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.

The President's Budget as a Source of Agency Policy Control

Abstract: A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely overlooked in this literature is how the President’s budget acts as a source of agency policy control — in particular, how the White House exercises control through OMB’s authority to prepare the budget, oversee agencies’ execution of the budget, and create and implement management initiatives through the budget process. This Article identifies seven levers associated with OMB’s work on budget preparation, budget execution, and management and shows how these levers can control agency policymaking. These levers have some salutary aspects, especially in their valuable coordination work throughout the administrative state, but they also raise a series of accountability concerns related to opacity, the extensive discretion afforded to civil servants and lower-level political appointees, and the potential for substantive policy (and political) choices to be obscured by technocratic-sounding work. The Article concludes with a reform agenda, mapping out ways that the President, OMB, Congress, and civil society should respond to these accountability problems. Future analyses of OIRA’s authority should incorporate discussion of the complementary power of OMB to use the budget as a source of agency policy control.

Shareholder Voting in an Age of Intermediary Capitalism

Abstract: Shareholder voting is a key part of contemporary American corporate governance. As numerous contemporary battles between corporate management and shareholders illustrate, voting has never been more important. Yet, traditional theory about shareholder voting, rooted in concepts of residual ownership and a principal/agent relationship, does not reflect recent fundamental changes as to who shareholders are and their incentives to vote (or not vote). In the first section of the article, we address this deficiency directly by developing a new theory of corporate voting that offers three strong and complementary reasons for shareholder voting. In the middle section, we apply our theory to a world where most shares are held by institutional investment intermediaries (and mostly within retirement plans). We show that intermediaries’ business plans give them little reason to vote those shares and even create conflicts of interest that may distort their votes. Yet several key developments have countered that reality and opened the way for voting’s new prominence. First, government regulations now require many institutions to vote their stock in the best interests of their beneficiaries. Second, subsequent market innovations led to the birth of third party voting advisors, including Institutional Shareholder Services (ISS), which help address the costs of voting and the collective action problems inherent in coordinated institutional shareholder action. Third, building on these developments, hedge funds have aggressively intervened in corporate governance at firms seen as undervalued, regularly using the ballot box to pressure targeted firms to create shareholder value, thereby giving institutional shareholders a good reason to care about voting. But there is more to the corporate franchise than hedge fund inspired voting. Say on Pay proposals, Rule 14a-8 corporate governance proposals, and majority vote requirements for the election of directors, are all important, recurrent topics involving shareholder votes. We must also explain why these lower value votes should be held. In our concluding section, we apply our theory to examine when shareholder voting is justified. We examine hedge fund activism as an example of high value voting situation and Say on Pay votes as an illustration of lower value cases where there are still good reasons to have shareholder votes.

COVID-19 Reveals Urgent Need to Strengthen the World Health Organization.

Abstract: From the time China reported a novel coronavirus to the World Health Organization (WHO) on December 31, 2019, it took barely 4 months to become a pandemic, killing hundreds of thousands, and growing daily. It is now clear that the novel severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) had been circulating in Wuhan, China, for weeks before China reported it to the WHO, and that authorities hid information. China maintained SARS-CoV-2 was not readily transmissible between humans. The WHO published China’s data, but without independently verifying their accuracy. President Trump subsequently blamed the WHO for its slow and “China-centric” response. On April 14, 2020, he announced a suspension of US voluntary contributions to the agency. Although the WHO was unable to verify the Chinese data, it was proactive, including widely sharing the genomic sequencing of the virus with international scientists. On January 30, 2020, the WHO declared coronavirus disease 2019 (COVID-19) a global health emergency, urging rigorous containment including testing, contract tracing, and quarantine. Broad criticism of the organization is unfounded, and is particularly damaging because the pandemic is poised to deeply affect sub-Saharan Africa. That said, legitimate concerns about the WHO include its reluctance to insist China allow a robust WHO team on the ground and its praising of China’s transparency. The crisis now unfolding could also become a historic opportunity to strengthen the WHO. Reforms must start with recognizing the global public good achieved by the WHO.

