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.

The national individual health insurance mandate.

Abstract: On March 23, 2010, President Obama signed into law the nation's first comprehensive health care reform bill, the Patient Protection and Affordable Care Act. Within weeks, twenty states filed lawsuits challenging the constitutionality of its most politically charged feature--an individual purchase mandate. By 2014, the bill requires most individuals to have health insurance. With certain exceptions (pertaining to income level and religious objections), individuals without qualifying coverage will pay an annual tax penalty reaching the greater of $695 ($2,085 per family maximum) or 2.5 percent of household income. (1) If anything, the tax penalty is too low compared with the cost of insurance, so it may not provide sufficient incentive for healthy individuals to purchase insurance. But it remains controversial because it compels people to purchase coverage they choose not to have, raising the question whether Congress can lawfully and ethically require individuals to contract with, and transfer money to, a private party. (2) To be sure, the individual mandate lacks a clear American precedent. (It has worked successfully in other countries, such as Australia.) Compulsory automobile insurance, for example, is a state requirement, operates as a condition of exercising the privilege of driving, and requires coverage for injuries to others (not the insured). Personal Freedom and Collective Goods in Conflict Opposing a mandate is understandable when viewed from an individual perspective: it interferes with economic freedom and constrains personal choice. In economic terms, it represents a compelled cross-subsidy. However, when viewed from a collective perspective, the mandate offers valuable social benefits. The absence of health insurance creates harmful consequences, including lower quality of life, increased morbidity and mortality, and higher financial burdens.(3) Since these adverse consequences fall mostly on those who lack insurance, the decision to seek insurance arguably should be left to them. However, government is responsible for the wellbeing of the community, not particular individuals. Even if the decision were primarily self-regarding, its effects--illness and death--can be felt by all. Many individuals cannot afford insurance, but others choose not to insure; over nine million people with annual incomes over seventy-five thousand dollars had no coverage in 2007. (4) Yet many previously healthy people suffer illness or injury and end up requiring treatment in emergency departments, most of which is uncompensated. "Free riders" rely on society to pick up the costs (forty-three billion dollars in 2008) through higher insurance premiums (above one thousand dollars annually) and higher taxes (such as hospital subsidies, Medicaid, and Medicare). Individuals often delay purchasing insurance until they become ill, creating an "adverse selection" problem for insurers. At its worst, free-riding and adverse selection create a downward spiral of higher premiums and a shrinking insurance pool, making everyone's health care less affordable. (5) The Mandate's Constitutionality The pivotal constitutional concern is that government will penalize individuals for failing to buy health insurance--for "doing nothing"--simply because they are legal residents of the United States. The states could undoubtedly mandate health coverage, as with the Massachusetts Health Care Reform Plan of 2006. But the federal government has limited power; its principal enumerated powers are to regulate interstate commerce and to tax for the general welfare. The Supreme Court, however, has broadly construed federal powers--known as the "implied powers" doctrine--to uphold laws that are "necessary and proper." By this reasoning, the Court ought to uphold the constitutionality of the health insurance mandate. The power to regulate interstate commerce. The Supreme Court has interpreted the commerce power broadly, applying it to virtually every aspect of economic and social life. …

Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation

Abstract: In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference. An earlier draft of this paper won the AALS Scholarly Paper Competition.

Quality Control: A Reply to Professor Sunstein

Abstract: Unless cost-benefit analysis finds room for the nonquantifiable and nonmonetizable benefits of regulation, it will skew systematically against government action to address social problems that have significant nonquantifiable and nonmonetizable dimensions. In "Nonquantifiable" – presented as the 2013 Jorde Lecture at Berkeley Law School – Professor Cass Sunstein looks for a way out of this quandary. But the solutions he embraces – breakeven analysis, a meaningful recognition of qualitative consequences like human dignity, and a redoubled effort to quantify and monetize regulatory benefits – fall short. Breakeven analysis is too selectively deployed to be the neutral tool Sunstein seeks. Fitting qualitative values, like dignity, into the cost-benefit mold can be both legally gratuitous and conceptually confused. Monetizing heretofore nonmonetized regulatory benefits – like preventing prison rape – entails a complete redefinition of the problem at hand. We do not solve the problem of nonquantifiability by, essentially, changing the subject.

The Ninth Amendment: It Means What it Says

Abstract: Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.

Developing Attorneys for the Future: What Can We Learn from the Fast Trackers?

Abstract: Leaders in law firms tend to be those attorneys who thrive in a law firm environment from the beginning - successful associates who become successful partners. Later, they are asked to be the leaders of practice areas, committees and, ultimately, part of senior management. While high-performing associates may not be formally promoted to leadership positions for some time, it is important to understand what makes them - as young associates - stand out from their peers. Who are these future leaders, and what qualities predict their advancement in a law firm environment? These are the questions we set out to explore. To date, little empirical work exists on the characteristics and behaviors of high-potential associates - how to recognize them from the beginning and how to develop them. Instead, law students continue to be hired most commonly based on the law school they attended and their GPA, under the assumption that law school and GPA are related to future performance as an attorney. Transcript and resume review are typically accompanied by a series of 30-minute interviews consisting of questions that vary from candidate to candidate. Consequently, hiring decisions result from a combination of the reputation of the law school attended, GPA, and the interviewing partners’ gut feeling.