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.

A Plea to Apply Principles of Quarantine Ethics to Prisoners and Immigration Detainees During the COVID-19 Crisis

Abstract: An important topic has been neglected in the discussion of ethical issues related to the current Pandemic: unsafe conditions experienced by those who are incarcerated in state or federal prisons or confined in immigration facilities I argue that principles of Quarantine Ethics addressing the health and safety of those subject to involuntary quarantine should be applied to mitigate the risk that COVID-19 poses to inmates and detainees These individuals are presumed to have been lawfully detained, thereby excluding the question of the necessity and validity of an order requiring the compulsory quarantine as would apply to an ordinary citizen However, human rights law remains applicable notwithstanding their status as inmates or undocumented immigrants Accordingly, these individuals are entitled to safe conditions of confinement to reduce the high risk of their exposure to infectious disease Judicial caselaw addressing these facilities’ obligations to provide medical care is insufficient I offer recommendations for improving conditions of confinement based on recognition that neither penal nor immigration policies are furthered by unreasonable risk of exposure to the virus The disproportionate incarceration of people of color makes the topic yet more urgent

Legislating and litigating health care rights around the world.

Abstract: his special edition of the Journal explores the establishment of health care rights through T legislation and litigation in a range of jurisdictions across the globe. The emphasis in this edition is on rights to publiclyfunded health care and the struggle to determine a just allocation of public resources in countries as diverse as New Zealand, Israel, Canada, South Africa, Norway, the United Kingdom, and the United States. Much of the emphasis in this collection is on rationing health care in publicly-funded systems. There are also insights for health care systems with more private funding, such as the United States system, where both private and public payers are increasingly looking to ways to legitimately ration or prioritize access to health care even if it is only for the purpose of expanding profit margins. The contributors to this volume repeatedly address the difficulty of determining how much money the public sector receives. Carmel Shalev and David Chinitz elegantly reference this point, quoting Paul Simon: “one man’s ceiling is another man’s floor.” A basic problem is that those whose needs are met in the private sector may be less willing through tax dollars or service fees to help fund treatment for those in the public sector who are most in need. On the upside, limited availability of public dollars may lead to more efficient use and rigorous oversight of public dollars. Studies consistently show, for example, that the only real difference in terms between Canada and the United States is the amount of money spent, and that there is little or no overall difference in health care outcomes. More money, particularly more private dollars, doesn’t inevitably lead to overall better health outcomes or even necessarily more consumption of health services. The downside is that at times the public system can be cut too close to the bone, resulting in concerns about waiting for access to treatment and leading to dissatisfaction with the public system and calls for increased privatization. Concerns about publicly-funded health care have resulted in multiple efforts to establish rights to health care. In some jurisdictions including Norway, Israel, and the Netherlands such substantive rights have been established through legislation and, in the case of South Africa, enshrined in the constitution. Other countries, such as New Zealand, have not recognized substantive rights but rather procedural rights: the rights to informed consent, confidentiality, to be treated with dignity, and the like. In the United States, concerns about rationing on the part of private managed care insurers have lead states to implement legislation designed to protect rights of those with private insurance and limit rationing measures on the part of managed care insurers. Concerns about the limits and deficiencies of publicly-funded health care have also resulted in increased litigation, as we see in almost all of the jurisdictions discussed by the various contributors to this journal. For example, in the recent case of Chaoulli v. Quebec (Attorney General)’ the Canadian Supreme Court ruled that there is a constitutional right to purchase private health insurance

Property and the Construction of the Information Economy: A Neo-Polanyian Ontology

Abstract: This chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons.

