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.

Tom Paine's Constitution

Abstract: In Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that "in America the law is king." What, precisely, is the "law" that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our revolution but also of the rights of man everywhere, presage our modern practice of rights-based constitutionalism? This reading – in America, constitutional law is king – might also make Paine an early friend of judicial review, as he was unquestionably also a friend of United States constitutionalism, both federal and state. Paine’s manifesto can thus be read as having foreseen the unfolding of our modern court-centered constitutional consciousness. This Article argues that this is an attractive but untenable reading of Paine’s philosophy and offers evidence that Paine’s conception of the Constitution and law itself diverge crucially from dominant understandings. The Article then asks how modern constitutional practices might be different if Justice Marshall had enforced Paine’s conception of the Constitution in Marbury and McCulloch, and concludes with some thoughts on what we have lost by turning away from Paine’s constitutional vision.

Outsourcing Fraud Detection: The Analyst as Dodd-Frank Whistleblower

Abstract: The Dodd-Frank Act ushers in a new era of whistleblower law. Congress, for the first time, is rewarding the providers of “independent analysis” that helps the Securities and Exchange Commission (SEC) prosecute fraud. To receive a bounty under section 922(a) of the Dodd-Frank Act, “independent knowledge” of fraud is not required. While the statute recognizes the importance of securities analysts in identifying violations, the rules interpreting this language fall short in considering and accounting for the costs to whistleblowers in the financial services industry.This Article first argues that if SEC bounties are intended to compensate whistleblowers, the SEC’s decisions as to the size of the bounty should reflect not only the intrinsic value of the information to the SEC, but also the whistleblower’s cost of providing that information. Specifically, Rule 21F-6, which allows the SEC to consider whistleblower costs in determining the size of the award, should be changed to require the SEC to consider those costs.Second, this Article considers the recent economic research about whistleblowers and concludes that the SEC cannot afford to discourage hedge fund managers and other buy side analysts from participating in the SEC program. To avoid that outcome, the SEC should allow these actors to “double-dip,” or collect bounties despite profiting on short positions. Finally, the SEC should clarify when “independent analysis” qualifies for a bounty.

One Dollar, One Vote: Mark-to-Market Governance in Bankruptcy

Abstract: In bankruptcy, creditors exercise governance rights over a debtor firm—they vote to accept or reject a proposed plan of reorganization These governance rights are apportioned based on the amount of a creditor’s claim: “one dollar, one vote” This allocation assumes a claim reflects the creditor’s true economic interest in the debtor, and the creditor is thus presumed to use its governance rights in the bankruptcy to maximize the value of the debtor, and hence its claim Yet a creditor’s financial interest is not always limited or even linked to the face amount of its claim For example, the interest of employee creditors extends beyond recovering back pay to ensuring future employment, while a landlord’s interest may be less in recovering back rent than in being able to terminate a lease so it can relet the property at a higher rate Historically, this has been a discrete and manageable problem Two recent developments in financial markets, however, have made the mismatch between a creditor’s total economic interests and its claim—and the concomitant governance rights—more problematic First, a robust market has arisen in bankruptcy claims, enabling investors to purchase bankruptcy claims—and thus governance rights—at a discount Second, the emergence of derivatives markets now enables investors to go “short” on the debtor and benefit from its misfortune Combined, these developments enable investors to cheaply acquire governance rights in bankruptcy and then use that power to further the value of their extraneous interests rather than maximizing the value of their bankruptcy claim As a result, the “one dollar, one vote” principle underlying bankruptcy governance is now in question This Article illustrates problems that result from the divergence of economic interests and governance rights in bankruptcy It shows that existing bankruptcy law tools, such as disclosure, vote designation, trading bars, equitable subordination, and equitable disallowance, fail to provide adequate remedies for the problems Accordingly, we propose an administrable system of “mark-to-market governance,” in which the governance rights, but not the economic distribution rights, associated with a creditor’s bankruptcy claim would be adjusted to reflect the creditor’s true net economic position Under mark-to-market governance, hedgers and shorts would be subject to proportional dilution, claims purchasers would have their governance rights discounted based on purchase price, and secured creditors would have their credit bidding rights limited to the value of their collateral Together these adjustments will promote the core bankruptcy policies of maximizing the value of the debtor firm and equitably distributing its value

Aiding and Abetting Persecutors: The Seizure and Return of Haitian Refugees in Violation of the U.N. Refugee Convention and Protocol

Abstract: Pursuant to Executive Order 12,807 of May 23, 1992, the “Kennebunkport Order,” United States Coast Guard cutters have been intercepting boatloads of Haitian citizens in international waters off the coast of Haiti and turning them over to the Haitian authorities in Port-au-Prince. No questions are being asked to determine if any of these citizens are bona fide refugees fleeing persecution. All are simply returned. Does the Protocol relating to the Status of Refugees (Protocol), to which the United States is a party, permit the U.S. government to do this? That question is now before the United States Supreme Court. Regarding United States obligations under the Protocol, the United States government claims that the United States may seize refugees and return them to a country of persecution, as long as such refugees are not within United States borders. This Article examines the Convention Relating to the Status of Refugees (Convention) and the Protocol in light of that claim.

The Dawn of Social Intelligence (SOCINT)

Abstract: More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data about social relationships. What distinguishes this type of information from more traditional forms of intelligence is that it draws from novel, digitized sources, such as metadata, social media, and geolocational information, to construct a detailed picture of networks — which themselves then serve as starting points for further analysis. The telephony metadata program initiated under Section 215 of the USA PATRIOT Act provides one prominent example. Numerous other initiatives are underway. These collection programs carry significant risks. The construction of ZunZuneo demonstrates how SOCINT can be used not just to understand social dynamics, but to drive political, economic, or social change. As a constitutional matter, the broad collection of social data is at cross-purposes with the Fourth Amendment, with sobering consequences for individual rights. SOCINT thus ought to be treated as a form of collection in its own right, subject to unique restrictions, and not as a concomitant of other collection techniques.