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.

Health Insurance Reform and Intimations of Citizenship

Abstract: This article considers the implications of the Patient Protection and Affordable Care Act (PPACA) for social meanings of civic belonging in American society and for possible new forms of individual engagement with the health care system. Once fully implemented, PPACA will have many of the governance characteristics of other social insurance systems, in that it will define membership in a collective undertaking, establish a mechanism for collective security against a shared risk, and channel, incentives and penalize specific behaviors. The article considers the extent to which PPACA has the potential to also produce new narratives and understandings of social solidarity and a heightened degree of participation in the politics of health care. An underlying premise is that the law’s structural and normative realms are mutually constitutive.As a new conceptual lens for approaching these questions, the article introduces and defines the idea of “citizenship practices.” “Citizenship practices” is intended to signify regularized behaviors and interactions with a system of governance and a coherent (although not necessarily universal) set of beliefs about the meaning of those behaviors. The concept of “citizenship practices” could be used in many contexts in which “citizenship” is now overused as a metaphor, and its use would help clarify the scholarly literature on how individuals relate to real or imagined communities.Using the concept of citizenship practices, the article deconstructs the ongoing debates about the constitutionality of PPACA. It does not address the doctrinal arguments at issue, but instead focuses on the impact of the law and debates about the law on understandings of the obligations of citizenship and the possibilities for participation in decision-making. Inexact historical antecedents can be found in the constitutional challenge to Social Security and in participatory consumer citizen administrative bodies. It is impossible to know at this early date exactly what constellation of social meanings will emerge from PPACA, but one component of them will surely be a more explicit sense of who we are as a national community and what we expect of each other.

Threats to judicial independence, real & imagined

Abstract: Dædalus Fall 2008 Public criticism of the federal courts is nothing new.1 Since the beginning of the republic to the present day, politicians and populace have attacked judicial opinions and decried judicial activism. For example, the response to the landmark Supreme Court decisions of the 1950s, in particular those involving desegregation and church-state relations, was a nationwide movement to remove Chief Justice Warren from the bench.2 Billboards around the country proclaimed their aim: “Impeach Earl Warren.”3 Petitions circulated, and over one million Americans signed their names in support of the impeachment effort.4 Some even proposed that Warren be hanged. For as long as there has been a federal judiciary, federal judges have been blasted for purportedly overstepping their bounds. Yet by and large the judges have not abdicated their duty to invalidate laws that they believe offend the Constitution. Public criticism of judicial decisions does not, by itself, necessarily threaten the independence of the judiciary; in fact, under some circumstances, such critiques paradoxically can help bring about a more robust form of judicial independence. Under our constitutional system, the federal judiciary wields carefully circumscribed powers, but within its proper sphere judicial authority is 1⁄2nal and therefore absolute. Among other limitations, federal judges may not issue adviViet D. Dinh

Brief of Amicus Curiae 290 Criminal Law and Mental Health Law Professors in Support of Petitioner's Request for Reversal and Remand, Kahler v. Kansas, 18-6135 (U.S. June 6, 2019)

Abstract: Amici curiae are a group of philosophically and politically diverse law school professors and scholars in the fields of criminal law and mental health from a variety of disciplines who have been teaching and writing about the insanity defense and related issues throughout their careers. They include the authors of leading criminal law and mental health law treatises and casebooks and numerous important scholarly books and articles. Amici believe this case raises important questions about principles of criminal responsibility, the integral role of the insanity defense in Anglo-American law, and the inadequacy of the “mens rea alternative” to the traditional affirmative defense. Their teaching and research on the subject have given them a unique appreciation of the historical and doctrinal significance of the defense of legal insanity.

The Historic Role of Boards of Health in Local Innovation: New York City's Soda Portion Case

Abstract: Childhood and adult obesity pose major risks for cancer, diabetes, and cardiovascular disease, with the poor and racial minorities suffering from disproportionately high burdens of obesity and chronic disease. With current policies failing, cities and states have moved forward with creative prevention measures –- with boards of health driving policy innovation in many local jurisdictions. The New York City Board of Board of Health’s (NYCBH) soda portion limit pushed the boundaries of innovation, but was struck down on June 26, 2014 by New York State’s highest court, which held that the Board trespassed on the City Council’s authority.The Court’s decision ignored the critical role of local health agencies in responding to 21st century public health threats, including epidemics of obesity and chronic disease. The Court narrowly construed the NYCBH’s authority, characterizing its powers as administrative, and thus potentially stifling local innovation. The decision also obscured the fundamental truth that public health policymaking requires complex trade-offs and incremental action, as well as a multifaceted approach to reducing population weight gain. Policymaking often relies upon limited evidence, and agencies experiment with novel ideas while also transforming social norms and pushing the boundaries of public opinion. Although the portion rule would disproportionately affect disadvantaged individuals who drink the largest amount of soda, government’s failure to act represents a greater injustice. Enhancing opportunities to choose a healthy life path better serves the interests of justice, but the Court’s judgment takes us further away from realizing this social aspiration.

Getting Spending: How to Replace Clear Statement Rules with Clear Thinking About Conditional Grants of Federal Funds

Abstract: The use of conditional federal spending has been the target of frequent attacks, both in academia and occasionally in the courts. Although the Supreme Court does not directly police conditional spending legislation in any meaningful way, it does restrict the Spending Clause by means of an actively enforced clear statement rule. Unlike the Spending Clause itself, the rule enjoys near-universal approval, including from such surprising sources as Laurence Tribe and Cass Sunstein. This Article argues that both critics of conditional spending and supporters of the clear statement rule are wrong. Indeed, many of the same arguments that weigh against judicial limitations on the Spending Clause also demonstrate that the rule is unnecessary. For example, I show here that where Congress has no authority to enact regulation directly -- in creating Gun-Free Schools Zones, say -- the States know that Congress must obtain their agreement before any legislation can take effect. That sets the stage for crippling state hold-outs and hold-ups. It is hard to see the need for judicial defense of federalism values when the political process is so effective at achieving the same end. The clear statement rule also seriously undermines conditional spending's usefulness as a fiscal tool for coordinating federal policy. Constitutionally-inspired legislation is especially important in this era of the passive virtues, in which the Constitution is most often enforced by reading a statute or regulation to avoid constitutional doubts. Because federal courts do not have comparable power over state law, and state courts are easily overcome by local politics, the Constitution (in the absence of constitutionally-flavored federal legislation) offers lesser protection against state infringements. Yet the clear-statement rule makes it difficult for spending legislation to fill that void; constitutional reasoning must begin with broad principles, not a minutely detailed code. Thus, this Article argues that we must not only preserve conditional spending, but also unleash it; it is the only way to preserve constitutional balance, and adapt to an evolving world, in our era of active judicial enforcement of federalism values.