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.

Online Appendix for Damage Caps and Defensive Medicine, Revisited

Abstract: This online appendix contains additional results for Paik, Black, and Hyman (2016), Damage Caps and Defensive Medicine, Revisited.The underlying article is available from SSRN at http://ssrn.com/abstract=2110656.

Roe v. Crawford: Do Inmates Have an Eighth Amendment Right to Elective Abortions?

Abstract: This note examines the legal questions surrounding incarcerated women who wish to receive an abortion. The note examines the 8th Circuit's ruling in Roe v. Crawford and explores the two legal arguments presented in that case. While the court ultimately found the Fourteenth Amendment argument valid and rejected the Eighth Amendment, the author argues that grounding inmate abortion rights in the Eighth Amendment is ultimately a more sustainable solution for reproductive justice advocates. The core of an Eighth Amendment case is presented with corresponding medical evidence that argues that not only should inmates have access to abortions, but that they should be funded the same as any other serious medical need under the Eighth Amendment.

The Choice Between Madison and FDR

Abstract: This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause.

Judges as Advicegivers

Abstract: Since Bickel, the Court has been understood as having a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. This Article contends that there is a fourth power for courts, called advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, unconsciously at times, consciously at others, and this Article reveals some of these instances and seeks to provide a normative justification for the practice. The Article breaks down advicegiving into several categories, and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for coordinate branches, while also serving goals of federalism, enhancing political accountability, and encouraging judicial honesty. The Article begins with a historical discussion of advicegiving, centering largely on the Founding. It then goes through four main examples from the 1996 Supreme Court Term, and contrasts those cases with several others. In each of the four cases, I criticize the majority for ignoring the model, and use the case to show how advicegiving could have enhanced structural fidelity and governmental functioning. In Clinton v. Jones, I argue that the Court should have asked Congress for a clear statement about the meaning of the relevant statutes. In the right-to-die case Quill v. Vacco, I argue that before stepping into the controversy on its own, the Court should have asked the New York state courts to resolve the thorny questions about the meaning and reach of the state statute. By seeking a state court determination, the Court could have planted the seeds of a productive federal-state conversation about the state statute. In the death penalty case Gray v. Netherland, I show how federal courts can single out particularly egregious death penalty cases and call on governors to review them for commutation. This strategy is particularly appropriate when procedural bars are lurking in the case; a court opinion can explain those procedural bars, thus preventing state officials from hiding behind the imprimatur of a court's decision not to interfere with an execution. In the last case, United States v. Printz, I explain why courts that strike down legislation should provide blueprints of constitutional methods to achieve the same policy goals. Each of these cases illustrates a separate type of advicegiving, and reveals some of the virtues of the model. The Article concludes by considering some of the objections to advicegiving, and explains why advicegiving is a viable alternative to the Court's other powers in appropriate cases.

A Turning Point in Merger Enforcement: Federal Trade Commission v. Staples

Abstract: This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC's successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.