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.

Revisiting Beccaria’s Vision: The Enlightenment, America’s Death Penalty, and the Abolition Movement

Abstract: In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses the current state of the death penalty in light of the U.S. Supreme Court's recent decision in Baze v. Rees and concludes that there is every reason to believe that America's death penalty may finally be in its death throes.

War as Punishment

Abstract: For more than a thousand years, just war theorists accepted that wars could be launched to punish or avenge wrongdoing, the war itself being an instrument of retribution. Today, this punishment theory of just cause has completely disappeared from international law, which recognizes only individual and collective self-defense as legitimate cause for war. But retributive emotions are as strong today as ever, and the punishment theory is still alive and well in the moral imaginations of modern societies, even if the diplomats and lawyers scrub it from their official pronouncements about the wars their nations fight. Furthermore, intuitions about enemy collective guilt underlie current debates over who counts as a direct participant in hostilities, how voluntary human shields should be treated, and how much risk soldiers must take to minimize casualties among enemy civilians. This paper addresses two principal questions: how we got from there to here - that is, from just war theories that embraced the punishment theory to its current erasure - and whether the punishment theory may nevertheless be right. In answer to the first question, the paper traces the punishment theory from its initial formulation in writings of St. Augustine (whose views it examines in detail) through its medieval and early modern defenses, to its rejection by Kant and Vattel. Defenders of the theory, notably Cajetan, viewed punitive war through the lens of criminal justice by which states punish miscreants; they argued that natural reason cannot accept notorious unpunished wrongdoing. Those who rejected the theory did so because it requires one state to judge the conduct of another. This objection raises two distinct issues: violation of sovereign equality, and biased judgment. The paper rejects the sovereignty objection, but elaborates the biased judgment objection by examining the distinction between retribution and revenge. These arguments lead to five objections to the punishment theory: (1) It places punishment in the hands of a biased judge, namely the aggrieved party, which (2) makes it more likely to be vengeance than retributive justice. (3) Vengeance does not follow the fundamental condition of just retribution, namely proportionality between punishment and offense. (4) Furthermore, punishment through warmaking is collective punishment that punishes the wrong people, and (5) it employs the wrong methods. Ultimately, Cajetan's concerns about unpunished wrongdoing argue for international criminal law, not punitive warfare.

Discounting the Clean Development Mechanism

Abstract: This Note proposes discounting the value of emission credits generated from the Kyoto Protocol's flexibility mechanisms - the Clean Development Mechanism (CDM) and Joint Implementation (JI) - to promote more efficient, equitable, sustainable, and carbon-negative projects abroad. The paper begins by exploring the economics, flaws, and inefficiencies of these two mechanisms, finding them to be an inadequate solution to global climate change as they lead to insufficient and inefficient greenhouse gas reductions. The CDM and JI promote insufficient emissions reductions by allowing industrialized nations to swap domestic emissions for corresponding reductions in the developing world without any net global greenhouse gas reductions. Secondly, the two mechanisms award emissions reduction credits based off the global warming potential of the greenhouse gases reduced, rather than the costs of abatement, which can lead to gross market distortions. More critically, it allows industrialized nations to satisfy a large share of their Kyoto obligations by investing in a few isolated super-pollutant projects, thereby depriving the developing world of the necessary low-carbon technology transfer and improvements in sustainable development promised under the Kyoto Protocol. In response to these flaws, the author proposes "discounting" or reducing the number of emissions credits issued for a project, while maintaining the same level of actual emission reductions, thereby promoting net greenhouse gas reductions. Specifically he proposes discounting the value of credits generated by CDM and JI projects to more closely reflect the project's marginal cost of abatement and transactional costs. The Note proposes creating an expert panel to the CDM and JI, tasked with the duty of discounting the value of emissions credits to more closely reflect the marginal costs of abatement for various pollutants, projects, and host countries. The author concludes that so long as an international discounting scheme provides sufficient certainty, flexibility, and profits for foreign investment, dramatic emissions reductions will likely result.

Count the Limbs: Designing Robust Aggregation Clauses in Sovereign Bonds

Abstract: On August 29, 2014, the International Capital Market Association (ICMA) published new recommended terms for sovereign bond contracts governed by English law. One of the new terms would allow a super majority of creditors to approve a debtor’s restructuring proposal in one vote across multiple bond series. The vote could bind all bond holders, even if a series voted unanimously against restructuring, so long as enough holders in the other series voted for it. An apparently technical change, awkwardly named “single-limb aggregated collective action clauses (CACs)” promised to eliminate free-riders for the first time in the history of sovereign bond restructuring. It could also open up new possibilities for abuse. The markets might have rebelled. Instead, they yawned … and proceeded to adopt the new terms. We consider why such consequential contract change met with less resistance than its relatively modest predecessors, series-by-series and two-limb aggregated CACs. We focus on contract design, and the process by which it came about. Most of the essay is devoted to analyzing the key features of single-limb aggregated CACs and the considerations that shaped decisions about these features. We conclude with observations on contract reform in sovereign debt restructuring and the challenges ahead.

Laboratories of Destitution: Democractic Experimentalism and the Failure of Antipoverty Law

Abstract: Democratic experimentalism, the procedural component of the "new governance" movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems. Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law - decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights - all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. Those same features prevented the country from acting on the widely shared concern about poverty in Katrina's wake. Indeed, almost all progress in antipoverty law has come from centralized, nonparticipatory, and non-experimentalist policymaking. Democratic experimentalism assumes consensus on the nature of problems and the propriety of government action, reliable metrics for measuring success, the luxury of time, the lack of situations requiring centralized policymaking, and deliberation that is costless in most respects. It also requires that one side risk political capital to establish an experimentalist system. These assumptions have not been fulfilled in antipoverty law. Little suggests that they will be met in other fields either. Further progress in antipoverty law must come from centralized policymaking based on substantive consensus, among many, though not all, liberals and conservatives. This consensus will follow many substantive components of the new governance, including reliance on market incentives. Democratic experimentalism should learn from debates about deliberative democratic theory that has wrestled with its key weaknesses.