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.

Conditional Taxation and the Constitutionality of Health Care Reform

Abstract: This brief essay argues that the recently-enacted tax on individuals who fail to purchase health insurance is constitutional. Contrary to the claims of more than a dozen state Attorneys General, this "individual responsibility" requirement is well within Congress' taxing power under Article I, section 8. That the tax has a regulatory purpose is irrelevant, a point that has been settled law since at least 1953. Moreover, the tax is not subject to the constitutional requirement that "direct" taxes be apportioned, because (1) it is an income tax, and thus exempted from apportionment by the 16th Amendment; (2) even if not an income tax, it is nonetheless an indirect tax, since it is a tax on a particular use of property or government services; and (3) it is an indirect tax because it is not reasonably capable of apportionment. I also defend these doctrinal conclusions against possible normative critiques. Critics claim that such a broad taxing power could not be consistent with a constitutional text that grants only limited powers to Congress. But the taxing power in fact is limited; however, its limits are practical, political, and interpretative, rather than (as with the Commerce power) limits on scope. Nor would a broad reading of the power to tax "for the general welfare" render the text separately enumerating the powers of taxing for defense and to pay the nation's debts superfluous. Separately stating those powers served a political purpose in emphasizing the new nation's capacity to its foes and creditors, and guaranteed a minimum level of content for the otherwise sweeping term "welfare."

Vertical Mergers in a Model of Upstream Monopoly and Incomplete Information

Abstract: We examine the role of private information on the impact of vertical mergers. A vertical merger can improve the information that is available to an upstream monopolist because, after the merger, the monopolist can observe the cost of its downstream merger partner. In the pre-merger world, because the costs of the downstream firms are private information, the monopolist has incomplete information and cannot implement the monopoly outcome: The expected pre-merger equilibrium price of the downstream product is lower than the monopoly price. After a vertical merger, the equilibrium input price that is charged to the downstream rival can either increase or decrease -- depending on whether the downstream merger partner’s cost is low or high, respectively. However, in all cases the equilibrium price of the downstream product increases to the monopoly price. Therefore, the merger leads to consumer harm even when it leads to a reduction in the input price. The merged firm, however, cannot extract all of the monopoly profit: The merger causes production inefficiency (when the downstream rival has a relatively small cost advantage) and the downstream rival still earns an information rent (when it has a relatively large cost advantage). These results also have implications for vertical merger policy.

Clarifying Relative Plausibility: A Rejoinder

Abstract: This rejoinder replies to twenty commentaries on our article, "Relative Plausibility and Its Critics" (available at: https://ssrn.com/abstract=3179601.) Our response has four objectives: (1) presenting further details regarding relative plausibility and the scope of our project in order to address some of our critics' claims of ambiguity; (2) examining some important methodological considerations; (3) clarifying the significance of the conjunction problem and its role in the "probability debates"; and (4) noting avenues for future research.

The Effort to Reform the Federal Criminal Justice System

Abstract: The federal criminal justice reform community scored an important victory with the passage of the First Step Act, a federal sentencing and prison reform bill that President Trump signed into law in late 2018. First Step’s passage broke many years of congressional gridlock around criminal justice reform bills, marking Congress’s departure from forty years of policies advancing the carceral state. First Step’s passage didn’t happen by accident. The federal reform community is now better funded, more prolific, and more politically diverse than ever before, and it successfully provided the political cover necessary for congressional members to vote for reform. This Essay describes the difficult movement for federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future federal reforms, while providing a normative analysis of the criteria the federal justice reform community should use in deciding whether to support particular reforms.

Sovereign Immunity, Due Process, and the Alden Trilogy

Abstract: In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the "forum allocation" interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress acting through Article I. On the same day, however, the Court appeared to resurrect the forum allocation interpretation of the Eleventh Amendment with respect to a subset of federal laws: those that establish rights that constitute "property" or "liberty" within the meaning of the Fourteenth Amendment's Due Process clause. The Court in Florida Prepaid v. College Savings Bank affirmed that patents are property and that a state violates the Due Process clause when it deprives persons of such property without affording them an adequate compensatory remedy. The extent to which the Due Process principle articulated in Florida Prepaid undoes the sovereign immunity principle articulated in Alden depends on the breadth of the concepts of property and liberty. Although the third case in the Alden trilogy, College Savings Bank v. Florida Prepaid, makes it clear that not all federal rights are "property" for purposes of the Due Process clause, other cases, which the Court did not reject or even discuss, stress that the concepts of liberty and property are broad indeed. In particular, the "new property" cases define property in such a way as to include the right to accrued wages invoked by the plaintiffs in Alden. Thus, the Florida Prepaid's Due Process exception to Alden's sovereign immunity principle may be broad enough to have required a different result in Alden itself, had the exception been invoked. Alternatively, the decision in Alden, alongside that in College Savings Bank, may signal a dramatic narrowing of the Court's definition of "property" and "liberty." If so, the sovereign immunity tail is beginning to wag a large Due Process dog.