the Canadian, American, and English critical legal studies movement, Hans-Georg Gadamer's influence has been undeniable, and recognition of the debt owed has hardly been begrudging. Indeed, it is no exaggeration to say that Hans-Georg Gadamer directly or indirectly set much of the agenda for the entire founding generation of critical legal scholars. That is no insignificant feat, given that the critical legal studies movement was the first movement since the legal realists of a half century earlier to be rigorously and consciously critical, rather than reformist, of our most basic legal norms, institutions, and adjudicative practices. Gadamer set the direction, tone, and much of the content of our critical contemporary movements in legal thought. What I want to offer in this article commenting on the articles in this Symposium celebrating the centennial of Gadamer's birth is an interpretation of the interpretive turn itself, and I want to do it toward the end of criticizing where the interpretive turn has taken us. The critical interpretation I will offer of the interpretive turn will emphasize two of its relatively unremarked features. First, I want to emphasize, indeed insist upon, its multiplicity. There has been, I will argue, not one interpretive turn in legal theory, but several, or at least, several distinct ways in which the interpretive turn has altered the direction of critical legal thought. More concretely, as I will argue in the bulk of this Article, there have been at least seven such turns in legal thought, and my first goal is simply to map them out. Second, I want to try to clarify, in my interpretation of various interpretive turns of legal theory and critical legal theory, not so much the nature of hermeneutic interpretation, the subject in some way of all of these articles, as the nature of the turn. Every turn in life is a turn away from something as well as a turn toward something. This is as true of turns in critical legal theory as it is true of turns on the Appalachian Trail. My basic claim is that every interpretive turn in critical legal thought has entailed a turn away from something, as it has directed us toward interpretation. I want to highlight what the interpretive turn has turned us from, rather than what it has turned us toward.

Reviving the Nixon Doctrine: Nsa Spying, the Commander-in-Chief, and Executive Power in the War on Terror

Abstract: When the President does it, that means that it is not illegal. So Richard Nixon infamously defended his approval of a plan to engage in warrantless wiretapping of Americans involved in the antiwar movement in the 1970s. For thirty years Nixon's defense has stood as the apogee of presidential arrogance. But of course Nixon was proved wrong. The wiretapping plan was shelved when FBI Director J. Edgar Hoover, of all people, objected to it. Nixon's approval of the program was listed in the articles of impeachment, and ultimately he was forced to resign. Nixon learned the hard way that presidents are not above the law. In defending the NSA spying program, at least until the recent about-face, as well as in its views on enemy combatants and torture, the Bush administration has essentially revived the Nixon doctrine. This essay argues that the Bush administration's defense of the NSA spying program (and of unchecked presidential authority over enemy combatants and interrogation techniques) is fundamentally flawed, both as a matter of law and as a matter of national security policy. The argument that Congress authorized the program defies the most basic principles of statutory construction. The claim that the Commander in Chief has uncheckable authority with respect to "the means and methods of engaging the enemy" is contrary to the text of the Constitution, the structure of checks and balances, and a long line of Supreme Court precedent. And no Fourth Amendment precedent supports the notion that the president may wiretap Americans without probable cause or a warrant.

States’ Evolving Role in the Supplemental Nutritional Assistance Program

Abstract: States have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In addition, giving states a stake in SNAP’s administration often has co-opted them to support, or at least avoid attacking, the program.