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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: In this paper, the authors argue that the best explanation for the conservatism of even this nominally "liberal" interpretation of liberty by an unquestionably liberal jurist is that it stems from the general need of all members of the Court to interpret the Constitution in a way that vindicates the "jurisprudential virtues" of good judicial decision-making Those virtues, they suggest, are themselves conservative, and perhaps necessarily so.
Abstract: What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H v Gerald D Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions I will sometimes call this the "traditionalist" interpretation of liberty Justice Brennan, by contrast, argued for a much broader, and nominally more liberal, interpretation The liberty protected by the fourteenth amendment, Brennan contended, means the liberty to enjoy those broad areas of life – such as parenthood, privacy, and sexuality – which have been identified as essential to liberty by the relevantjudicial precedent of the liberal Warren and Burger Court era I will sometimes call this the "precedential" interpretationIn this essay I will briefly argue that, appearances notwithstanding, Justice Brennan's precedential interpretation of liberty, no less than Justice Scalia's traditionalist one, is at its root deeply conservative I will then argue that the best explanation for the conservatism of even this nominally "liberal" interpretation of liberty by an unquestionably liberal jurist is that it stems from the general need of all members of the Court – liberal as well as conservative – to interpret the Constitution in a way that vindicates the "jurisprudential virtues" of good judicial decision-making Those virtues, I will suggest, are themselves conservative, and perhaps necessarily so It is therefore not surprising that constitutional interpretations rendered by even the liberal Justices – such as Justice Brennan's interpretation of "liberty" in Michael H – have conservative overtones and consequencesSecond, I will suggest that the Justices' collective need to constrain interpretation by the ethical demands of the adjudicative, virtues has cramped our understanding of liberty, as well as of the Constitution's other general phrases We ought to liberate the interpretive questions – what is liberty, and what constraints does it impose on state action – from their historical associations with the ethical need to constrain judicial decision-making By doing so, we might achieve a more progressive, but also more accurate, understanding of the nature of individual liberty than that propounded by either Justice Brennan or Justice Scalia in their respective decisions in Michael H

2 citations

Journal ArticleDOI
09 Oct 2018-JAMA
TL;DR: His varying positions related to consumer protections, environmental regulation, and antidiscrimination protections lend further to major concerns on the maintenance of settled positions of the Court on these and other critical health issues.
Abstract: President Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer protections, environmental regulation, and antidiscrimination protections lend further to major concerns on the maintenance of settled positions of the Court on these and other critical health issues.

2 citations

Journal ArticleDOI
TL;DR: In this article, the authors argue that negligence has an important advantage over strict liability in a world with unawareness, where a person fails to conceive all feasible acts or consequences or to perceive as feasible all conceivable act-consequence links.
Abstract: Unawareness is a form of bounded rationality where a person fails to conceive all feasible acts or consequences or to perceive as feasible all conceivable act-consequence links. We study the implications of unawareness for tort law, where relevant examples include the discovery of a new product or technology (new act), of a new disease or injury (new consequence), or that a product can cause an injury (new link). We argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

2 citations

01 Dec 2015
TL;DR: O presente trabalho analisa as diferencas entre as regras de monopolizacao do antitruste norte-americano and as caracteristicas do abuso de dominância europeu as mentioned in this paper.
Abstract: O presente trabalho analisa as diferencas entre as regras de monopolizacao do antitruste norte-americano e as caracteristicas do abuso de dominância europeu, assim como a concretizacao dessas diferencas nos divergentes caminhos percorridos pelas investigacoes do Federal Trade Commission e da Comissao Europeia acerca da denuncia de vies no mecanismo de busca do Google. Por meio do estudo do direito comparado e da jurisprudencia brasileira sobre o abuso de posicao dominante, o presente trabalho busca apontar qual a direcao mais provavel a ser tomada pela investigacao brasileira em curso sobre o tema e os principais desafios a serem enfrentados pelo CADE neste percurso.

2 citations

Journal ArticleDOI
TL;DR: In this paper, the authors consider the role of duties-to-serve in the housing finance market, the patchwork of obligations on lending institutions to reach out to traditionally underserved communities and borrowers.
Abstract: In this chapter, we consider the role of duties-to-serve in the housing finance market -- the patchwork of obligations on lending institutions to reach out to traditionally underserved communities and borrowers. We review the current regulatory framework and history of various duties-to-serve, including the Community Reinvestment Act, GSE Affordable Housing Goals, and FIRREA requirements for Federal Home Loan Banks, and identifies several problems within the framework. Going forward, we argue, a fair and inclusive housing finance market needs to involve a reconceptualized set of duties-to-serve that recognize the public purposes of financial services. Accordingly, we recommend four changes to the duties-to-serve regulatory framework: (1) duties-to-serve should apply universally to the entire primary market, regardless of institution type; (2) duties-to-serve should apply equally to all secondary market entities; (3) duties-to-serve must be supported by a more robust set of evaluative tools, metrics, and incentives; and (4) duties-to-serve must have a credible enforcement mechanism. To effectuate these changes, we suggest the creation of an independent duty-to-serve commission that would advocate for greater financial inclusion and serve as a check on financial institutions' compliance with regulatory requirements outside of prudential bank regulators. An unconflicted institutional actor with a single duty of advocating for duties-to-serve would reduce the regulatory arbitrage incentives that plague the current duties-to-serve regime.

2 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