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.

Justice Blackmun, Abortion, and the Myth of Medical Independence

Abstract: This article uses Justice Blackmun's personal papers and other primary sources to argue for a re-interpretation of how the relationship between law and medicine affected the Supreme Court's treatment of abortion. The conventional wisdom has been that Blackmun framed the abortion right in Roe v Wade as belonging as much to the physician as to the pregnant woman largely because of his close personal identification with doctors, growing out of his experiences as resident counsel at the Mayo Clinic. I argue that this widely-held belief has hidden a richer and more complex relationship between legal and medical discourse. Both in Roe and in the earlier case of United States v. Vuitch, the Court constructed medicine as a mythically independent, parallel realm to the state. In the early abortion cases, the Court was engaged in a delegation of power, a move designed not so much to shield physicians from prosecution as to enlist them in regulation. Privileging Blackmun's authorship and thus tying Roe so closely to Blackmun overestimates his role in crafting the contours of the privacy right. In Roe, Justice Blackmun functioned in large part as a broker between Justice Douglas, who was as attracted as Blackmun to physician control, and Justice Brennan, who pressed for an autonomy framework that vested the right to decide solely in the woman. Blackmun's recently opened papers demonstrate that he was a moderating force among the Justices, seeking at every turn to narrow the decision while still commanding a court, an instinct that he also displayed in Vuitch. The conventional approach also underestimates Justice Blackmun, by reading Roe as fueled by a parochial allegiance to medical institutions. Blackmun did admire the professionalism that he had witnessed at Mayo, but he was pragmatic in his approach to adjudicating cases related to medical practice. He was also well aware that medicine was a business: the bulk of his time at Mayo was spent on tax, corporate, real estate, and licensing issues. After Roe, physicians providing abortions proved to be unreliable partners in the regulation of sexual and procreative norms because they eschewed the paternalistic role carved out for them. An increasingly conservative Court used cutbacks in deference to medical authority as a rhetorical mechanism for weakening the abortion right. This back and forth renegotiation of juridical and medical authority had a far more powerful impact than the influence of Justice Blackmun's years at Mayo.

Rate-Jacking: Risk-Based and Opportunistic Pricing in Credit Cards

Abstract: This Article, part of a theme-volume on the Credit C.A.R.D. Act, explores the phenomenon of credit card “rate-jacking” — the practice of card issuers suddenly raising the interest rate on an account, often applying the new rate retroactively to existing balances. This Article examines the degree to which rate-jacking — now largely prohibited by the Credit C.A.R.D. Act — and credit card pricing generally reflects risk-based or opportunistic pricing.

The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side

Abstract: Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author of this essay makes the case that the policy was in fact illegal, and that the nation must hold the architects of the plan accountable. He also offers brief thoughts on the legal and policy issues surrounding detention and targeted killing in the ongoing conflict with Al Qaeda, stressing that while neither is flatly impermissible in an armed conflict, accountability and democracy concerns demand greater transparency.

How Constitutional Norms Break Down

Abstract: From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials. This Article calls attention to that latent instability and, in so doing, begins to taxonomize and theorize the structure of constitutional norm change. We explore some of the different modes in which unwritten norms break down in our constitutional system and the different dangers and opportunities associated with each. Moreover, we argue that under certain plausible conditions, it will be more worrisome when norms are subtly revised than when they are openly flouted. This somewhat paradoxical argument suggests that many commentators have been misjudging our current moment: President Trump's flagrant defiance of norms may not be as big a threat to our constitutional democracy as the more complex deterioration of norms underway in other institutions.

How Much Do Patent Applicants Care About Patent Term? Cross-Industry Differences in Term Sensitivity

Abstract: Patents are monopolies granted to inventors in order to promote innovation, but they have a limited term because they also impose social costs. There is little empirical research on what constitutes an optimal patent term, or whether patent term should vary across industry categories.We take a first step in studying these issues by examining cross-industry differences in patent term sensitivity. We take advantage of a change in law --- the passage of the TRIPS agreement in 1994 --- that caused patent term to be measured from the date a patent application was filed rather than the date the patent was granted, thereby reducing patent term by the amount of time an application was pending before the U.S. Patent and Trademark Office. Using a new dataset, we determine what portion of this delay is attributable to applicants for 331,113 issued patents filed in 1994-1996. This shows, for the first time, how patent applicants in different industries sped up their prosecution behavior in response to the change in law, which gives us a measure of industry sensitivity to patent term change.We predict, via a formal model, that patent applicants in industries with higher profits toward the end of patent term are the applicants most likely to speed up patent prosecution after TRIPS. Our results show that pharmaceutical patentees sped up patent prosecution significantly, which accords with prior theory on the primacy of patents in this industry. We find, however, that software patentees also significantly sped up prosecution, which is unexpected given prior theory suggesting patents are less important in spurring software development. Our patent delay measure is highly correlated with patent renewal rates across industries, suggesting our measure assesses the value of patents to applicants in different industries.Additionally, our paper exploits another, separate aspect of the legal change that gave some firms longer patent term extensions vis a vis others. We perform an event study and find that firms receiving longer extensions tended to have higher market returns. We obtain similar results using a new empirical technique known as regression kink design, which addresses potential selection issues.Our results provide support for our formal model, suggesting that patentees in industries most likely to receive higher profits near the end of patent term were the ones most sensitive to the change in patent term rules. More generally, our results suggest we have credibly estimated the value of patents across industries, which can guide further research on optimal patent term and the effect of patents on innovation.