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.

Joseph in Lawyerland

Abstract: As Alice wanders through Wonderland in an unreal space in real time-a dream-learning backward truths from illogical creatures who speak in paradoxes, so Joseph figuratively wanders through lawyerland in an unreal time, but in a very real space-Manhattan-conversing with his thinly fictionalized friends, all of whom happen to be lawyers, about their lives and practices in law. As Joseph's lawyers talk with him about the law they practice, they uncover, through White Rabbit and Cheshire Cat-like illogical precision, a chaotic, unkempt, unconscionably reckless, often cruel, and sometimes pathological legal wilderness. The legal terrain these lawyers occupy is not an inviting one: Lawyerland, according to Joseph and his friends, is an inhumane place. Even more striking, though, than the cruelty of their world, is what Joseph's lawyers in Lawyer-land tell Joseph about the nature of lawyers' knowledge. What lawyers know of law, and of people, Joseph's lawyers tell him, and he tells us, are the limits of our knowledge, both ours and theirs, regarding both law and the human condition. In this regard, Joseph's lawyers are virtually ironic templates (or as one of his conversationalists would put it, ironic "phenotypes"): Like all ironists, what Joseph's lawyers know, they know from and of experience; and what they know, is that lawyers know the boundaries of what we know. They know, for example, that nonlawyers don't know the nature of the legal beast; they know that lawyers keep secrets; they know lawyers "secrete"; and they know that lawyers defraud others. They know that lawyers lie, even if only by necessity and if only by virtue of knowing too much; they know that lawyers "invented spin," and, when they have to, "change the story"; they know that lawyers use knowledge to game the system; and they know that there is much that lawyers don't know precisely because lawyers don't want to know it.

New Year Brings New ACA Developments

Abstract: A new year ushers in new Affordable Care Act regulations, court decisions, and hearings in the US House of Representatives.

Insuring Maritime Trade with the Enemy in the Napoleonic Era

Abstract: During the late eighteenth and early nineteenth centuries, England and France were continuously at war. Such upheaval naturally upset the maritime trade between England and the Continent. Although there had been free-trade voices in the eighteenth century who thought trade even with enemies made commercial sense, by the end of the eighteenth century, the law clearly held that trading with the enemy was illegal. Strict adherence to the legal prohibition against trading with the enemy, however, would have devastated British commerce. It was in this environment that the British license system had been born. A license was a grant from the crown that allowed its holder to trade with the enemy. To supplement the license, simulated papers were used to evade capture and condemnation by the enemy. The use of simulated papers was acknowledged in courts of law, and marine insurance policies expressly authorized journeys that used simulated papers. Indeed, the underwriters sometimes refused to insure unless false papers were used.Courts protected merchants by allowing them to recover under insurance policies, as long as those policies expressly allowed the use of simulated papers. The rationale was that this was necessary to protect British commerce. At first, the benefits of such policies applied only to British merchants, but in the early 1810s, first the Admiralty Court, then the common law courts, expanded the construction of insurance policies to benefit alien neutrals, and eventually alien enemies. The irony of these developments was that the end result in practical effect came close to the free trade voices that had later been crowded out by case law.

The AT&T/Time Warner Merger: How Judge Leon Garbled Professor Nash

Abstract: The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV industry, which this decision may will encourage and permit. This commentary offers some reflections on Judge Leon’s opinion, not the future of the industry. It sets out a critical analysis of the court’s sceptical treatment of the Nash bargaining theory that formed the basis of the DOJ’s complaint and the economic errors he made. Judge Leon also rejected the empirical inputs that were used by DOJ’s expert economist, Professor Carl Shapiro, in his quantitative analysis, though this article will not analyse these issues. It will, however, raise questions about whether Judge Leon’s economic errors in analysing the bargaining model might have affected his interpretation of the evidence. The commentary also will offer some critical thoughts about the DOJ’s treatment of efficiencies from the elimination of double marginalization.

Rent-a-Bank: Bank Partnerships and the Evasion of Usury Laws

Abstract: “Rent-a-bank” arrangements are the vehicle of choice for subprime lenders seeking to avoid state consumer protection laws. In a rent-a-bank arrangement, a nonbank lender contracts with a bank to make loans per its specifications and then buys the loans from the bank. The nonbank lender then claims to shelter in the bank’s federal statutory exemptions from state regulation. The validity of these arrangements is the most bitterly contested legal question in consumer finance. The rent-a-bank phenomenon is a function of a binary, entity-based regulatory approach that treats banks differently than nonbanks and that treats bank safety-and-soundness regulation as a substitute for consumer protection laws. The entity-based regulatory system is based on the dated assumption that transactions align with entities, such that a single entity will perform an entire transaction. Consumer lending, however, has become “disaggregated,” so the discrete parts of lending—marketing, underwriting, funding, servicing, and holding of risk—are frequently split up among multiple, unaffiliated entities. The binary, entity-based regulatory system is a mismatch for disaggregated transactions involving a mosaic of bank and non-bank entities. The mismatch facilitates regulatory arbitrage of consumer protection laws through rent-a-bank arrangements, as nonbanks claim favorable regulatory treatment by virtue of the involvement of a bank in parts of a transaction. The vitality of rent-a-bank arrangements depends on legal doctrine. This Article shows that the “valid-when-made” doctrine used to support rent-a-bank arrangements, is not, as claimed, a well-established, centuries old, “cardinal rule” of banking law, but a modern fabrication. The doctrine is not valid, but made up. Because the doctrine never existed historically, it cannot be essential for the smooth functioning of credit markets. This Article argues that the better approach to disaggregated transactions is a presumption that bank regulation does not extend beyond banks, coupled with an anti-evasion principle that looks to substance over form. Such an approach would create greater certainty about the legality of transactions, while effectuating both state consumer protection laws and federal bank regulation policy.