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.

State Law, the Westfall Act, and the Nature of the Bivens Question

Abstract: In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.The concerns that led these courts to decline to recognize a Bivens action, if truly implicated by these cases, would be reasons to bar the suits from the courts altogether. In contrast, as we explain in this essay, the Bivens question was at least initially understood as whether a federal cause of action should supplement existing state-law remedies. Thus, these recent lower-court decisions reveal a fundamental misapprehension about the intended relationship between Bivens and state law. So understood, and as courts have already recognized in other contexts, the very concerns relied upon in these recent national security cases would, if anything, have traditionally supported a federal remedial regime rather than one under state law. As the Supreme Court's recent decision in Minneci v. Pollard illustrates, the principal reason to disfavor recognition of Bivens remedies should be the availability of adequate remedies under state law, and not a desire to immunize the relevant officers from any liability whatsoever. Thus, unlike these recent cases, decisions not to recognize a Bivens remedy should leave the plaintiff free to pursue whatever recourse state law may provide.Although this view of Bivens was generally shared by both its supporters and detractors when it was decided, it has receded from view largely thanks to the Westfall Act, which most courts and commentators today read as preempting all state-law tort claims against federal officers acting within the scope of their employment. In our view, this conclusion reflects a surprising misreading of the Act, which specifically exempts from its preemption provision any claim "which is brought for a violation of the Constitution of the United States," presumably including nonfederal tort claims grounded on federal constitutional violations. Indeed, given that the legislative history of the Westfall Act suggests that Congress merely sought to preserve the status quo, it is odd to read the statute as dramatically altering the nature and consequences of the Bivens question.Nevertheless, if the Westfall Act does indeed have this effect, we conclude that it should therefore significantly strengthen the argument for recognizing Bivens claims, since the Act takes away the main alternative remedial scheme that previously existed. Indeed, an (incorrect) interpretation of the Westfall Act as preempting nonfederal remedies but not authorizing equivalent federal remedies may well raise significant constitutional questions -- questions that have thus far been dramatically underappreciated by the lower courts, but that must be taken seriously going forward. And if courts conclude that, in appropriate cases, the question really should be "Bivens or nothing," they must recognize that either answer requires judicial lawmaking -- and not just recognition of a federal cause of action.

Global health justice : a perspective from the global South on a Framework Convention on Global Health

Abstract: A global coalition of civil society and academics recently launched the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI), which is developing a post-Millennium Development Goal (MDG) framework for global health. The Framework Convention proposes establishing fair terms of international co-operation, with agreed-upon mutually binding obligations to create enduring health system capacities, meet basic survival needs, and reduce unconscionable inequalities in global health. States that bear a disproportionate burden of disease have the least capacity to do anything about it. The richer states are deeply resistant to expending the political capital and economic resources. When they do act, it is often more out of narrow self-interest or humanitarian instinct than a full sense of ethical or legal obligation. The result is a spiralling deterioration of health in the poorest regions, with manifest global consequences and systemic effects on trade, international relations, and security.

Global Rules for Global Health: Why We Need an Independent, Impartial WHO

Abstract: Over the past few years the World Health Organization (WHO) has been undergoing a significant reform process. The immediate trigger was a budget crisis in 2010 that spurred massive lay-offs at the global agency. But at a more fundamental level, deeper systematic changes in global health governance have made reform imperative. While WHO reform draws relatively little attention outside diplomatic circles in Geneva, at stake are critical issues that will impact public health everywhere. This article’s key messages are: Recent outbreaks of MERS highlight the need for a global response to infectious disease; The WHO has had a crucial role in developing rapid information sharing on new infectious threats and fair arrangements for access to drugs and vaccines and to research and development; The WHO is the only international agency that can broker such global rules but is badly underfunded to perform this core function; The MERS outbreaks offer an opportunity to reform WHO financing.

Shared Collection Development, Digitization, and Owned Digital Collections

Abstract: While library models already exist for sharing physical materials and joint licensing, this paper envisions an aspect of future collections involving a national digital collection owned, not licensed, by libraries. Collaborative collection development, digitization, and digital object management of owned collections can benefit societies in multiple ways, from expanding access to users otherwise unable to reach these materials, to preserving content even when disaster strikes, to reducing duplication of effort and expense in collection or digitization. This article will explore both the benefits of and the challenges to this type of collaboration.

Culture in Law and Development: Nurturing Positive Change. By Lan Cao. New York, New York: Oxford University Press, 2016. Pp. xi, 533. Index.

Abstract: quite know where to start. And, as the goal is to simplify, rather than complicate the life of the potential dabbler, let me flag two particularly useful principles from the field of comparative law: functional equivalence and case selection. Functional equivalence is the idea that in studying a foreign system, one should not look for an identical rule, but rather for a rule that serves the same function. Case selection involves the principle that by carefully selecting country cases, one can make persuasive arguments with less data. The traditional approach of international lawyers to comparative study—the “brute force” approach—is highly inefficient. For example, an international lawyer trying to establish that certain weapons are prohibited by international custom would typically try to look far and wide, for as many treaty ratifications, declarations, military manuals, and other materials he could easily get his hands on, and then give up when he reached thirty or forty countries. That is not only exhausting, but also leaves him open to criticisms that many countries, and indeed entire categories of legal systems, are likely absent from his sample. In contrast, even a single strategically chosen observation might carry more weight. For instance, if even Nazi Germany, when facing the prospect of total defeat, refused to use particular weapons, this would greatly bolster the claim that this weapon was prohibited by international custom. I have written separately on sampling, most similar and most difficult case design, and other principles of case selection that comparativists have settled on.5 But here, I am writing simply to emphasize that by strategizing carefully about what function particular rules play, and which cases to examine in depth, the dabbler will both follow best methodological practice and save precious time. In sum, we need, as a field, to know whether particular positions are widely accepted around the world, or peculiar to our home traditions. International lawyers must become dabblers in comparative law. This is a hard, but worthwhile task, so shortcuts and collaborations are essential.