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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.


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TL;DR: In this article, the authors discuss the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America, and argue that the proper response is not to withdraw from the social compact through the courts, but to engage the citizenry in rebuilding the state so that the state is capable of performing its essential functions.
Abstract: This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three--pronged rights critique--that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community - was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development. The rights critique continues to be relevant today, because Obama--era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of rights about which the rights critiques have complained. For one, Obama--era rights are more lethal than the original rights targeted by the rights critique. But most importantly, several Obama--era rights are best described as defensive rights, which allow the holder to withdraw from the social compact with a failed or failing state. Recent court decisions have recognized the right of citizens to withdraw from the bonds of citizenship, because the state has proven to be incapable of performing its most basic functions, such as providing for the poor, providing children with an adequate education, or preventing violence against its citizens. Finally, the article argues that the proper response is not to withdraw from the social compact through the courts, but to engage the citizenry in rebuilding the state so that the state is capable of performing its essential functions.

11 citations

Posted Content
TL;DR: In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States.
Abstract: In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act. The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work. If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down. The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program. Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies. The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society.

11 citations

Posted Content
TL;DR: In this article, Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity, and that the violent expropriation of sex should be punished as a major felony, as is violent rape.
Abstract: Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory. Furthermore, according to Dripps, the expropriation of sex through nonviolent means may also be wrong, and even criminally so, depending upon the means used. It is much more difficult, however, to distinguish those sexual transactions that result from impermissible, albeit nonviolent, pressures from those that result from pressures that, although perhaps not commendable, are not sufficiently egregious to be made the target of the criminal law. Eschewing reliance on the presence or absence of the woman's consent as a means of distinguishing between criminal expropriations and permissible bargains, Dripps suggests that we focus instead on the "means" used to procure sex, and develop some set of guidelines by which to distinguish those means that are "legitimate" from those that are "illegitimate." Through consideration of a series of hypothetical cases, Dripps reaches the conclusion that expropriation of sex accomplished in part by disregarding an expressed, verbal protestation should be the paradigm for this lesser offense of nonviolent expropriation; a refusal to heed an expressed desire not to have sex violates rights of autonomy and should be criminal, although not punished as harshly as those expropriations accomplished through violence or threats. Although this new offense - nonviolent expropriation of sexual services in disregard of a verbal "no" - would expand the criminalization of sex, it would leave untouched two important classes of sexual transactions, the first of which Dripps concedes may be problematic, but the second of which, Dripps argues, although viewed as problematic by a number of feminist writers, should not be so viewed. First, it leaves uncriminalized a wide range of sexual transactions that result from fraudulent misrepresentation. Surely these transactions are illegitimate, since they would be criminal if the commodity were anything but sex. However, primarily for pragmatic reasons (namely, that it would involve a "sweeping criminalization of sex," and particularly the recriminalization of adultery), Dripps argues that such sexual transactions should not be regarded as criminal. Second, it leaves untouched a range of sexual transactions that might concededly result in unwanted, undesired, and unpleasurable sex for the woman, but that are a part of what Dripps calls "complex relationships," in which sex is given in exchange not for pleasure, but rather for some bundle of goods presumed desirable by the woman - including, for example, fidelity, economic security, or friendship. Those relationships, Dripps argues, may well involve nonmutual and unpleasurable sex, but the "means" by which the sex is obtained are "legitimate." Since the woman has in some way acquiesced in the totality of the bargain, an exchange of goods for sex does not constitute an infringement of the woman's rights or a denial of her autonomy, even if the sex itself is far short of ideal.In these comments, I recapitulate my understanding of Dripps's argument, then suggest what seem to be some of the strengths and weaknesses of his suggested reform of rape law. I then comment in more detail on what I take to be the most serious danger of Dripps's proposal: the "commodity theory" of sex legitimates what should be regarded as morally problematic (whether or not criminally culpable) sexual transactions. I conclude by suggesting a way to retain some of the structure of Dripps's proposal without accepting its undesirable normative consequences.

