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.

Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right

Abstract: Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules of construction apply only when interpretation runs out, such as when a text’s meaning is ambiguous or does not address an issue. In fact, a rule of construction is always necessary to determine a legal speech act’s effect, including when its meaning is clear and definite. Construction does not supplement interpretation, but compliments it. Second, there exists more than one form of interpretation, and correspondingly more than one type of meaning. The meaning a text or other speech act has depends on the questions one asks of it. Third, which type of meaning is legally relevant depends on the applicable rule of construction. Rules of construction are in this sense conceptually prior to legal rules of interpretation. This priority has important consequences for how legal rules of interpretation are justified. Finally, because there exist multiple types of meaning, when one form of interpretation runs out, another form might step in. Whether that is so again depends on the applicable rule of construction. These four claims apply to legal interpretation and construction generally. This Article supports them with a close examination of the interpretation and construction of contractual agreements. It then argues that this account of interpretation and construction illuminates the shared structure of Joseph Story’s and Thomas Cooley’s theories of constitutional interpretation, and by extension theories of constitutional interpretation generally.

Invisible Victims: A Comparison of Melville's Bartleby the Scrivener and Glaspell's A Jury of Her Peers

Abstract: Somehow, by some process, some of the pains and suffering we sustain in life become cognizable legal injuries: if we are hurt through the defamatory utterances of others, we might seek compensation; if we suffer a whiplash in an automobile accident when we're rear-ended on the road, we might seek compensation for the pain we're put in; if we lose profits we might have made but for the interference of some third party with a contract we've entered, we might recover that loss. Other pains, although concededly injurious, and even concededly "caused" by some blameworthy individual or entity, are not cognizable. Still others are also concededly injurious, but nevertheless not cognizable because they were not in fact caused by a culpable individual.There is, however, another type of suffering – another "category" of harms – toward which the law stands in a quite different relationship. As a number of critical legal scholars have argued, some of the sufferings of daily life – some of the harms individually sustained – are not simply not compensated by our positive law, but their very existence is aggressively denied, trivialized, disguised or legitimated by our legal rhetoric. These harms tend, not coincidentally, to be the byproduct of institutions, social systems, and structures of belief which overwhelming serve the interests of powerful individuals, groups or subcommunities.Although law does not cause these harms it is complicit in the process by which they become "legitimate" – an accepted part of the terrain of daily living – and hence become invisible, often even to the individuals who sustain them. Particularly from a perspective internal to the legal system, such harms can be extremely hard to discern.In this article, I hope to take this Thomasian claim one step further. I will argue that two short novellas, Herman Melville's "Bardeby the Scrivener" – which Thomas does discuss and Susan Glaspell's "A Jury of Her Peers" – which he does not – not only seek to articulate and give voice to the victims of such legitimated harms in the way Thomas suggests, but that they also quite directly concern the process of legitimation itself. Thus, legitimation, as well as the invisible pains that are legitimated, is the subject matter of both stories. Both stories do indeed aim to make more visible the suffering of two groups of people in classically liberal societies: in "Bartleby," employees in certain kinds of labor markets, who bear the brunt of the pain of alienating and commodifying the products of labor, and in "Jury of Her Peers," wives in traditional, patriarchal marriages, who bear the weight of the institutionalized loneliness, abuse and injustice that such marriages often entail. What both novellas, each written by astute and critical professional legal observers, aim to show is the way in which law masks or obfuscates this suffering. Both novellas, in short, aim to depict the "process of legitimation."

Product patents and access to innovative medicines in a post-trips-era

Abstract: This paper examines access to new and innovative pharmaceuticals in a post-TRIPS era. The WTO’s TRIPS Agreement (TRIPS) makes it obligatory for WTO members – except least-developed country members (LDCs) - to provide pharmaceutical product patents with a 20-year protection term. Developing country members, other than LDCs, were meant to be compliant with this provision of TRIPS by 2005. Access to medicines generally includes two distinct components, viz. availability and affordability. This study investigates these two sub-components of access to medicines and poses two questions in this context: (1) How does the introduction of product patents in pharmaceuticals affect the likelihood of pharmaceutical firms making available new and innovative medicines in those markets? (2) For launched new and innovative medicines, how much do firms adjust their prices to local income levels in order to make these products affordable? Using launch data from 1980 to 2017 covering 70 markets, the study finds that introduction of product patent for pharmaceuticals in the patent law has a positive effect on launch likelihood, especially for innovative pharmaceuticals. However, this effect is quite limited in low-income markets. Also, innovative pharmaceuticals are launched sooner than non-innovative ones, irrespective of the patent regime in the local market. Using a panel data set of originator and generic prices from 2007 to 2017, the study finds evidence of differential pricing for both originator and generic products. Overall, originators differentiate by about 11 percent and generics by about 26 percent. Differential pricing is larger for pharmaceuticals that treat infectious diseases, particularly for HIV medicines, than for non-communicable diseases (NCDs), suggesting that global responses to infectious epidemics have benefited people with those diseases in poorer markets in terms of access to cheaper generics. However, neither originators nor generics adjust pharmaceutical prices fully to local income levels. We also find that the more effective way of driving down prices is competition within a particular medicine market which occurs in the absence of market exclusivity.

Law and … Michael Freeman: The Scholar, the Man, the Modern Renaissance Humanist

Abstract: This essay is the valedictory essay for a festschrift honoring Professor Michael Freeman of the University College of London (UCL) Faculty of Law reviewing his published work of over 85 books and hundreds of articles on “law and society,” transdisciplinary study of law and legal institutions in such subjects as jurisprudence, theories of law, medical law, legal and medical ethics, rights of children, family law, domestic violence, law and literature, popular culture, law and neuroscience, law and anthropology, sociology, health law, dispute resolution, religion, law and personal life, cricket, and law and countless other applications of social realties to the making, interpretation and enforcement of law. The essay provides examples of the career of an exemplary legal scholar whose primary goals in legal scholarship and pedagogy is to query how law can be used to improve the lives of the disempowered and to deliver real, not just imagined, social justice. After more than 20 years of editing the series “Law and……….”, Michael Freeman is now honored with his own “Law and ..Michael Freeman” volume with over 40 contributors who laud his contributions to their thinking and honor him with modern applications of his work to their many fields. This essay comments (by his editorial colleague of 10 years of the International Journal of Law in Context, Cambridge University Press) on Michael’s contributions to “law and humanity” and provides a bibliography of his over 80 edited books.

RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities

Abstract: Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical approach to resolving this dilemma in applying RLUIPA is the strongest objective template for determining when the Fair Terms of RLUIPA have been violated by zoning authorities.In order to introduce a needed quantum of certainty in judicial decision making, this Article concludes that one of two options should be pursued: resolving cases under the rubric of conformity with objective criteria — thereby vindicating the prerogative of local zoning authorities while protecting sectarian land users from the limitless discretion of a provincial bureaucracy; or, alternatively, rationalizing the procedures of a RLUIPA action in such a manner that recognizes a land user’s statutory claim under this legislation establishes a prima facie case. Under this second option, such a case could be rebutted upon the showing by a locality that its actions were reasonable under the common law doctrine of nuisance. A surrebuttal to this assertion could be made by a showing by the plaintiff that there was a discriminatory intent exhibited by the governmental authority in its actions to restrict the religious use of land. Each of these two evidentiary approaches represent a fair reading of RLUIPA — and, each would serve to lift the veil of ambiguity covering the capacious issue of religious land use under present law.