• January 5, 2012
    The Odd Clauses
    Understanding the Constitution Through Ten of Its Most Curious Provisions
    Jay Wexler

    By Jay Wexler, a law professor at Boston University School of Law.

    When I first sat down to write The Odd Clauses — my new book about ten of the Constitution’s lesser known but still-pretty-important provisions — probably the hardest question I faced was which clauses to include. This, in turn, forced me to confront the question of what makes an odd clause odd? Are the oddest clauses those that nobody has ever heard of? Those that are historically anachronistic? Those that seem to deal with topics — post roads, perhaps? — that seem somehow beneath the dignity of a constitution?

    In the end, after many late-night boozy breathless conversations about the meaning of constitutional oddness (not really), I decided that, for me, what makes a clause odd is its specificity. The clauses that I find oddly compelling are those — like the Incompatibility Clause, which prohibits members of Congress from simultaneously holding executive office, or the Letters of Marque Clause, which gives Congress the power to authorize private ships to fight pirates on the government’s behalf  —that perform or illustrate key constitutional functions or values (separation of powers, for instance, or allocating power over foreign affairs) in very specific, and therefore (to me, anyway), quirky and odd ways.

    Under this definition, the Recess Appointments Clause of Article II, Section 2 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”) qualifies as odd, and I therefore included it as the subject of Chapter Three of my book (illustrating presidential powers). But at the same time, I realized that in many other ways the clause is not all that odd — people have generally heard about it, and it’s played an important role historically — and so it was no surprise that of all the clauses I discuss in the book, the Recess Appointments Clause is the first to make front page news. (By contrast, the notion that Senator Scott Brown might be violating the Incompatibility Clause by remaining in the National Guard has made front page news only in my own head.)

    For the past month or so, speculation ran rampant as to whether President Obama would use his recess appointment power to appoint Richard Cordray as the first head of the newly created Consumer Financial Protection Bureau. Republicans refused to confirm Cordray unless major changes to the law creating the new agency that are unappealing to the President were implemented, and so a recess appointment had been the President’s only option. To stop the President from taking this step, Republican senators decided to hold pro-forma sessions every three days since leaving for the holidays (Democrats, incidentally, did a similar thing at the end of the Bush Administration), relying on past governmental pronouncements that in order to qualify as a “recess,” the Senate must be on break for at least three days. 

    Originally, some speculated that President Obama might appoint Cordray during the imaginary moment on January 3 when the previous session of Congress ended and the new one began, following the example of Teddy Roosevelt, who pulled such a maneuver (to much criticism) back in 1903. Instead, Obama waited until January 4, when he exercised his more typical recess appointment power to install Cordray as the head of the new agency without Senate approval, on the theory that the Republicans’ pro-forma sessions do not render what otherwise would be a recess a recess, for purposes of the Constitution.

    Republicans are, of course, up in arms, threatening to challenge the President’s exercise of power in court. It is likely that a court — maybe even the Supreme Court — will one day weigh in on whether the President exceeded his power under the Recess Appointments Clause. Do pro-forma meetings count as real Senate sessions? 

  • December 8, 2011
    Practical Advice
    Current Issues in Constitutional Litigation
    A Context and Practice Casebook
    Sarah E. Ricks and Evelyn M. Tenenbaum

    By Sarah Ricks, a clinical professor of law at Rutgers School of Law and co-director of the Pro Bono Research Project.

    The New York Times recently declared, “American legal education is in crisis.” One cause, the editorial argued, is legal education’s traditional preference for theory over practice: “In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving ‘only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.’” Widely publicized calls to reform legal education have come from Best Practices; its blog; and other blogs, e.g., "Room for Debate – The Case Against Law School."

    One challenge for law teachers who want to integrate practical skills into doctrinal teaching is finding appropriate teaching materials.

    Evelyn Tenenbaum and I collaborated on a casebook responding to the call for a more practical approach to teaching law. Current Issues in Constitutional Litigation: A Context and Practice Casebook focuses on practical materials to teach the constitutional and statutory doctrines necessary to litigate constitutional claims arising under the 4th, 8th, and 14th Amendments, under the 1st Amendment in the prison context, and the 11th Amendment defense.

