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.

Welcome to the New Originalism: A Comment on Jack Balkin's Living Originalism

Abstract: In this short piece for a symposium on Jack Balkin's new book, Living Originalism, I welcome Jack Balkin into the originalist camp. I discuss how and why a nonoriginalist can become an originalist. By discussing how I eventually became an originalist at the end of the last century, I hope to shed some light on what exactly is so remarkable about Jack Balkin’s move. After discussing the appeal of the New Originalism that account for Balkin's originalist move, I conclude by offering a cautionary note about the use of "underlying principles in Balkin's "text and principle" approach, which in certain iterations can be indistinguishable from the old living constitutionalism that Balkin has put behind him.

Habeas as Forum Allocation: A New Synthesis

Abstract: The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody.

Interpreting Liberty and Equality Through the Lens of Marriage

Abstract: In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but which this Court positions as closely linked to respectability. Dignity and marriage are interwoven in the Court’s analysis, creating implicit bounds for liberty and equality. As a result, access to a legal status of enormous material and cultural value appears to be as closely linked to social conformity as to law.Looking to the near future, I point out that, despite the breadth of its language, Obergefell leaves three important questions unanswered: whether the Court’s liberty analysis will extend to non-marital intimate relationships; whether the Court’s equal protection holding will suffice to prohibit discriminatory government policies that do not trench on fundamental rights; and whether there is a commensurate fundamental right not to marry without forfeiture of public benefits that favor persons who choose to marry. These are among the next frontiers in the field of state regulation of sexuality and adult relationships. From a law and social movements perspective, the achievement of equal access to marriage raises for the LGBT rights movement the same question long faced by other civil rights movements: whether and how to seek more robust understandings of equality under law. Obergefell marks an important step forward in efforts to end discrimination, which merits celebration, but it raises as many questions as it answers.

Reducing Distracted Driving: Regulation and Education to Avert Traffic Injuries and Fatalities

Abstract: In this article, we consider the legal and policy implications of distracted driving (the tendency of people to use electronic devices while operating a motor vehicle). After reviewing the empirical evidence showing that distracted driving has serious adverse consequences, we discuss the legal basis for governmental interventions to reduce distracted driving. These interventions include laws restricting the use of electronic devices while driving, especially sending text messages. Since drivers have at best a reduced expectation of privacy, these restrictions should easily survive legal challenges. At the same time, it is important to consider the responsibility of automobile manufacturers to improve safety though design changes. We also advocate health education to change social norms to reduce distracted driving.