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 Effects of Shareholder Primacy, Publicness, and 'Privateness' on Corporate Cultures

Abstract: There is widespread belief in both scholarship and business practice that internal corporate cultures materially affect economic outcomes for firms. In turn, there is also a growing belief that corporate governance arrangements materially affect corporate cultures. If this is true, it suggests an intriguing three-link causal chain: governance choices influence corporate performance, at least in part via their effects on internal culture. This essay, written for the “Berle XI” symposium, explores that possibility. This subject is important to lawyers and legal scholars because of the symbiotic nature of law and governance, with an increasing risk of enhanced corporate criminal and civil liability when cultures are judged to be deficient. Finding the right place for culture in governance is a heavy lift. To this end, the first part of the essay introduces the battle over corporate cultures as part of a broader contestation about primacy in corporate governance, offering a perspective on the meaning of corporate culture, its place in political debates over corporate responsibility, and its usefulness to corporate law. The first part also tries to define with more clarity the differences between the cultural norms of shareholder primacy and publicness. The second part turns the reader’s attention to the overwhelmingly diverse scholarly perspectives on corporate culture and the place of corporate culture within the overarching canopy of social culture. The essay then moves on to ask about the work being done by corporate culture in terms of both law and governance, and the extent to which this can or should be thought of in functionalist terms. Then comes the main pay-off: an assessment of arguments in light of all the foregoing about the cultural causes and effects about shareholder primacy, publicness and “privateness.” Suppose managerialism triumphed in the governance wars so as to gain its desired level of autonomy from shareholder pressures for boards and managers. Would we then expect to see a cultural shift inside corporations toward greater honesty and civil engagement, and if so why? If not, what then? The essay concludes with a closer look at the politics surrounding the corporate culture wars.

Hardwiring Accountability for Mass Atrocities

Abstract: This paper identifies and examines three important trends in the development of the global architecture governing accountability for atrocity crimes. First, U.N. political bodies have increasingly established fact-finding and investigative missions with an explicit mandate to collect evidence for use in criminal prosecutions in a variety of potential jurisdictions. This paper examines such fact-finding and investigative mechanisms created by different U.N. bodies for atrocity situations in Iraq, Myanmar, and Syria. These mechanisms face challenging and novel methodological questions in gathering and sharing evidence. Second, the recognition by international bodies of the potential value of national courts reflects the urgency of seeking justice for horrific atrocities occurring seemingly without end. The reach toward national jurisdictions by international bodies lays bare the lack of political consensus in the international community on whether to use international courts or create new hybrid or ad hoc courts for the atrocity situations in Syria, Iraq, and Myanmar. But it also reflects a growing recognition at the international level of the normative legitimacy of pursuing justice in foreign, national courts. Concurrently, a growing number of states are bolstering their ability to pursue justice by establishing specialized national investigation and prosecution units to exercise foreign jurisdiction over atrocity crimes. These units interact with each other and with the new international investigative mechanisms to enhance the possibilities for justice. Third, a growing milieu of sophisticated, non-governmental actors and organizations are seeking criminal justice and accountability for atrocity crimes by collecting evidence for eventual use in criminal prosecutions, filing cases themselves, or compelling national authorities to prosecute. Some of these groups augment their efforts with advocacy, or complement their litigation-focused work by partnering with grassroots mobilization campaigns that increase the demands on national justice authorities at the domestic level.

Digital Health Passes in the Age of COVID-19: Are 'Vaccine Passports' Lawful and Ethical?

Abstract: As COVID-19 vaccination rates in high-income countries increase, governments are proposing or implementing digital health passes (DHPs) (vaccine “passports” or “certificates”). Israel uses a “green pass” smartphone application permitting vaccinated individuals’ access to public venues (eg, gyms, hotels, entertainment). The European Union plans a “Digital Green Certificate” enabling free travel within the bloc (see eTable in the Supplement). New York is piloting an IBM “Excelsior Pass,” confirming vaccination or negative SARS-CoV-2 test status through confidential data transfers to fast-track business reopenings. This paper examines the benefits of DHPs, scientific challenges, and whether they are lawful and ethical.

Things We Do with Presumptions: Reflections on Kiobel v. Royal Dutch Petroleum

Abstract: The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute’s text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. But, in Morrison v. National Australia Bank Ltd., the Court recognized that “context” can be taken into account as well. And, in Kiobel, the Court recognized that a statute’s “historical background” might also “overcome” the presumption. These methods of rebutting or overcoming the presumption are discussed in part II.When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. Applying the presumption in such a case, the Court explained, requires identification of “the ‘focus’ of congressional concern” under the relevant statute. If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute’s applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. How to satisfy the presumption is discussed in part III.The Court in Kiobel may have recognized a fourth thing that might be done with the presumption against extraterritoriality: the presumption might in certain circumstances be displaced. The majority used this term in the final paragraph of its opinion, a paragraph that has generated much debate about what sorts of questions the Court left open in Kiobel. The Court wrote that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The Court may have been using the term to refer to the issue I have refer to as the “satisfying” of the presumption. There is also some basis, however, for understanding the Court to have left open the possibility that the presumption might be inapplicable or rebutted with respect to some claims brought under the ATS for violations of customary international law. What the Court meant by “displacing” the presumption is the subject of part IV.

Explanations and the Preponderance Standard: Still Kicking Rocks with Dr. Johnson

Abstract: This paper responds to a previously unpublished article by the late evidence scholar (and our friend) Craig Callen. Craig’s article and our response will be published in the Seton Hall Law Review, in a symposium issue dedicated to the work of Michael Risinger. We thank Michael for unearthing Craig’s manuscript—which discusses our theory of juridical proof in terms of the relative plausibility of competing explanations—and for inviting us to respond. In this response, we discuss developments in the literature since the manuscript was written, and we explain how our theory accommodates the concerns Craig raises regarding sufficiency of the evidence. Our discussion focuses, as does Craig’s article, on motions for summary judgment and judgment as a matter of law, using employment-discrimination cases as illustrative.