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.

Unthinking the Ticking Bomb

Abstract: Public debate about US torture policy has been seriously distorted by a nearly obsessive preoccupation with the "ticking bomb scenario" (TBS) As many have noted, the TBS requires the conjunction of many improbable conditions: interrogators must know there is a ticking bomb, know that they have captured the right person, know that he knows where it is, know that he won't talk without torture, know that torture is likely to make him talk, know that he cannot hold out or give misleading information long enough for the bomb to go off, know that the torture won't kill him or render him unconscious, know that lives cannot be saved by other means (eg, evacuating the building) Given the vanishingly slight probability of all these conditions being met, why do we still act as though the debate about torture is little more than the debate about ticking bombs? This paper does several things First, it argues that one likely reason for our preoccupation with the TBS is that we may have vengeful or hateful feelings toward the captive, and we conflate the desire for retribution with the desire to save lives through intelligence gathering Second, it examines three supposed real-life examples of the TBS, and shows that they are at best disputed and at worst outright urban legends Third, the paper tries to explain why torture is worse than other forms of political violence, justifying a more rigorous prohibition against torture The remainder of the paper is philosophical, discussing the ethical and meta-ethical assumptions behind the TBS My vehicles are Henry Shue's pioneering 1978 paper on torture and his more recent revisiting of his 1978 approach The present paper explores Shue's dictum about why the TBS is the wrong focus of discussion ("there is a saying in jurisprudence that hard cases make bad law, and there might well be one in philosophy that artificial cases make bad ethics") By distinguishing four possible meaning of this dictum, the paper argues that the most compelling is the view that "the unthinkable" is an important moral category that we disturb at our peril, and that the TBS, by presenting a cartoonish hypothetical as though it were reality, aims to convert a moral choice into a stylized brain-teaser and thus to efface the boundary between the thinkable and the unthinkable

The Fourth Amendment in a World Without Privacy

Abstract: This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.

The Shadow of State Secrets

Abstract: The shadow of state secrets casts itself longer than previously acknowledged. Between 2001 and 2009 the government asserted state secrets in more than 100 cases, while in scores more litigants appealed to the doctrine in anticipation of government intervention. Contractor cases ranged from breach of contract, patent disputes, and trade secrets, to fraud and employment termination. Wrongful death, personal injury, and negligence suits kept pace, extending beyond product liability to include infrastructure and services, as well as conduct of war. In excess of fifty telecommunications suits linked to the NSA warrantless wiretapping program emerged 2006-2009, with the government acting, variously, as plaintiff, intervenor, and defendant. In cases stemming from allegations of Fourth and Fifth Amendment violations, torture, environmental degradation, breach of espionage contracts, and defamation, the government defended both the suit and state secrets assertions. The doctrine also played a role in the criminal context.Collectively, these cases underscore the importance of looking more carefully at how the doctrine actually works. They also suggest the emergence of a new form of “greymail”: companies embedded in the state may threaten to air legally - or politically-damaging information should the government refuse to support their state secrets assertion. And they challenge the dominant paradigm, which tends to cabin state secrets as an evidentiary rule within executive privilege, suggesting in contrast that it has evolved to become a powerful litigation tool, wielded by both private and public actors.

Scaling Up Deliberative Democracy as Dispute Resolution in Healthcare Reform: A Work in Progress

Abstract: This essay explores how application of deliberative democracy and conflict resolution theories expose how the town hall meetings conducted on debates about recent American healthcare reform were poorly managed The article suggests that for truly deliberative democracy to work, theory and practice must take account of three forms of discourse: rational-principled, bargaining-trading (utilitarian) and affective, emotional and value-based discourses The article explores deliberative democracy and conflict resolution theory (eg, Habermas, Hampshire), contrasts these to more nuanced analyses of what is possible in political deliberation processes (Elster, Sen, and Fishkin, among others) and describes how the town hall meetings were poorly executed in practice Suggestions are offered for both theoretical issues (how are professional process experts, eg facilitators of consensus building fora to be justified in democratic theory) and practical variations on process themes, in the hopes that well structured and variable processes might still be designed and utilized for facilitating productive participation in the polity and more "consensus-seeking," and better and more flexible policy outcomes, even in highly contested political issues

The Public Option in Housing Finance

Abstract: The U.S. housing finance system presents a conundrum for the scholar of regulation because it defies description using the traditional regulatory vocabulary of command-and-control, taxation, subsidies, cap-and-trade permits, and litigation. Instead, since the New Deal, the housing finance market has been regulated primarily by government participation in the market through a panoply of institutions. The government’s participation in the market has shaped the nature of the products offered in the market. We term this form of regulation “public option” regulation.This Article presents a case study of this “public option” as a regulatory mode. It explains the public option’s rise as a governmental gap-filling response to market failures. The public option, however, took on a life of its own as the federal government undertook financial innovations that the private market had eschewed, in particular the development of the “American mortgage” — a long-term, fixed-rate fully amortizing mortgage. These innovations were trend-setting and set the tone for entire housing finance market, serving as functional regulation.The public option was never understood as a regulatory system due to its ad hoc nature. As a result, its integrity was not protected. Key parts of the system were privatized without a substitution of alternative regulatory measures. The consequence was a return to the very market failures that led to the public option in the first place, followed by another round of ad hoc public options in housing finance. This history suggests that an awareness of the public option regulatory mode in housing finance is in fact critical to its long-term success, and that the public option is a well- pedigreed regulatory mode that has historically been associated with stable housing finance markets.