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.

The Political Animal and the Ethics of Constitutional Commitment

Abstract: In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality - an account that was influential among the Framers of the U.S. Constitution and that remains influential today - Chafetz suggests that at least some of our constitutional commitment can be explained in terms of a perceived moral obligation to be ruled by the communal determination of the public good. In other words, Chafetz argues, Levinson’s otherwise compelling account overlooks the importance of an ethics of constitutional commitment.

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.

Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism

Abstract: Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role. But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members are platforms. These platforms—companies like Facebook, Google, and Twitter—shun the media label even as they function as information gatekeepers and news editors. Their norms and values, including personalization and speed, stymie watchdog reporting. The Networked Press regime significantly threatens watchdog journalism, speech that is at the core of the press’s constitutional role. Yet, limited by the state action doctrine, the First Amendment cannot shield this speech from a threat by private actors like platforms. Today, the First Amendment is insufficient to protect a free press that can serve as a check on government tyranny. This article argues that we must look beyond the First Amendment to protect watchdog journalism from the corrosive power of platforms. It describes the limits of the First Amendment and precisely how platforms threaten watchdog journalism. It also proposes a menu of extra-constitutional options for bolstering this essential brand of speech.

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

Is Military Justice Sentencing on the March? Should It Be? And If So, Where Should It Head? Court-Martial Sentencing Process, Practice, and Issues

Abstract: This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability. However, for the reasons stated, these issues are not presented in detail here.