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.

The Anti-Empathic Turn

Abstract: Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy - the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit. Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges and justices.Somehow, however, this idea, viewed as so utterly mainstream for much of the last century’s worth of writing about judging, has, in the first decade of the twenty first century, become positively toxic, at least in the context of confirmation battles to the Supreme Court. What was once regarded as non-problematically central to good judging is now regarded as antithetical to it. No one challenged this claimed antipathy between empathy and judicial excellence. How did that happen?The anti-empathy turn currently being expressed or implicitly endorsed by very high ranking judges and justices in our understanding of judicial ideals, I will argue, is part of a larger shift in our paradigm of what good judging should be. That paradigm shift, I believe, is most clearly revealed, not in the Supreme Court confirmation battles that spill over on the front pages of newspapers, but in the pages of law review articles and in the law school classroom. Its consequence, I will argue, is sharply felt, not only or even primarily in the Supreme Court’s handling of the major social and constitutional issues of our time (which are better explained by political ideology), but rather, in scholarly treatment of the common law of contract and tort - areas of law that have for a couple of centuries now formed the core of our understanding of the judicial craft. The anti-empathic turn, I want to argue, is a part of a “paradigm shift” - with apologies for the cliche - in our ideals of good judging, and it's the perhaps unintended consequences of that paradigm shift that I want to explore.In the first section, I contrast the traditional and more contemporary approach to the unconscionability doctrine, using the iconic case Williams v. Walker-Thomas Furniture Company, and its scholarly treatment, as emblematic. In the second, I briefly explain how, in my view, this shift in the scholarly treatment of Williams v. Walker-Thomas (and related policing doctrines more generally) is reflective of and in some ways masks a larger shift in our guiding paradigm of adjudication - a shift away from a paradigm of moral judging to scientific judging. In the third and concluding section, I will offer some suggestions as to why this new paradigm has taken such a hold on our legal imaginations, and will briefly criticize it, both specifically with respect to the unconscionability doctrine, and more generally. I will urge a return to a more classical understanding - one which rested quite explicitly on the centrality not only of precedent (Blackstone, common law rules and so on) but also of moral passions and moral emotions to the work of judging, of which empathy and sympathy both are sizeable parts. Mostly, though, in this essay I just want to put in the record, so to speak, a piece of evidence for the claim that we have seemingly turned our back on a vision of moral judging that once embraced what Adam Smith dubbed the “moral sentiments” as essential to the work of judgment.

Mortgage Market Sensitivity to Bankruptcy Modification

Abstract: This paper examines the policy assumption underlying the special protection given to home mortgages in bankruptcy - namely that protecting lenders from losses in bankruptcy will encourage them to lend more and at lower rates, thus encouraging homeownership. This paper tests this policy assumption empirically using both current and historical mortgage market data. Current mortgage origination pricing, private mortgage insurance premiums, and secondary market pricing all indicate that mortgage markets are indifferent to bankruptcy modification risk. Historical mortgage pricing data from the 1980s and 1990s, when a particularly significant type of modification was permitted in almost half of federal judicial districts, also indicates that mortgage markets are largely indifferent to bankruptcy modification risk.

Statutory Interpretation in the Era of Oira

Abstract: In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which the agencies operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act is being transformed from a technology-based regime into a cost-benefit regime. I will argue that this transformation is illegal. Given the plain language of the statute, it would be illegal even if the Environmental Protection Agency - the agency charged with implementing the Act - had chosen this course. But EPA did not choose this course; OIRA did. OIRA's role in transforming EPA's understanding of the Act deprives EPA of any argument for deference under Chevron. OIRA is not charged with implementing the Clean Water Act; it is not an expert in the relevant fields; and its subterranean role in interpreting the Act undermines the accountability-based case for Chevron deference.

Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press

Abstract: The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect — more of us are able to participate in analyzing, debating, and perhaps even making the news — it has not succeeded in filling a role that print journalists have traditionally played well — keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business. This article proposes a new way to preference the press — one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster. This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting.

Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform

Abstract: The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms — from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child — the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims. But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families. Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault. This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework. This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse.