Document Type

Article

Publication Title

The George Washington Law Review

Volume

90

Publication Date

2022

Abstract

Lies are everywhere today. This scourge of misinformation raises difficult questions about how the law can and should respond to falsehoods. Legal discourse has traditionally focused on the law’s choice between penalizing and tolerating lying. But this traditional framing vastly oversimplifies the law’s actual and potential responses. Using trade secrets as a case study, this Article shows that the law sometimes accepts lies as a legitimate option for fulfilling legal requirements and may even require lies in increasingly common circumstances.

Commonly supposed legal and moral commitments against lying do not undermine this reality. To the contrary, the Article reveals that the interplay between lying and the law is much more descriptively and normatively complex than the contemporary discourse generally acknowledges. And it provides support for the law remaining neutral with respect to the normative valence of lying at a time when the main argument favoring neutrality and against an anti-lying perspective—that the remedy for false speech is more speech—has been called into question.

Moreover, in legitimizing certain lies, the law takes lying seriously as a dual-use technology, one that can be put to good ends as well as bad. This raises important practical questions about how to lie, legally and morally, with implications in areas ranging from privacy to procedure to professional responsibility. Making this shift, from questions of justification—of when and whether lying is permitted—to questions of practicality, is increasingly urgent in the shadow of mass surveillance. This Article does not answer all questions raised by law’s legitimization of lying, but by reframing the debate, it takes a critical step for clarifying the value of truth and the law’s role in promoting it.

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