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.

Are Cross-Cultural Ethics Standards Possible or Desirable in International Arbitration?

Abstract: This essay (as a festschrift/melanges en l'honneur de Pierre Tercier, outgoing Chairman of the International Chamber of Commerce International Court of Arbitration and Professor at the University of Fribourg, Switzerland) argues that it is possible and desirable for such bodies as the ICC to promulgate and enforce ethics standards for use in international arbitration. Many international arbitral administrative tribunals (and the non-administrative International Bar Association) have discussed, drafted, and approved ethics standards on such topics as conflicts of interests, disclosures, timely performance, fees, ex parte communication, use of information, competence and jurisdictional issues, truthfulness and candor, due process, impartiality, confidentiality and transparency. This article suggests that the ICC should do so as well if it intends to retain prominence and legitimacy in the field of international commercial justice. Where more or less private processes have significant power in international dispute resolution, they should ensure fairness of process if these processes seek to continue to dominate the field of international dispute resolution (as compared to international litigation which is more or less public). Despite claims that cultural differences in legal systems, judicial and attorney practices, procedural and evidentiary rules, as well as nationally based ethical obligations, might prevent true cross-cultural ethical standards from being agreed to, this essay suggests such standards are possible and desirable. The core issues and contours of some international ethics standards are suggested.

Natural Law Ambiguities

Abstract: I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal "is" from the legal "ought" is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist "separation thesis," properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm's legality implies nothing about its morality. To reverse the classical natural lawyer's formulation of the issue, if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to understand that simple truth, we must understand that the legality of those norms implies nothing about their justice. Surely the lessons of positivism are more compelling, not less compelling, in the constitutional context where the capacity for self-delusion is so great, given the moralistic content and peculiar history of the Constitution, and where the stakes are highest: the consequences of merging constitutional fact with constitutional virtue are that we preclude even the logical possibility of fundamental criticism of our most foundational legal document. As I have argued at some length elsewhere, by merging in our own minds and in the public mind "constitutional morality" and critical morality, we have closed the door to meaningful criticism of the Constitution. The positivist's classic and even enlightened insistence on the "separation" of law and morality, if it would free up criticism of constitutional norms, could bring a welcome breath of fresh air. Today, "legal positivism" is widely taken to imply not just a conservative stance against legal change, but much worse: a refusal even to engage the issue, a denial of the coherence of legal criticism, and a denial of the relevance, in some sense, of legal reform. Given the historical grounding of positivism in an insistence on the need for legal criticism and legal reform, this modern belief about the reactionary consequences of legal positivism is strikingly peculiar: how did black become white? Where did this belief, so widely shared yet so wildly at odds with both the clear history and the apparent logic of legal positivism, come from?In these comments I want to supplement Fred Schauer's discussion and general defense of positivism with a brief response, in a sense, to Cover's quite chilling indictment. I will ultimately argue that whatever the (limited) force of Cover's indictment of the positivism of the abolitionist judges, that argument has no force against the positivism of the nonjudge constitutional critic. The critic, unlike the judge, is interested in competing theories of the relationship between law and morality, not as a guide to legal interpretation, but rather as a guide to clear-headed legal criticism. The constitutional critic, almost by definition, will rarely if ever be a judge. For such a critic, contrary to contemporary opinion and for the reasons stressed by the classical positivists, positivism does indeed facilitate the kind of constitutional criticism that natural law thinking obscures.

The Zealous Advocacy of Justice in a Less than Ideal Legal World

Abstract: In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire -- the moral quality of litigation would improve, as would the reputation of the bar, and likewise the justice of the law itself? But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of clients' ends, would confer meaning and moral purpose in a life presently constructed so as to be dangerously devoid of bothLawyers' professional lives are presently experienced as amoral, Simon argues, because they are amoral, but not for the reason often given by the members of the retiring bar themselves: That ungentlemanly, unprofessional, market-driven, young lawyers have forgotten their manners in pursuit of the legal buck, and have made life nasty and brutish for everyone Nor is the lawyer's amorality in any way tied to the nihilistic excrescences of contemporary theoretical understandings of law, as argued by some contemporary scholarship on the subject Rather, according to Simon, the amorality of lawyering stems directly from the stated ideals and aspirations of the profession itself The ideal of lawyering espoused by the profession, and memorialized by the various codes of ethics that govern it, strips the lawyer of responsibility for the moral quality of not only his clients' ends but also of his own actions taken on his clients' behalf -- and all on the dubious bet that by so doing, the system, in some mechanistic and formalistic manner, will almost miraculously crank out justice as the outcomeThe bet at the center of this "dominant view," as Simon dubs it, is not a good one -- justice is not going to be the miraculous product of a system in which none of the actors are required to pursue it The lawyer knows this full well, furthermore, and as a consequence both the lawyer and society bear a loss -- society by being saddled with a profession that permits and seemingly requires that individual lawyers aggressively pursue injustice and the lawyer by being saddled with a life-long and deeply hurtful existential alienation from his work To address the harm, we need, essentially, to reorient the profession by redefining its core moral identity The lawyer should indeed zealously advocate, but he should zealously advocate for justice, not for the satisfaction of the preferences of his particular clienteleSimon is not alone in this view, and he is not the first to address the apparent amorality of lawyering with an argument that what the bar must do is drastically restructure the lawyer's adversarial role, rather than explain it to a doubtful public who obstinately fail to appreciate its social value In fact, an entire school of criticism of adversarial ethics -- a criticism which Simon, following convention, calls the "role morality" or sometimes the "personal morality" critique -- has, over the last twenty years or so, sown seeds of doubt regarding the dominant view "Role morality" critics fault the traditional adversarial model for its tendency to limit the moral obligation of the lawyer to his client, and to minimize to almost nothing the ordinary moral obligations that the lawyer, but for his professional role, would owe to others

Teaching Legal Ethics through Role Playing

Abstract: A legal ethics course should instil in students a sense of personal responsibility and choice, and not merely inform them about formal rules. A problem-based curriculum, particularly one in which students must commit themselves personally and publicly to choices about how they would respond to conflicting pressures, is most likely to affect students' lives deeply. This article documents a simulation that the author has used for more than ten years. Law students are put in a role in which they come into possession of documents that would be very damaging to the client whom they are defending but which they arguably have a duty to reveal to the opposing party. Students may select any of several courses of action, including concealing the documents, disclosing them, destroying them, burying them in an 'avalanche' of other disclosed material, or asking a court for permission not to disclose. Students must reveal their choices in class. Then a drama unfolds as their choices lead to further difficulties which they must then resolve. The article includes the results of the author's survey of students in which they compared the effectiveness of learning this material by studying a case to learning it through the experiential problem.

Property as Institutions for Resources: Lessons from and for IP

Abstract: The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of debates about the appropriate extent of IP-rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that IP is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model — that in the postindustrial era of wealth production, the cosmology of property can no longer place terra firma at the center.This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the IP question. Property in intellectual goods resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for IP must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within IP ecologies; and the widespread use of licensing to delineate rights and obligations.