Counteracting Ambition: Applying Corporate Compliance and Ethics to the Separation of Powers Concerns with Domestic Surveillance
Paul E. McGreal
University of Dayton School of Law
Southern Methodist University Law Review, Forthcoming
SIU School of Law Research Paper No. 2007-2
When it comes to domestic surveillance, even in the name of foreign intelligence, one constitutional challenge is to balance suspicion of and confidence in executive power - to leave the executive flexibility to meet changing threats, while ensuring that flexibility is not a pretext for abuse. To address this challenge, this Essay draws on expertise from an area of private law: the design, implementation, and operation of corporate compliance and ethics programs. A corporate compliance and ethics program consists of an organization's code of conduct, policies, and procedures that help achieve compliance with relevant laws as well as the organization's ethical standards. My thesis is that constitutional separation of powers analysis ought to incorporate lessons from corporate compliance and ethics programs. Over the last half century, businesses have accumulated vast expertise on checking and balancing the exercise of corporate power to protect shareholder value. The federal government ought to employ similar measures to protect our constitutional values. Corporate compliance and ethics best practices, then, should guide analysis of whether a given exercise of federal power incorporates adequate checks against abuse.
Number of Pages in PDF File: 45
Keywords: constitutional law, separation of powers, surveillance, national security, corporate compliance, business ethics, foreign intelligenceAccepted Paper Series
Date posted: August 16, 2007
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