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.

Litigation Finance: A Market Solution to a Procedural Problem

Abstract: In a system dominated by settlement, scholars, lawyers, and judges who want to promote accuracy in litigation strive to promote accurate settlements This effort typically relies on judicial intervention in pretrial practice, or on extrajudicial substitutes, to educate parties on the merits of their positions and induce them to settle for amounts that reflect those merits The goal is to make pretrial resolutions look more like adjudicated resolutions, albeit with less expenseThese reform efforts largely fail to address a major force that can skew settlements away from the merits: imbalances in risk preferences Settlements are a product not only of the parties’ expectations for trial but also of their tolerance for risk In deciding whether to settle or proceed to trial, parties must compare a given settlement amount with a range of possible trial outcomes, the precise distribution of which is uncertain When parties choose between a certain outcome and an uncertain outcome, their choice will be affected by their risk preferences And where one party is a repeat player and the other is a one-time participant, they will have very different risk tolerances — the one-time, risk-averse participant will be more fearful of proceeding to trial, more eager to settle, and in a weaker bargaining positionWhen imbalances in risk preferences skew settlements away from the merits, this is just as much a market failure as a failure of procedure Unlike the efficient markets we rely on to price all sorts of assets and liabilities, the market for litigation claims is uniquely limited to just two participants The plaintiff can sell only to the defendant and the defendant can deal only with the plaintiff For this reason, imbalances in risk preferences can lead to the mispricing of lawsuitsIf we want the settlement process to value lawsuits accurately, perhaps we should do the opposite of what scholars have done in the past We should consider making settlements look less like adjudications and more like market transactions If a party to a lawsuit is poorly equipped to bear litigation risk and fearful of being coerced into an unfair settlement, we would not rely on judicial intervention to save him Rather, we would empower the party to help himself via a market transaction If the weaker party could off-load risk via the market to someone better able to bear it, he might be able to counter the stronger party’s bargaining advantage Indeed, by enlisting the help of a third party that holds a diverse portfolio of litigation risk and is better able to bear such risk, the weaker party could bolster his negotiating position and secure a settlement that reflects the merits of the lawsuit rather than the bargaining positions of the partiesThis Article compares traditional approaches to promoting accuracy with an alternative, market-based approach It considers the nascent litigation markets that exist in this country and abroad, and the obstacles that have prevented their maturation into a viable solution Finally, the Article considers reforms to foster a more robust litigation market The goal is to shed new light on a litigation finance industry long viewed by the legal profession and the academy with disdain The Article recasts litigation finance as a potential engine for good — a force that may promote accuracy in adjudication where conventional reform efforts have failed

The Centenary of a Mistake: One Hundred Years of Corporate Criminal Liability

Abstract: This article argues that there is no justification for corporate criminal liability. First of all, corporations are not moral agents capable of morally praise- or blameworthy action, and hence are not properly subject to punishment. Secondly, criminal punishment of corporations is inappropriate because 1) it advances none of the legitimate purposes of punishment, 2) it creates an unacceptable risk of prosecutorial error or abuse, and 3) it is not necessary to address a public harm. The only purpose served by threatening corporations with criminal punishment is to shift the balance in power between the prosecution and defense in white collar criminal cases radically in favor of the prosecution. However, this is inconsistent with the inherent liberal bias of the criminal law that embodies the normative assessment that an unrestrained government is a greater danger to citizens’ well-being than any number of individual criminals. Corporate criminal liability cannot be theoretically justified because it is directly violative of the theoretical structure of Anglo-American criminal law.

Building a Better Seating Chart for Sovereign Restructurings

Abstract: Every sovereign debt restructuring in recent memory has wrestled with the problem of inter-creditor equity. Governments have discriminated among creditors in ways that were hard to predict and often were not revealed until after a debt default. In contrast, debts of firms, individuals and even localities are ranked in order of priority established by contract and statute. This ranking is known at borrowing, generally corresponds to the order of repayment in bankruptcy liquidation, and helps define the creditors' relative bargaining power in reorganization. Without a bankruptcy backstop, most debts of national governments are legally equal. Yet in practice, sovereign immunity empowers a government to choose the order of repayment among its creditors based on political imperatives, financing needs, reputational concerns or any other considerations. A transparent, enforceable priority system for sovereign debt could reduce the risk of involuntary subordination, the attraction of lending to overindebted governments and the need for collateral. When all else fails, such a system could make restructuring less messy. But an effort to imagine sovereign priorities shows both the utility and the limits of domestic bankruptcy as a source for solutions to sovereign debt crises. This article suggests that while incremental improvement is possible and desirable, in the sovereign context, the most robust priority structures are doomed to fail.

The Victim-Informed Prosecution Project: A Quasi-Experimental Test of a Collaborative Model for Cases of Intimate Partner Violence:

Abstract: The Victim-Informed Prosecution Project (VIP) was designed to amplify the voice of the victim in the prosecution of a battering current or ex-partner through collaboration between the prosecution and victim-centered agencies. This article describes the rationale for and design and implementation of VIP and then explores whether it increased perceived voice. While some VIP services (advocacy and civil protection order representation) were associated with increased perceived voice, the program as a whole was associated with it only in the context of greater contact with prosecutors, when cases were more likely to be felonies. We make specific recommendations for applying this model.