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 National Security Process and a Lawyer’s Duty: Remarks to the Senior Judge Advocate Symposium

Abstract: September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And both of these occurrences have emphasized the importance of viewing terrorism and cyber security as problems requiring effective vertical and not just horizontal process. Where most national security problems require coordination amongst federal agencies, homeland security is equally about coordination between federal, state, and local actors down to the level of first responder and the technician who spots the first medical anomaly. This vertical process will test the manner in which information is shared, resources allocated, and perhaps the level at which decisions of life and death, heretofore made by the President, are taken. Constitutional democracy also means that all decisions are made according to law. And that means that sound Executive process must incorporate timely and competent legal advice. In some cases, legal review is dictated by statute, as in the case of the Foreign Intelligence Surveillance Act (FISA), which requires the attorney general, or his designee, to approve requests for electronic surveillance or physical search before they are submitted to the FISA court. In other cases, the President has directed a specific process to ensure legal review in areas historically prone to peril, including certain intelligence activities. However, the majority of legal advice within the national security process is not directed, but is the product of practice, custom, and personal interchange between lawyer and client. That means that good process requires personal persuasion, presence, and value added, or the lawyer will find he or she is only contributing to decisions where legal review is mandated and then only as the last stop on the bus route. Constitutional democracy does not rest on such process.

Book Review of The Impossible State by Wael Hallaq

Abstract: In his book, The Impossible State, Wael Hallaq argues that the modern state is a bad fit for Muslims. This is so because the paradigm of “Islamic Governance”, developed through centuries of Islamic rule, and the modern state of the West are incompatibles if not altogether contradictory. The modern state, a European invention and an expression of the unique unfolding of Europe’s history, being premised on the deep penetration by the nation state of its population, a separation of powers between the executive, legislative and the judiciary that is always faltering, a separation between the is and the ought and the primacy of the political over everything else goes against the very grain of the Islamic non-state. The latter, by contrast according to Hallaq, is organized organically around the center of God’s sovereignty, Sharia being the moral code, the privileged expression of His Will. The translation of Sharia the moral code into law unfolds through the work of a learned juristic class that acts as mediator between the community, to which the jurists are organically connected, and God the sovereign. The world of Islam is moral by excellence that rejects the separation between fact and norm, for whom the “political” is confined to executive rulers of rotating dynasties that remain external to the embryonic tight embrace between jurists and community, whose role is to tax, organize armies, and regulate on the margins. In this universe, the “the care of the self” by the individual Muslim to fashion oneself as moral according to the dictates of the Sharia is the organizing principle of life, which is in contradistinction to the pitiable plight of the modern Western citizen whose subjectivity is fashioned by the state for its own selfish utilitarian ends. Pulling a Huntington-inreverse, Hallaq argues that not only the modern state thrown by Europe into Muslim shores by force a bad fit for Muslims, it is decidedly inferior to the counter model of Islamic governance. For Muslims, due to their “paradigm” of governance, had lived in peace and tranquility for centuries, spared the revolutions and tumults of Europe, as they had been historically free of the tyranny of monarchs, the cruelty of feudalism and the abuses of the church, all of which had forced their European compatriots to rebel!Hallaq ends by on the one hand inviting the West to recognize the radical-ness of the Muslim other and to give up its imposed universalisms. Indeed, he invites the West to open its heart and mind to the Islamic model, for who knows it might learn to be enlightened by it. On the other, he expresses skepticism of contemporary projects of Islamic reconstruction of law such as Islamic finance because the modern state is the background assumption and the locus for such projects. The problem according to Hallaq is that such attempts proceed to reconstruct law while leaving aside the reconstruction of the moral Muslim who Islamic governance assumed to be the ontological prior to law and litigation. Deprived of the moral context that lend them the quality “Islamic” such projects are either inauthentically so or are doomed to failure.

Creating Space for Silence in Law School Collaborations

Abstract: Law school programs are increasingly expanding collaborative experiences for their students. In many clinical programs, collaboration -- through team pairings and group work -- has been the norm, and gradually, collaborative work is being developed throughout the doctrinal law school curriculum. This trend fits within a broader societal emphasis on a collaborative model of working and learning. In both professional and educational settings, collaboration is viewed as critical to the success of ideas and products. Learning theory consistently identifies learning as being “inherently social” and best retained when engaged in with others. And, collaboration can substantially benefit the final work product and dramatically increase professional and educational satisfaction. However, when the collaborative process is not engaged in with intention and when not open to a variety of practices, collaboration can inhibit learning, productivity, and creativity. Research consistently finds that individuals who have an opportunity to consider problems on their own before collaborating outperform those whose ideas are generated exclusively in a group setting. Despite this, many collaborations value a team process that tends to isolate and ignore individuals who do not speak up quickly or easily, many with introverted personality styles, as well as others who do not fit within the “Extrovert Ideal.” The Extrovert Ideal rests on an assumption that an extrovert’s approach to group work, learning, and decision-making is the standard towards which all individuals should strive. This assumption may be particularly problematic for law students and lawyers who, as a group, include a higher percentage of introverts than the general population. This article considers whether law faculty are giving enough thought to the collaborative learning opportunities that are becoming a new normal in legal education and the legal profession. It considers how as currently executed, law school collaborations may not maximize student learning because they are grounded in a process that often interferes with the creation of ideas and the learning and environmental preferences because of rules that work best for extroverted students. This article concludes by offering concrete collaborative methods that allow space for intentional silence, and suggestions for helping students identify their own collaborative identity.

The Inequality of America's Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments

Abstract: We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she notes, that is "deeply affected by structures of race, gender, and class." With the number of death sentences and executions declining, Professor Goldfarb‘s article exposes the grim realities—miscarriages of justice, runaway arbitrariness, and persistent discrimination— that may ultimately lead to a judicial declaration that America‘s death penalty violates the U.S. Constitution‘s Eighth and Fourteenth Amendments.

The Puzzle of PDVSA Bond Prices

Abstract: Market reports in the summer of 2016 suggest that Venezuela is on the brink of default on upwards of $65 billion in debt. That debt comprises of bonds issued directly by the sovereign and those issued by the state-owned oil company PDVSA. Based on the bond contracts and other legal factors, it is not clear which of these two categories of bonds would fare better in the event of a restructuring. However, market observers are convinced — and we agree — that legal and contractual differences would likely impact the payouts on the bonds if Venezuela defaults. Using a comparison of recent weekly yields for roughly similar PDVSA and pure sovereign bonds, we attempt to gain some insights into the value investors assign to the legal differences between these two categories of bonds.