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.

Following the Herd: Bringing Electronic Casebooks into the Law School

Abstract: Should law school faculty integrate electronic casebooks into their courses? After describing the eTextbook market forces, this article posits that digital casebooks will not only be in great demand, but also can assist in lowering the cost of legal education while creating more practice-ready students. The article will also illustrate the recent technological improvements in eCasebook platforms that will address the unique needs of law students, thereby increasing acceptance and usage. The article concludes with a brief survey of current eCasebook alternatives and an argument for the creation of value-added open-source, open-access digital casebooks with assistance from the law library.

The Distinctiveness of Appellate Adjudication

Abstract: This Article concerns two topics that, I hope to show, are vitally connected. One is the distinctive importance of appellate adjudication in the legal system of United States. The other is the working of entangled concepts in the law. This Article argues that courts engineer entangled legal concepts via appellate adjudication, and it is in this respect appellate adjudication is both crucial and unique, at least in the U.S. legal system. Entangled concepts intertwine description and evaluation. They also facilitate and constrain legal reasoning and legal judgments, in ways that distinguish legal adjudication from pure politics or the implementation of public policy. This article demonstrates more fully what it is for a legal concept to be entangled and how entanglement supplies guidance in adjudication. This Article carefully examines the background to MacPherson v. Buick and Justice Benjamin Cardozo‘s particular re-engineering of .negligence‘ and .duty‘, entangled concepts belonging to the same legal taxonomy. This Article also examines how the United StatesSupreme Court has engineered .commerce‘, itself an entangled concept, in order to show that conceptual engineering of entangled concepts occurs outside the context of state common law. The claims made here apply to appellate adjudication in any area of law. Whether we are dealing with private law, public law, common law, or statutory law, or Constitutional law, the defining feature of appellate adjudication is its continuous engineering and reengineering of entangled legal concepts. The merger of fact and value in these concepts explains both the fertility of appellate adjudication and some of the constraints judges work under when they work with legal concepts that entangle fact and value.

The Variable Morality of Constitutional (and Other) Compromises: A Comment on Sanford Levinson's Compromise and Constitutionalism

Abstract: This comment to Sanford Levinson's Brandeis lecture at Pepperdine focuses on the role and types of compromises made during several stages of constitutional processes, formative and constitutive, interpretive and on-going, as negotiated by Constitutional meaning makers (drafters and Supreme Court 'deciders'), and post hoc justifications. This essay discusses recent work on compromise as institutional design, pragmatic or principled, and regime defining and sustaining. Both the prejorative (compromise is unprincipled) and more positive (compromise accounts for the 'reality' and moral existence of different sides of an issue or polity) understandings of compromise are reviewed, in light of Professor Levinson's scholarship on constitutional formation and judicial opinion writing and negotiation, and other scholars' (e.g., Avishai Margalit, Jon Elster, Robert Mnookin and this author's (Menkel-Meadow) work on compromise generally as a moral and practical issue in constitutional, political, and other forms of negotiated political orders.

The Right to Health as the Unheralded Narrative of Health Care Reform

Abstract: IN PASSING THE AFFORDABLE CARE ACT, THE UNITED States took a giant, if partial, step toward joining other nations wherein the right to health constitutes an inalienable moral and legal right. Although not widely appreciated, the right of every person to enjoy the highest attainable standard of physical and mental health (the right to health for short) is not merely an abstract moral imperative. Rather, it is an established international legal precept still to be fully embraced in the United States. Even though the right to health was overshadowed during the health care debate by other narratives, such as insurance reform, cost control, and care delivery, this right remains a central if unheralded narrative of the Affordable Care Act and its legacy. What is this right that engenders these bold claims? It is an assertion of the responsibility of governments to strive for “the highest attainable standard of physical and mental health.” It is an asseveration that governments will respect, protect, and fulfill the right to health by ensuring the availability, accessibility, acceptability, and quality of the care required. It is an averment that governments will honor the tenets of accurate information, nondiscrimination and equality, and participation. It is an avouchment that governments will address the “underlying determinants of health” such as sound housing, clean water, and adequate nutrition, especially as these determinants apply to the needs of poor and other marginalized populations. As such, the right to health constitutes a concept broader than that represented by the right to health care, covering elements that the Affordable Care Act, with its focus on health care, addresses only in limited, although important, ways. The right to health—or more precisely, to health care—as a moral dictum is associated with Senator Edward Kennedy’s impassioned expression of hope “that every American— north, south, east, west, young, old—will have decent, quality health care as a fundamental right and not a privilege.” Others have echoed these sentiments, not least President Obama who framed last year’s health care debate as a core ethical and moral obligation. Americans appear to agree, evidenced by the very existence of and broad support for the Medicare, Medicaid, and CHIP public safety net programs. Moreover, 72% of Americans strongly believe that health care should be considered a human right. The right to health is also a matter of international law, one drawing on the collective force of national constitutions, international and regional treaties, and other instruments. As such, the right to health is as established as the more familiar rights to freedom of expression and religion. Leading the way were British laws as early as 1802 triggered by the health threats of the Industrial Revolution, and the Mexican Constitution of 1843, which recognized the state’s role in public health. In 1925, Chile became the first nation to incorporate the right to health into its constitution. Now more than 100 countries boast a commitment to the right to health or health care in their constitutions. Beyond these national efforts, several critical global pacts incorporate the right to health. First among them was the constitution of the World Health Organization (WHO), which in 1946 identified the “enjoyment of the highest attainable standard of health” as “one of the fundamental rights of every human being.” Two years later, the United Nation (UN) General Assembly adopted the Universal Declaration of Human Rights (UDHR), article 25 of which guarantees the right to “a standard of living adequate for the health and well-being . . . including food, clothing, housing and medical care.” Many international lawyers view the UDHR as creating a binding customary international law, including as an interpretation of the human rights commitments in the UN Charter, under which states have committed to the “universal observance of, and respect for, human rights.” In 1966, the UDHR was expanded upon by the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which asserts that signatory states recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” It was against this backdrop that the UN Commission for Human Rights created the mandate for a Special Rapporteur on the right of every person to enjoy the highest attainable standard of physical and mental health. The combined force of the

L YNN W ELCHMAN , Beyond the Code: Muslim Family Law and the Shar i Judiciary in the Palestinian West Bank (The Hague: Kluwer Law International, 2000). Pp. 444. $160.00 cloth

Abstract: Lynn Welchman's Beyond the Code is a very important book and a serious addition to the legal literature on family law in the contemporary Islamic world. Its most immediate task is to introduce to the reader the historical, institutional, and textual elements of the regulation of the family in the West Bank and Gaza of Palestine. It begins by surveying the history of codification of family law in this region, as well as the evolution of sharia courts in conjunction with secular courts, and proceeds to give a detailed account of how the marriage contract, marital life, and divorce are litigated in contemporary Palestine. It ends with a review of the debate on reforming family law in Palestine that was triggered by the signing of the Oslo Accords and the establishment of the Palestinian Authority as an expression, for the first time in history, of a Palestinian (pseudo-) sovereignty. True to its description on the back cover, the book “presents a systematic analysis of the application of Islamic family law [in Palestine] in nearly 10,000 marriage contracts, 1,000 deeds of Talaq or Khul and 2,000 judicial rulings over a time span that includes Jordanian rule and Israeli military occupation, updating this with material from the beginning of the jurisdiction of the Palestinian Authority.”