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.

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."

The National Individual Health Insurance Mandate: Ethics and the Constitution

Abstract: Within weeks, after signing the nation’s first comprehensive health insurance reform, twenty states filed lawsuits challenging the constitutionality of the Bill’s most politically charged featurem - an individual purchase mandate. If anything, the tax penalty is too low compared with the cost of insurance, so it may not sufficiently incentivize healthy individuals. But it remains deeply controversial because it compels individuals to purchase coverage they choose not to have, raising the question whether Congress can lawfully and ethically require individuals to contract with, and transfer money to, a private party. To be sure, the individual mandate lacks a clear American precedent. (It has worked successfully in other countries, such as Australia). Compulsory automobile insurance, for example, is a state (not a federal) requirement, operates as a condition of exercising the privilege of driving, and requires coverage for injuries to others (not to the insured). The absence of health insurance creates harmful consequences, including lower quality of life, increased morbidity and mortality, and higher financial burdens. Many individuals cannot afford insurance, but others choose not to insure; >9 million people earning >$75,000 had no coverage in 2007. Yet, many previously healthy people suffer illness or injury, requiring treatment in emergency departments, most of which is uncompensated. “Free riders” rely on society to pick up the costs ($43 billion in 2008) through: (1) higher insurance premiums (>$1,000 annually) and higher taxes (e.g., hospital subsidies, Medicaid, and Medicare). Individuals often delay purchasing health insurance until they become ill, creating an “adverse selection” problem for insurers. At its worst, free riding and adverse selection result in a downward spiral of increased premiums and a shrinking insurance pool, making healthcare less affordable for everyone. The pivotal constitutional concern is that government will penalize individuals for failing to buy health insurance (“doing nothing. Here, I show why failing to buy health insurance is far from “doing nothing”, and I explore the alternative federal powers under the constitution: regulating interstate commerce and taxing to raise revenue and discouraging risk behavior. Comprehensive healthcare reform envisages a social contract, which recognizes that all of us may become ill one day and where everyone shares the cost. The mandate is not an unjustified limit on freedom, but rather is vital to a decent society. If the social contract must be accomplished the “American way” through the private system, then the simple logic of insurance has to prevail, which is to spread the risk among everyone—rich and poor, healthy and sick, young and old alike. And for that to happen, the judiciary will have to uphold the individual purchase mandate.

'A New Law on Earth' Hannah Arendt and the Vision for a Positive Legal Framework to Guarantee the Right to Have Rights

Abstract: Hannah Arendt contributed one of the most enduring and insightful examinations of the paradox of human rights in her articulation of the existence of a right to have rights. This article provides a unique intervention into the scholarship, arguing that the interpretation of a right to have rights most faithful to Arendt’s vision is the creation of an enforceable right, enshrined in positive international law, in which human rights can be realized separate and apart from the rights of citizens. In the nearly 70 years since Arendt articulated the existence of a right to have rights, there has been a proliferation of human rights treaties, conventions, and declarations enshrining what are deemed to be universal rights guaranteed to all people. As this article outlines, even with these important advancements, the modern human rights framework fails to guarantee a right to have rights. The plight of the Rohingya illustrates the tragedy that can unfold due to our failure to guarantee the right to have rights. The Rohingya have endured decades of persecution that culminated in a violent crackdown and massive displacement in 2017. Even with an investigation by the International Criminal Court, a case before the International Court of Justice, and the establishment of the Independent Investigative Mechanism for Myanmar, the Rohingya are likely to persist in a state of rightlessness nearly identical to that described by Arendt nearly 70 years prior. This article provides a solution. It argues that a right to have rights must be guaranteed through positive international law. The right would guarantee the legal personality of the individual under international law, thereby strengthening the individual as a subject of international law, and take the form of a procedural right to the restoration of human rights. As this article demonstrates, only when the right to have rights is guaranteed will the loss of a nationality no longer result in the loss of all rights.