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.

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.

The Quest for a Diverse Faculty: Theory and Practice

Abstract: For the past half century, universities and professional schools have been on a quest for the academic analog of the holy grail – a diverse faculty. In this article, I distinguish two types of diversity: social group diversity and viewpoint diversity, examine the argument made by the advocates of social group faculty diversity, and conclude that it is a strong prima facie argument for not only social group faculty diversity, but viewpoint faculty diversity as well. I then examine the method universities and professional schools currently employ to increase faculty diversity, show that there exists a superior method that, in theory, could cheaply and equitably produce the desired diversity in a single year, and explain why, at present, this method cannot be put into practice. I also examine what is required to attain faculty viewpoint diversity and show that, unlike social group diversity, faculty viewpoint diversity could be quickly achieved at relatively low cost. I conclude by suggesting that universities and professional schools are most likely to realize the benefits of faculty diversity by redirecting their efforts toward making the theoretically superior method of attaining faculty social group diversity practicable while simultaneously actively pursuing faculty viewpoint diversity. In doing so, I offer my analog of a map to the Holy Grail.

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.

In Praise of Ex Ante Regulation

Abstract: Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only after the invention is marketed. In a world of perfect information, fully rational actors, and complete credit or insurance markets, time would not matter. In the real world, though, the failure of one or more of these assumptions can change dramatically the impact of a regulatory option. For example, prior commentators have largely favored ex post incentives on the ground that government has much better information after the regulated activity is complete. This Article argues that the consensus in favor of ex post regulation overlooks some important considerations. Ex post regulation does provide useful additional information when regulated parties are heterogeneous, but also carries significant and sometimes prohibitive social cost, especially when externalities are produced by limited-liability firms. Further, drawing on results from mathematical simulations, I show that the costs of heterogeneity can be sharply reduced with even modest up-front information. I apply these insights to a series of examples, including the obesity crisis, the regulation of systemic risk in the banking sector, state fiscal failures, and the design of the IP system.

Non-Disputing Parties’ Rights in Investor-State Dispute Settlement: The Application of the Monetary Gold Principle

Abstract: Commercial arbitration is, by design, a private forum for the settlement of legal disputes between private parties. Confidentiality has been one of its overarching features and fundamental principles. Yet, the rise of the state as a commercial actor in the last century has led to an evolution in the arbitration process to accommodate and resolve disputes at the intersection between private and public law. Today, while investor-state dispute settlement (“ISDS”) is recognized as a system distinct from commercial arbitration, confidentiality still plays a role in the ISDS process. As a result, non-disputing parties (“NDPs”) affected by the outcome of ISDS are generally restricted from participating meaningfully in the process.