Murdering the Spirit: Racism, Rights, and Commerce

Abstract: Patricia Williams' The Alchemy of Race and Rights: The Diary of a Law Professor, is an eloquent, profoundly original, and often brilliant collection of interdisciplinary essays and stories concerning the impact of racism and poverty on the human spirit; the historic and continuing role of law and legal institutions in defining, facilitating, and perpetuating those harms; and the possibilities and dangers imminent in the attempt to use law to effect a remedy for them. This is a book that we should celebrate: it reminds us that books are occasionally very, very important, that reading can be transformative, and that writing sometimes can be and should always strive to be a moral act of the highest order. In the first Part of this review, I will briefly discuss just three of the substantive and disciplinary accomplishments of this book, and then I will present two possible objections (and possible responses) to some of the implicit and explicit theses the book defends. It is my view, however, that the greatness of this book lies neither in its disciplinary breakthroughs nor in its explicit analysis of race and law. The book's importance and uniqueness is in what it shows about the nature of private racism, which Williams provocatively calls a form of "spirit-murder" – the generic "disregard for others whose lives qualitatively depend on our regard." Much of Williams' book is given over to rich personal depictions of both the nature of the act of spirit murder thus defined and, more importantly, perhaps, the nature of the injury its victims experience. Thus, in the second and major Part of this review, I will try to describe "spirit-murder," the depiction of which I take to be the heart of Williams' contribution to our modem understanding of race relations in this country. In the concluding Part, I will review the two possible legal paths toward compensating or correcting the multiple injuries of spirit-murder that Williams describes. The first, toward which Williams is deeply ambivalent, consists in the related worlds of commerce and contract. If spirit-murder is, in its legal sense, that injury that results from being the "object" rather than the subject of property, contract, and commerce – a legal "disregard" felt most dramatically by the slave – then inclusion as subjects rather than objects in the world of commerce might be thought an adequate remedy. The promise, however, that the injuries sustained from the legacy of slavery would be eradicated simply through the legally mandated inclusion of African Americans in this country's commerce has turned out to be at least somewhat illusory. Consequently, both commerce and the law of commercial relations play a pivotal but deeply ambiguous role in Williams' book. The second route of recovery, about which Williams is less equivocal and far more hopeful, is through an expansive and avowedly utopian conception of rights.

Boilerplate and Party Intent

Abstract: It is commonly recognized that parties often do not read or understand contract boilerplate they agree to, and that such parties might not intend all the terms in it. Less often noticed are decisions that favor boilerplate over evidence of the parties’ contrary intent for the very reason that it is boilerplate. This article discusses that phenomenon. It identifies decisions in which courts favor boilerplate terms over other evidence the parties’ intent because it is boilerplate, discusses the rules that explain those outcomes, and examines the reasons behind the rules. A contractual writing, whether individually negotiated and drafted or boilerplate, often displaces other evidence of the parties’ agreement. Plain meaning rules, the parol evidence rule, and the use of formalities can all operate to limit extrinsic evidence of the parties’ intent. But each rule also has special application to boilerplate. Plain meaning rules can serve to generate uniform construction of standard terms or adhesive contracts across multiple transactions. Some authorities suggest that standard terms and adhesive contracts are presumptively integrated, avoiding the standard inquiry into the parties intent to integrate under the parol evidence rule. And the judicial construction of boilerplate language sometimes transforms it into something like a legal formality—words whose legal effect depends on their form rather than their meaning. In addition to these special applications of general rules to boilerplate writings, boilerplate is sometimes subject to more specific rules that limit evidence of the parties’ contrary intent. When the law mandates that boilerplate language be included in a contractual writing, the government’s understanding of that language should, ceteris paribus, control, even if the parties understood it differently. In markets that benefit from uniform contract terms and where a large portion of market participants employ a standard form to achieve those benefits, courts should seek to construe forms uniformly, with limited regard for individual parties’ understandings of them. Courts have at their disposal a number of tools to achieve such uniform construction. Courts sometimes defer to the non-binding construction other courts have put on the same language. Depending on the circumstances, they might also restrict their interpretation to the standard form’s plain meaning, defer to the form author’s interpretation of it, defer to regulators’ interpretation of it, or deploy a stringent contra proferentem rule. Finally, section 211(2) of the Restatement (Second) of Contracts suggests that it is sometimes reasonable to construe adhesive contracts at the expense of non-drafting parties’ understandings of them, although the Restatement leaves it unclear just when that is. Although there is not much judicial support for section 211(2), courts certifying consumer class actions have recently begun citing the provision for the proposition that boilerplate terms in consumer contracts should be construed without considering evidence of individual consumers’ understandings of them.