11 citations

Posted Content
TL;DR: The case of Williams v. Walker-Thomas Furniture Co. as discussed by the authors led to a new consensus in favor of better disclosure of consumer contract terms ex ante, rather than ex post judicial review.
Abstract: What happened to unconscionability? Here’s one version of the story: The doctrine of unconscionability experienced a brief resurgence in the mid-1960s at the hands of naive, left-liberal, activist judges, who used it to rewrite private consumer contracts according to their own sense of justice. These folks meant well, no doubt, much like present-day consumer protection crusaders who seek to ensure the “fairness” of financial products and services. But courts’ refusal to enforce terms they deemed "unconscionable” served only to increase the cost of doing business with low-income households. Judges ended up hurting the very people they were trying to help. In the face of incisive criticism, judicial enthusiasm for the doctrine of unconscionability quickly faded. A new consensus emerged in favor of legislation requiring better disclosure of consumer contract terms ex ante, rather than ex post judicial review. This Article presents a different narrative, one that is informed by extensive research in previously untapped archival sources. In this story, the wise legislature does not overrule the misguided courts. On the contrary, it reveals that lawmakers laid the groundwork for the judicial revival of unconscionability, and then rewrote statutory rules to codify the ensuing court decisions. In the District of Columbia, home to the famous Williams v. Walker-Thomas Furniture Co. litigation, the legislature revived unconscionability through the enactment of the Uniform Commercial Code (U.C.C.), which reintroduced the once-archaic doctrine into the legal vernacular. Just as the U.C.C. drafters intended, unconscionability review allowed courts to do openly what they had been doing covertly for years — refuse to enforce harsh, one-sided bargains as written. In 1965, the D.C. Circuit seized the opportunity unconscionability offered to prevent the loss of a poor woman’s furniture. But the Williams litigation also did something more. It drew public attention to the controversy before the court and alerted D.C. lawmakers to a recurring problem in need of a legislative fix. In response, local leaders set to work drafting consumer credit reform legislation. Lawmakers eventually adopted a firm set of rules to govern “installment” sales contracts in the District of Columbia, including a ban on the objectionable contract term at issue in Williams. In this narrative, judges and legislators did not advance competing regulatory visions. They agreed on the need for substantive limits on installment sales to poor borrowers. Moreover, contrary to what some scholars might predict, litigation did not divert scarce resources down a dead-end path. Rather, it catalyzed the process of legislative change, raising public consciousness of problems in the low-income marketplace and fueling the drive for substantive reforms on the local level. Appendix A provides the full text of the Walker Thomas Furniture Company contract.

11 citations

Posted Content
TL;DR: Donors need greater clarity about what constitutes a strong public health system, and how to build them, and the paper discusses gaps in donors' approaches and first steps toward closing them.
Abstract: Aid to developing countries has largely neglected the population-wide health services that are core to communicable disease control in the developed world. These mostly non-clinical services generate "pure public goods" by reducing everyone's exposure to disease through measures such as implementing health and sanitary regulations. They complement the clinical preventive and treatment services which are the donors' main focus. Their neglect is manifested, for example, in a lack of coherent public health regulations in countries where donors have long been active, facilitating the spread of diseases such as avian flu. These services can be inexpensive, and dramatically reduce health inequalities. Sri Lanka spends less than 0.2% of GDP on its well-designed population-wide services, which contribute to the country's high levels of health equity and life expectancy despite low GDP per head and civil war. Evidence abounds on the negative externalities of weak population-wide health services. Global public health security cannot be assured without building strong national population-wide health systems to reduce the potential for communicable diseases to spread within and beyond their borders. Donors need greater clarity about what constitutes a strong public health system, and how to build them. The paper discusses gaps in donors' approaches and first steps toward closing them.

11 citations


Authors

Showing all 585 results

NameH-indexPapersCitations
Lawrence O. Gostin7587923066
Michael J. Saks381555398
Chirag Shah343415056
Sara J. Rosenbaum344256907
Mark Dybul33614171
Steven C. Salop3312011330
Joost Pauwelyn321543429
Mark Tushnet312674754
Gorik Ooms291243013
Alicia Ely Yamin291222703
Julie E. Cohen28632666
James G. Hodge272252874
John H. Jackson271022919
Margaret M. Blair26754711
William W. Bratton251122037
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Performance
Metrics
No. of papers from the Institution in previous years
YearPapers
202174
2020146
2019115
2018113
2017109
2016118