Anglo-American Privacy and Surveillance

Abstract: The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears to be losing privacy in its battle against terrorism. Part I of this article looks at the American institution of legal controls on the executive branch and their subsequent erosion post-9/11. It explores three changes incorporated in the USA PATRIOT Act: alterations to the Foreign Intelligence Surveillance Act; the introduction of Delayed Notice Search Warrants; and the expansion of National Security Letters. Outside of this legislation, the weakening of the Attorney General guidelines increased the FBI's ability to collect information. The article highlights the Department of Defense's ("DOD") movement into the domestic surveillance realm. It discusses a number of operations both inside and outside the DOD, such as TALON, Echelon, Carnivore, Magic Lantern, TIPS, and the use of watch lists. Part I concludes with a discussion of the data mining efforts underway. The article argues that Total Information Awareness, ADVISE, and other projects catapult surveillance into another realm. Moreover, while any one program, such as the NSA initiative, may be considered on narrow grounds, the sheer breadth of current powers raises important concerns. Part II notes that, until recently, no laws governed police and intelligence service information-gathering authorities in the UK. Extraordinary stop and search powers for terrorist-related offences, and warrants for police interference with property provided exceptions. But physical searches of property conducted by the intelligence services, the interception of communications by law enforcement and intelligence agencies, the use of covert surveillance or "electronic bugs," and the running of covert human intelligence sources operated under the legislative and judicial radars. Beginning in the mid-1980s, the European Court began to raise objections to the lack of safeguards and statutory framework. But each time the Court handed down a significant finding against the United Kingdom, the state responded not just by, at least on the surface, meeting the demands of the European Convention of Human Rights, but, it appears, by expanding executive surveillance authorities. Moreover, the warrant system introduced retained control within the executive branch. Not subject to judicial review, the standard applied is reasonable suspicion — considerably less robust than probable cause. Like the United States, Britain draws on new technologies; the country leads the world in its use of public surveillance systems. Having laid out legal developments on both sides of the Atlantic, Part III moves to policy concerns: it begins by briefly exploring the substantive, political, legal, social, and economic risks posed by such measures. It then considers six approaches that would help to mitigate the risks. First is the possibility of creating a property right in personal information. The second centers on the regulation of access, transfer, use, and retention of data. Such efforts would satisfy demands for accountability and transparency in both the public and private sector. A third possibility centers on scaling back the existing powers of the state. Fourth, both countries may contemplate placing limits on what constitutes national security. Fifth, alternative safeguards and oversight structures deserve attention — such as reporting requirements, random audits, the creation of ombudspersons, the insertion of the judiciary, and (in the UK) allowing intercepted communications to be used as evidence. Sixth, preventing countries from introducing ever greater powers of surveillance under the claim that they are only temporary in nature would force legislatures to consider the long-term impact of provisions beyond the immediate terrorist threat.

Independent Directors as Securities Monitors

Abstract: This paper considers the role of independent directors as securities monitors. Rather than engaging in the debate about whether independent directors are good or bad, important or unimportant, the paper takes their existence and basic governance role as a given, focusing on their role as detailed in the federal securities laws, regulations, and releases. To the extent that directors are supposed to play a monitoring role in the corporation, exercising both guidance and a check and balance, the securities laws are part of the mechanism to ensure that they fulfill that role. From the SEC's perspective, independent directors are on the board for a reason. Their role is to act as securities law monitors. Although this role is particularly serious when it involves statements the directors draft or sign, it also includes an ongoing responsibility to be informed of developments within the company, to ensure good processes for accurate disclosures, and to determine if disclosures are adequate. Independent directors with expertise should be involved in reviewing and, sometimes, drafting statements. All directors, however, should be fully aware of company statements and sufficiently engaged and active to question and correct inadequate disclosures. This role of securities monitor is yet another way of implementing the information-forcing-substance disclosure model that the SEC has always utilized to achieve corporate governance. In addition to defining and animating the role of independent directors as securities monitors, I review the ways in which private causes of action and the SEC's enforcement powers are available to ensure that directors have the proper incentives to fulfill their securities monitoring role and provide some scenarios for the SEC to use to fulfill its enforcement role.