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.

Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional

Abstract: The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims. First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of wholly intrastate activity: the substantial effects doctrine. Although commonly conceived as a Commerce Clause doctrine, from its inception this doctrine has been grounded in the Necessary and Proper Clause. In the 1990s, the Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and noneconomic intrastate activity. Because the individual mandate fails to satisfy the requirements of this test as understood under existing doctrine, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The mandate also fails to satisfy an alternative to the substantial effects doctrine that was proposed by Justice Scalia in a concurring opinion. Second (Part III), because the “individual responsibility requirement” purports to be a regulation of commerce and cannot possibly be construed as a tax, it is not justified under the tax power of Congress; and, if the “requirement” or mandate is an unconstitutional regulation, there is nothing for the “penalty” to enforce. Neither is the penalty, considered apart from the regulatory requirement, a tax under current doctrine. Third (Part IV), the Supreme Court should not further expand Congress’s power beyond existing doctrine to allow it to mandate that individuals engage in economic activity by entering into contracts with private companies. Such economic mandates are directly analogous to the commandeering of the states that the Supreme Court has held to be an improper exercise of the commerce power. The very few mandates that are imposed on the people pertain to their fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation. A newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state by unconstitutionally commandeering the people.In Part V, I conclude with a “realist” assessment of the likelihood that the Supreme Court will actually find the mandate to be unconstitutional.

Doing Good Instead of Doing Well? What Lawyers Could be Doing in a World of 'Too Many' Lawyers

Abstract: This paper explores some of the misalignment in the legal profession in terms of allocation to particular parts of the profession. The paper suggests that there are not “too many lawyers,” but that lawyers could and should be doing other things, beyond conventional forms of legal representation, both for access to justice, and for transformations of the legal system and human problem solving. Lawyers can perform different roles in dispute resolution (mediating, arbitrating, negotiating, as well as litigating), including performing design functions for organizations and other sites of iterated disputes, advising individuals and entities about how to handle and “manage” conflict in order to actually reduce the need for conventional legal services. The paper explores issues of what constitutes “legal knowledge and expertise” and how such knowledge might be deployed to solve complex social and legal problems outside of conventional legal professional boundaries. Contrasts are made with other areas of expertise and the restructuring of professional knowledge in other fields such as business consulting and architecture. The paper concludes by suggesting that lawyers and legal educators need to proactively reframe what is considered to be legal work and legal education for new ways of legal and human problem solving to be studied and learned.Este articulo analiza algunos desajustes en la distribucion de determinadas partes de la abogacia. Se sugiere que no hay "demasiados abogados", sino que los abogados podrian y deberian estar haciendo otras cosas, mas alla de los sistemas convencionales de representacion legal, tanto en el acceso a la justicia, como en las transformaciones del sistema juridico y la resolucion de conflictos humanos. Los abogados pueden asumir diferentes papeles en la resolucion de conflictos (mediacion, arbitraje, negociacion, o defensa juridica), incluyendo el diseno de funciones para organizaciones y otras instituciones dedicadas a las disputas, aconsejando a individuos y entidades sobre como manejar y “gestionar” los conflictos, con el fin de reducir de forma real la necesidad de los servicios juridicos convencionales. El articulo explora los asuntos relacionados con "el conocimiento y la experiencia juridica" y como se puede utilizar este conocimiento para resolver problemas sociales y legales complejos que quedan fuera de los limites profesionales juridicos convencionales. Se comparan con otras areas de conocimiento y con la reestructuracion de los conocimientos profesionales en otros campos, como las empresas consultoras y de arquitectura. El articulo concluye sugiriendo que abogados y profesores de derecho deben replantear de forma proactiva lo que se considera trabajo legal y educacion juridica, para estudiar y aprender nuevas formas de resolver conflictos humanos y legales.

Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum

Abstract: Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum – regardless of the merit of the underlying claim – for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule. In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong merits claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this procedural bar had a dramatic effect on the U.S. asylum system. Until now, however, there has been no systematic, empirical study of the effects of the deadline on asylum seekers and the asylum system. The Department of Homeland Security (DHS), which is the first level adjudicator of affirmative applications for asylum, supplied the authors exclusively with a database of asylum claims that has never before been analyzed. This database includes demographic and other characteristics of all principal applicants for asylum before DHS since September 1998 – more than 300,000 cases – and the decision reached in each case. In this article, the authors report, for the very first time, what that database shows about DHS’s application of the one year deadline. They find, among other things, that: •Over the entire time frame studied, DHS determined that nearly a third of all affirmative asylum applicants missed the filing deadline. •In the years immediately after the deadline went into effect (FY 1998-FY 2002), DHS found only 27% of applicants to be late, but after that, DHS determined a significantly higher percentage to be late (35% from FY 2003 through June 8, 2009). •DHS has rejected the applications (finding no applicable exception) in the cases of 59% of those who were determined to have filed late (18% of all affirmative asylum applicants). •Applicants from certain countries such as the Gambia and Sierra Leone are much more disadvantaged by the deadline than applicants from certain other countries, such as Haiti and India. The deadline may particularly impact refugees who, upon arrival, are unable to find a community of emigrants from their home countries who could warn them about its existence. •It is likely that as a result of the deadline, since April 1998 DHS has rejected more than 15,000 asylum applications (involving more than 21,000 refugees) that would otherwise have been granted. The authors conclude that because the costs of the one-year deadline exceed its benefits, it should be repealed, as proposed by several bills that have been introduced in Congress.

An Economic Analysis of the Pre-Deeming US Market for Nicotine Vaping Products.

Abstract: Objectives Public health policies are often enacted without adequate consideration of the existing market structure or their impacts on that market structure. This paper provides context for the potential impact of regulations on nicotine vaping products (NVP) use by providing a structural analysis of competition in the US NVP market before FDA regulation. Methods A literature review was conducted with the aim of providing a framework for analysis that: 1) defines the market; 2) evaluates market concentration; 3) identifies entry barriers; and 4) examines firm conduct. Results The NVP market includes retail, internet sellers and vape shops. Although conventional retail became more concentrated after the major cigarette companies entered the NVP market, the vape shop and internet sectors remain substantially less concentrated, producing an overall low market concentration, with few entry barriers and competitive behavior. Conclusions The largely unregulated US NVP market has been highly competitive, with a high degree of innovation. However, new FDA deeming regulations as applied to NVPs could make it difficult for smaller companies to remain in the market and could discourage new companies and new product innovations from entering the market.

Preserving Monopoly: Economic Analysis, Legal Standards and Microsoft

Abstract: This paper examines a number of issues in the economics and law of leverage and monopolization through the lens of the Microsoft case. The paper explains how Microsoft's practices can be divided into two categories -- exclusivity and incompatibility. This exclusionary conduct has the effect of preserving its operating system monopoly from the threat of competition, a characterization which does not violate the single monopoly profit theory. After carrying out an economic analysis of this exclusionary conduct, the paper then uses a decision theoretic approach to evaluate alternative legal rules for governing such alleged monopolizing conduct.