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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: The notion of a "legislated" Constitution as discussed by the authors was proposed as a way to guarantee an equality that is supportive of progressive goals rather than in tension with them, and it has been suggested that progressive lawyers should take this opportunity of their respite from judicial power and attend to the development of that Constitution, so that we might at some point in the future urge fidelity to it on the part of our representatives, rather than continue to attend, with the same intense devotion that still characterizes our current legal zeitgeist, to the adjudicated Constitution.
Abstract: Does the Fourteenth Amendment and its Equal Protection Clause – the promise that "no state shall deny equal protection of the laws" – have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts – the adjudicated Constitution – or what I propose to call the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations. My claim in this chapter is that the legislated, rather than the adjudicated, Constitution can more plausibly be read as guaranteeing an equality that is supportive of progressive goals rather than in tension with them. Programmatically, I will suggest that progressive lawyers should take this opportunity of their respite from judicial power and attend to the development of that Constitution, so that we might at some point in the future urge fidelity to it on the part of our representatives, rather than continue to attend, with the same intense devotion that still characterizes our current legal zeitgeist, to the adjudicated Constitution.The very coherence of a "legislated Constitution," however, depends upon an accompanying jurisprudence (or, awkwardly, legisprudence), and that is a jurisprudence that is currently entirely missing from even the most utopian constitutional theorizing. I will conclude by suggesting what that jurisprudence might look like and what its creation, or rediscovery, will require.

3 citations

Posted Content
TL;DR: In this paper, the authors summarized the authors' recommended reforms to the law of promissory fraud and presented a draft Prestatement of the Law of Insincere Promising.
Abstract: This article summarizes the authors’ recommended reforms to the law of promissory fraud. These recommendations are presented as a Draft Prestatement of the Law of Insincere Promising. The basic propositions of the Prestatement are taken, with some modification, from the authors’ book, Insincere Promises: The Law of Misrepresented Intent (2005). This article adds extensive comments, in the style of the Restatements, and a prose introduction identifying three reforms we deem most important. First, courts should drop their insistence that every promise represents an intent to perform, and treat that representation instead as a default. Second, courts faced with claims of promissory fraud should pay more attention to scienter. This means both that promissory fraud claimants should be required to produce separate evidence of intent or recklessness, and that courts should recognize the largely overlooked possibility of negligent promissory misrepresentation. Finally, courts should acknowledge that promissory representations of intent are material only because they say something about the objective probability of performance, and should interpret a representation of intent to perform as saying, absent evidence to the contrary, that there is at least a fifty-percent chance that the promisor will perform.

3 citations

Journal ArticleDOI
03 Feb 2015-JAMA
TL;DR: King v Burwell has the potential to severely impede health care access, eviscerating the ACA’s purpose of universal equitable access and threatening the integrity of the ACA.
Abstract: When the Supreme Court narrowly upheld the individual health insurancemandate inNational Federation of Independent Business v Sebelius (2012), the future of the Affordable CareAct (ACA) appeared secure.However, the case opened the door to 22 states refusingtoexpandMedicaidcoverageforthe poor—amajor setback for health equity. Inaddition, 19 statesopted for fully federally operatedexchanges (marketplaces to purchase insurance), andanother 15 forahybridsystem,withthefederalgovernment retainingownership.Whenstatesdecidednot to formstate-runexchanges, fewexpertsexpected adverse consequences. But all that could change. OnNovember 7, 2014, theUSSupreme Court agreed to hear King v Burwell, which challengesan InternalRevenueService (IRS) ruling that ACA subsidies could be granted to individuals purchasing insurance in federallyoperatedexchanges. If theCourtwere to render these subsidies unlawful, itwould threaten access to health care for millions and undermine the integrity of the ACA. The ACA is often called a 3-legged stool—removing any leg would make the law unsustainable. First, insurers must offer certain defined “essential benefits” without price discrimination based on health status (limited exceptions are made for age and smoking). The Court had already chipped away at this ACA pillar in Burwell v Hobby Lobby Stores, Inc (2014), holding that the US Department of Health and Human Services (HHS) could not require “closely held” for-profit corporations to provide contraceptive coverage against their religious beliefs. Second, to prevent costs from spiraling out of control if the mix of enrollees included a disproportionate number of sick individuals because healthy people opted out, the ACA requires everyone to have health insurance or pay a fine. Third, because many lower-income Americans could not afford health insurance, the government helps to subsidize the cost. Without subsidies, insurance would remain unaffordable and the individual mandate would be unconscionable. King v Burwell threatens to significantlyunderminethis third leg.Thecasecenters on 5 words of the 900-page law (ACA § 1401): subsidies are available to individuals enrolled under an “Exchange established by the State.” The ACA’s drafters expected states to run their own exchanges, but in realitymosthavedeclined.Undera literal interpretation, the lawwouldapplyonly to individuals enrolled through a state exchange, excluding those residing in the 34 states using a federally established exchange. Notwithstanding this literal interpretation, the InternalRevenueService (IRS) has permitted subsidies (“premium tax credits”) for all exchanges,whether stateor federally operated. The Supreme Court should never have agreed to hear the case because there was no split in the lower courts. The Fourth Circuit upheld the IRS’ rule. Although a DC Circuit panel struck it down, the full DC Circuit vacated that opinion, and with new Obama appointees, it was widely expected they too would uphold the IRS ruling. Although “established by the state” appears clear,when readwithin theACA’s context, itmakes little sense—defying the ACA’s purpose and structure. The law says that if states opt out of state-run exchanges, HHS shall “establish and operate such Exchange” (ACA §1321), suggesting that the federal exchange stand in for the state’s, assuming its function. It iswell establishedthat in the face of statutory ambiguity, the Court should defer to the agency’s interpretation. Thus, the Court’s precedents clearly call for upholding the IRS’ reasonable interpretation. King v Burwell has the potential to severely impede health care access, eviscerating the ACA’s purpose of universal equitable access. About 83% of nationwide insurance enrollees applying through the national exchange are eligible for subsidies, worth an average of $2890 annually. The ACA has helped up to 9.5 million uninsured Americans obtain coverage. Withdrawing subsidies in states with federally established exchanges would make insurance unaffordable for a wide swathe of the population, undoing the gains made in access and equity. Of course, individuals without insurance are not a representative sample of the population, but are more likely to be living in poverty, affected by a chronic disease, or belong to a racial and ethnic minority. Price barriers for thesegroupswouldcreateenormous hardship. Strikingdownsubsidies also couldhave dire consequences for the ACA itself. If insurance becomes unaffordable, an individualmandatetopurchase insurancewould be morally and politically unacceptable. However, removing the individual mandate could quickly overwhelm insurance markets,whichwould face ahigher proportionofsickandat-riskpeople,withtheyoung andhealthychoosingtoforego insuranceuntil theyneeded it. This could lead toa “death spiral” in which premiums become increasingly expensive, leading to ever-fewer healthy people enrolling. The Supreme Court is the branch of government intended to be a politically neutral arbiter. Will the Court uphold Congress’ clear intention and safeguard the public’s health?

