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.

Reforming Shareholder Claims in ISDS

Abstract: At its 37th session, UNCITRAL Working Group III (WGIII) indicated that it would study shareholder claims as a possible subject of reform. This paper aims to support WGIII and the UNCITRAL Secretariat in this effort, with a particular focus on claims for shareholder reflective loss (SRL). ISDS stands alone in empowering shareholders to bring claims for reflective loss. National systems of corporate law generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though neither necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post costs on States and various corporate stakeholders (particularly creditors), and creating perverse incentives likely to raise the cost of doing business ex ante. The paper first explains ISDS tribunals’ permissive approach to SRL. Second, it sets out the harms caused by allowing ISDS claims for reflective loss. Third, it explores possible justifications for allowing SRL claims in this context. We suggest, however, that potential benefits of SRL can be realized through less invasive means. Fourth, this paper explores how States and tribunals have sought to mitigate problems associated with SRL. While important, these solutions have mostly proven irregular, inconsistent, and incomplete. Fifth, this paper concludes by setting targets for reforming shareholder claims in a balanced manner, taking into account the diversity of interests at stake.

Curing Congress’s Ills: Criminal Law as the Wrong Paradigm for Congressional Ethics

Abstract: This brief piece argues that certain common misperceptions about congressional ethics enforcement (misperceptions advanced most recently in Paul M. Thompson's response to my Comment calling for the creation of Congressional Commissioners for Standards) result from a confusion of the purposes of congressional ethics with those of the criminal law. Congressional ethics is not simply about punishing rulebreakers; rather, it aims to promote clean government and public trust in Congress and its members. This understanding of the proper purpose of congressional ethics allows us to see more clearly both what is wrong with the current system and how certain reforms would provide useful correctives.

Biden And New Congress Tackle COVID-19, ACA.

Abstract: President Joe Biden will try to navigate a Congress narrowly controlled by Democrats while acting administratively as well

The Case for Mediation: The Things that Mediators Should Be Learning and Doing

Abstract: This essay is based on the Keynote Address delivered to the 8th Symposium on Mediation at the Chartered Institute of Arbitrators in London, UK. The article uses two memes of intellectual development -- changing ideas of physical space, through new forms of architecture, and legal evolution, to review how mediation has contributed to both conceptual and behavioral changes in legal and human disputing. The essay reviews key conceptual shifts from uses of "battles" and "trials" and different conceptions of "truth" in dispute resolution to more complex notions of game theoretic and human notions of problem definition and solution seeking, contributed by a variety of constituent disciplines both in and out of law. The article reviews some of the successes of modern dispute handling, not necessarily "resolution," for socially productive uses of conflict, based on conflict theory. It then discusses modern challenges in the forms of resistances to mediative forms of conflict management, variable by legal system and cultural "nodes" or differences, the new online and other forms of "non-human" dispute resolution and regulatory complexity. The essay concludes with observations of practice innovations and challenges and new uses for mediation, such as with complex issues of policy formation and deliberation, and international and transnational applications.

State Finance in Times of Crisis

Abstract: As recent events illustrate, state finances are pro-cyclical: during recessions, state revenues crash, worsening the effects of economic downturns. This problem is well-known, yet persistent. We argue here that, in light of predictable federalism and political economy dynamics, states will be unable to change this situation on their own. Additionally, we note that many possible federal remedies may result in worse problems, such as creating moral hazard that would induce states to take on excessively risky policy, both fiscal and otherwise. Thus, we argue that policy makers should consider so-called “automatic” stabilizers, such as are found in the federal tax system. We present an argument from micro-economic foundations suggesting that the federal Alternative Minimum Tax has potentially salutary - and heretofore unrecognized - effects that counteract pathologies of state budgets over the business cycle. Namely, as incomes grow and the AMT hits more state residents, state spending becomes more expensive in flush times as the federal tax subsidy for state and local taxes is reduced. Conversely, when state fiscal health deteriorates, the federal tax subsidy grows as fewer state residents fall under the AMT, boosting taxpayer support for state spending. This stabilizing mechanism has the potential to overcome problems state politicians face committing to saving during boom times and spending during bust times. We present empirical evidence suggesting that the AMT does indeed provide some degree of fiscal stabilization in accordance with micro-theory. We provide policy suggestions regarding how the AMT could be modified to leverage this stabilization effect. Calls to “reform” the Alternative Minimum Tax pre-date the recent economic downturn. AMT reform has appeared in many congressional stimulus proposals, but significant cut-backs are unlikely as federal deficits are projected to grow for the foreseeable future. Our argument here implies that any AMT reform effort should consider whether the AMT’s stabilizer function could be replaced by any other viable mechanism.