The Georgetown Law Journal

Latest print issue: Vol. 105 Issue 4

Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have negligible fiduciary obligations. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Though current law does not hold employers to be fiduciaries of their employees, employers have long had significant statutory and common law responsibilities toward their employees that reflect a fiduciary character. Looking to these commitments as well as to research on the theory of the firm, this Article argues that employers are fiduciaries and must refrain from opportunism, especially when employees have no voice in governance. However, in an organizational setting where employees genuinely participate in governing the firm, the parties’ reciprocal fiduciary duties should be recalibrated to require a balanced set of obligations.

Seminole Rock deference—which requires courts to defer to an agency’s interpretation of its own ambiguous regulations—may be living on borrowed time. Although it might seem harmless, many worry that Seminole Rock violates the maxim that the same hands should not both make and interpret the law. Indeed, the fear is that this combination of powers may create incentives for agencies that value flexibility to promulgate ambiguous rules that they can later clarify retroactively to the detriment of regulated parties who lack notice regarding their legal obligations. The upshot is that several Justices of the Supreme Court have called for Seminole Rock to be revisited.

On November 21, 2014, the U.S. House of Representatives did something it had never done before—it filed, as plaintiff, a lawsuit against a coordinate branch of the federal government. In doing so, the House chose to stage its separation of powers battle in the courthouse rather than the public square. In its simplest form, the House’s suit charged the Obama Administration with spending money that Congress had not yet appropriated, which, if true, is almost surely a violation of the Constitution’s Appropriations Clause.The stakes of the suit, captioned House v. Burwell, are as high as the suit is novel

In 1972 Congress enacted Title IX of the Education Amendments. Title IX prohibits discrimination based on sex in federally-funded educational institutions. Although the law is silent on the subject of athletics, over the years it has gained popular status as the law that made college sports accessible to women. Today, to achieve gender equity in the realm of college sports, schools that receive federal funding must show athletic participation that proportionally reflects their gender demographics.

Developments in the law are making the corporate form more opaque and allowing the agents who animate it to escape individual accountability for their actions. The law now provides protection for agents to engage in widespread frauds that inflict massive harm on the public. This Article challenges the academic orthodoxy that shareholder and director liability are enough to control agent behavior by developing a paper dragon analogy to focus on the importance of agents in corporate animation. Instead of hollow procedural shells, modern corporations should be understood as paper dragons in a parade—costumes animated by agents who are the dancers under the fabric that make it move. We focus on the dragon costume itself to the exclusion of recognizing the presence and responsibility of those agents.

Constitutional theory commonly casts individual-rights provisions and structural provisions as conceptual opposites. Conventional wisdom suggests that structural provisions establish and empower government institutions, and rights provisions protect individual freedoms. Although scholars have long explored how government structure can affect individual liberty, its mirror image has been neglected. Scholars have largely assumed that individual rights have little resemblance to constitutional structure. The result is an imbalanced discourse that misses the structural implications of individual-rights provisions and their consequences for constitutional theory.

Health care fraud convictions are on the rise, but little is known about how health fraud offenders are sentenced. This Note offers the first comprehensive empirical account of sentencing decisions in health fraud cases based on a new dataset constructed from United States Sentencing Commission data. This analysis shows that there is a large disparity in how health fraud offenders are sentenced compared to other white collar offenders and general crimes offenders.

Web-exclusive content: GLJ Online Vol. 105

Judge James L. Robart, a 1973 alum of Georgetown University Law Center and a former Administrative Editor of The Georgetown Law Journal, issued a temporary restraining order (TRO) enjoining the enforcement of President Trump’s Executive Order of January 27, 2017. The controversial Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” dramatically alters the United States admission process for non-citizens. Most notably, it temporarily bars refugees and nationals from seven majority-Muslim countries from entering the United States.

Historical practices can help define the separation of powers. One branch’s claim of authority and another branch’s acquiescence can put a “gloss” on the sparse text of Articles I–III, especially when repeated over time. . . . [W]e try to explain why courts were on the sidelines of these gloss games and why other disputes over Article III are likely to reflect a similar structure. The key, we think, lies in a distinctive feature of judicial decision making: the doctrine of stare decisis.