3 citations

Posted Content
TL;DR: The roots of American family law were planted nearly four centuries ago when New England Puritans embraced civil marriage and divorce. as discussed by the authors identifies and analyses the non-English sources of American Family Law.
Abstract: The roots of American family law were planted nearly four centuries ago when New England Puritans embraced civil marriage and divorce. In England, by contrast, marriage was overseen by the ecclesiastical courts until the mid-eighteenth century, and courts did not grant divorces until well into the nineteenth century. This article identifies and analyses the non-English sources of American family law. The theological case made by Martin Luther in the early sixteenth century for preferring marriage (and divorce) to celibacy laid the conceptual foundation for both civil marriage and fault-based divorce. The Zurich Ordinance of 1525 was not only the first modern marriage and divorce law, it contained no-fault as well as fault grounds for divorce. The reform marriage and divorce practices the Puritans brought with them to New England not only were not English, they were strikingly similar to those of Reformation Europe. Secular control of marriage was adopted by the colonies outside of New England as well, not because of sectarian disputes, but because the Church of England was not able to establish ecclesiastical courts that could oversee marriage as they did in England. Thus a complex mix of sectarian differences and the absence of ecclesiastical courts explains the paradox of why the United States, despite the religious fervor of many of its original colonists, nonetheless was a pioneer in adopting secular marriage and divorce law.

3 citations

Posted Content
TL;DR: In this paper, the authors identify a category of state-building terrorist groups that can be distinguished by the presence of a non-military wing analogous to a civilian bureaucracy that provides services, including food, electricity, and healthcare to the governed population; and a degree of coercive control over civilians that creates observational equivalence between victims and supporters of the group.
Abstract: Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate for the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of a non-military wing analogous to a civilian bureaucracy that provides services, including food, electricity, and healthcare to the governed population; (2) dual-use institutions that simultaneously perform military and civilian functions; and (3) a degree of coercive control over civilians that creates observational equivalence between victims and supporters of the group. As a result of these characteristics, existing targeting frameworks that were designed for primarily military groups such as al-Qaeda tend to penalize civilians when applied to state-building terrorist groups that govern people and territory. The argument is supported with archival Islamic State documents, social media data generated by users in or near Islamic State-controlled areas of Syria and Iraq, interviews with former Islamic State combatants and civilian employees, and original data on the targeting of 11 different zakāt offices on 19 different occasions. These zakāt offices, which are located in densely populated urban areas and simultaneously collect taxes (a war-sustaining activity) and distribute cash assistance and food to civilians (a humanitarian activity), illustrate the costs of targeting dual-use institutions that perform both military and civilian functions. The Article concludes with targeting recommendations that take into consideration the structural vulnerability of civilians living in areas controlled and governed by terrorist groups while still allowing governments to prosecute civilians who aid such groups under domestic material support laws.

3 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