  • December 1, 2011
    Humanity's Law
    Ruti Teitel

    By Ruti Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. The following an excerpt from her new book, Humanity's Law, reprinted with permission from Oxford University Press, Inc. 

    We are living in a time of destabilizing political and legal changes. Often, it seems difficult to know whether we are at war or at peace; to determine what sort of conflict is at stake in a given situation; and, relatedly, to decide how best to address the conflict and to protect the persons, peoples, and/or states that it threatens. While both the end of polarized relations and the advent of globalization have their appeal, the renewed engagement has frequently seemed to mean that we see the possibility of intervention, but that hope is too often thwarted. Yet the closer we look, the more one can see that this situation has too frequently been viewed from a twentieth-century, state-centered perspective. Recently, there have been profound changes in the nature of interstate relations and conflict — all of which have pointed in the direction of the paradigm shift toward humanity law and, to some extent, away from interstate international law, that is identified here.

    After I finished my first book Transitional Justice, which explored legal and political responses to the transitions characterizing the end of the twentieth century, it became apparent that — despite lurches toward liberal democratic peace — conflict and violence not only were here to stay, but in some regard were ever more conspicuous, at least insofar as they were having a vivid impact on civilians. Indeed, it seemed that it was precisely during fragile transitions — that is, moments of weakness — that states were at their most vulnerable.

  • November 17, 2011
    Unpopular Privacy
    What Must We Hide?
    Anita L. Allen

    By Anita L. Allen, a law and philosophy professor at the University of Pennsylvania.

    An expanding library of books addresses the fate of privacy in the Era of Revelation. The central theme of my contribution to the genre sets it apart. My book’s focus is “unpopular” privacy, rather than the “popular” privacy people in the United States, Canada and Europe tend to want and expect government to secure. I define as “unpopular” privacy that is unwanted, disliked, not preferred, and resented by the people it is suppose to benefit or constrain.

    Testing the plausibility ofprivacy paternalism for liberal societies, I engage readers in a wide-ranging discussion of physical privacies of seclusion, isolation, and bodily exposure; and then informational privacies of confidentiality and data protection. Specifically, under the rubric of unwanted physical privacies, I discuss nude dancing, Muslim attire, public health quarantine and super max prison cells; under informational privacies, I take up whether “race” counts as sensitive data, the confidentiality obligations of lawyers, health care providers and other workers, electronic social networking, and online commerce and self-exposure.

    Should youthful Internet users be blocked from websites that collect sensitive personal information, for their own good? Should the law oblige us to forego since the giant consumer goods seller keeps track of our purchases and makes recommendations, or gmail because it pitches ads to us based on words that appear in our private messages to family and friends? Should adults with intimate secrets be banned from publishing them? Is there a possible justification for laws that ban Apps that monitor and store health information in the “cloud”?  

    Unpopular Privacy explores the normative underpinnings of laws that promote, require, and enforce physical and informational privacies. My book struggles to understand the values that prompt real and imagined unpopular privacy mandates.  Persuading libertarians and feminists with whom I identify to endorse regimes of imposed privacy is a significant intellectual challenge; both groups famously caution against the subordinating potential of compulsory privacies.

  • November 10, 2011
    The Detachment
    Barry Eisler

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.

    Writing The Detachment was a joy. How could it not be? I got to parachute my half-Japanese, half-American assassin John Rain into the corrupt universe I established in Fault Line and continued in Inside Out; partner him with characters from all my books; and pit him against a formidable and unfamiliar enemy plotting a coup in the United States. The result is some of the most intricate plotting, complex character behavior, and hard-core action I’ve ever done, all set against the biggest canvas I’ve ever painted: rolling terror attacks across America; presidential speeches and Oval Office brinksmanship; a game whose stakes will be measured not just in tens of thousands of lives at risk, but in the consequences to my characters’ psyches and souls.

    As much as the story depends for its thrills on character, action, and plot, though, it depends also on realism. Realism of setting (as always, I traveled to every location that appears in the book, including Tokyo, Los Angeles, Las Vegas, Vienna, and Washington, D.C.); realism of operator tools and tactics (everything I depict is in accordance with my CIA training and experience); and realism of action (I have a black belt in judo and consult with experts to make sure I’m nailing the nuances of the combat sequences). But the realism that interests me most in any thriller, especially my own, is that of the story’s circumstances.