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.

Ordered Liberty and the Homeland Security Mission

Abstract: This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism -– to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant review to decision-making –- all of which depend on the integrity and judgment of government lawyers.Meaningful oversight protects our way of life. It also protects our security by helping decision-makers get it right on the front end of a decision, rather than investigating on the back end. This model does not detail whether civil service rules should apply to the Homeland Security Department, or whether military commissions are a good idea. The paper will suggest some principles and lessons learned that can be applied to such questions. In the process, two false dichotomies will hopefully be debunked: first, that security and liberty conflict; and, second that oversight and security conflict.

Introduction and Conclusion, Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question

Abstract: This posting provides the covers and introductory pages, Introduction and Conclusion from the Preemption Choice book published by Cambridge University Press. The book takes a different approach to preemption than the usual focus on judicial preemption doctrine. Instead, prompted by increasingly aggressive executive branch assertions of preemptive power in recent years and a burgeoning body of preemption decisions in the courts, the book's chapters analyze preemption as fundamentally a question of regulatory design choice by numerous actors and institutions. Each chapter offers its own focus and analytical frame, but a theme explored throughout the book is that judges, policymakers and scholars assessing preemption choices should pay greater attention to the benefits of regulatory overlap and interaction, especially opportunities for regulatory learning. A place undoubtedly remains for preemptive regulation, but preemptive regimes also have costs. The book starts in Part I with three chapters examining underlying federalism theory, history, and variables influencing policymakers' choice of whether to make federal law preemptive of state regulatory or common law. After Professors Robert Verchick and Nina Mendelson lay out central concepts and debates over preemption, especially in light of federalism theories, Professor Robert Schapiro explores the concept and benefits of "polyphonic federalism." Professor David Vladeck looks at the effects of preemptive regimes, especially on common law claims, in light of prevalent forms of regulatory failure. Part II offers two chapters exploring the "layered government norm," focusing on the politically prevalent choice to retain concurrent and overlapping federal and state regulation. Professor Trevor Morrison argues that the role of state attorneys general should be specially protected from preemption claims. Professor William Buzbee explores the distinctions between federal regulatory floors and ceilings, showing how floors preserve the benefits of institutional diversity. Part III focuses on judicial preemption doctrine and interpretive choices, including Professor Christopher Schroeder’s succinct canvassing of Supreme Court preemption doctrine, Professor Sandi Zellmer’s analysis of the frequent judicial failure to give weight to savings clauses, and Professor Robert Glicksman's chapter examining federal preemption arguments even in the face of federal inaction. This Part also includes a chapter by Professor Bradford Clark, who argues that due to the U.S. Constitution's procedural hurdles to creation of "supreme" federal law, preemption debates require close attention to the process generating claims of preemptive effect. Professor William Funk’s chapter explores the preemptive effects of agency actions. The closing Part IV starts with Professor Thomas McGarity’s chapter analyzing the "regulation-common law feedback loop" and the resulting mutual learning that is facilitated by non-preemptive regimes, while Professor Andreen offers insights from the experience of delegated program federalism under the Clean Water Act. The part's last chapter, co-authored by Professors David Adelman and Kirsten Engel, draws insights from biological adaptation and modern ecosystem theory for preemption choice, favoring regulatory regimes allowing for dynamism and adaptation. The book's closing chapter by Professor William Buzbee distills insights from the chapters to derive a menu of preemption choice variables.

Introduction: Commentaries on Ensuring Corporate Misconduct by Tom Baker and Sean J. Griffith

Abstract: This essay reviews some of the more striking findings in Tom Baker and Sean J. Griffith's Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (2010), particularly concerning the tension between two competing narratives of shareholder litigation—one stressing the important deterrent effect of such litigation, the other viewing such litigation as abusive plaintiff opportunism. The essay then introduces commentaries on the book by Carol Heimer and Jodi Short, which follow.

Debate: Is the Filibuster Constitutional?

Abstract: With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogizing to a hypothetical rule requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. Chafetz concludes that historical practice fails to justify obstructionist tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.Professor Gerhardt attributes the Senate’s behavior to the lack of a majority committed to curtailing abuses of Senate procedure. He argues that the weaknesses of the traditional arguments against the filibuster underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at the same time and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions - such as holds and bitter partisanship - and finds that the solution to unsatisfactory behavior in the legislature is, and always has been, accountability at the ballot box.

Prefaces and Postscripts: Walzer’s Just and Unjust Wars Today

Abstract: This chapter is a retrospective of Michael Walzer’s Just and Unjust Wars (JUJW), as viewed from a distance of forty years. It considers the impact of JUJW at the time, and sets it in the context of contemporaneous events, both in the world and in philosophy: the aftermath of the Vietnam War, the 1977 Protocols Additional to the Geneva Conventions, the turn of U.S. foreign policy toward human rights, and the ascendancy of rights discourse in English-language philosophy. The essay explores the originality of JUJW both in substance and in style, and contrasts its philosophical method, embedded in history and essentially casuistic, with the dominant style of contemporary analytic just war theory. The chapter examines two aspects of the human rights doctrine Walzer develops in JUJW: its dependence on collective rights, and its connection with a broader humanism. The chapter concludes by discussing the threat contemporary populist nationalism poses to the human rights tradition that JUJW exemplifies.