ACSBlog

  • April 22, 2015

    by Caroline Cox

    In SalonMarcy Wheeler explains why new reforms governing surveillance are not likely to solve many problems. 
     
    Russell Berman reports for The Atlantic that after a five-and-a-half month wait, the Senate is ready to confirm Loretta Lynch as U.S. Attorney General. 
     
    At the Constitutional Accountability Center's Text & History BlogDavid H. Gans discusses the importance of the Equal Protection Clause in the same-sex marriage cases.
     
    Noah Feldman writes at Bloomberg View that the Supreme Court's decision on Tuesday that police cannot performa a cannot prolong a traffic stop to search for drugs with a trained canine illustrates a growing concern on the Supreme Court with police conduct. 
     
    At NPRNina Totenberg provides further coverage of the Supreme Court's Tuesday decision on canine drug searches during traffic stops.
  • April 21, 2015

    by Jeremy Leaming

    Sheryl Sandberg and Anne-Marie Slaughter have drawn much attention for their thoughts about the professional working lives of women.  But Sandberg and Slaughter have failed to recognize or willfully ignored the stations of the vast majority of working women – those women who do not have the luxury of “opting out” or “leaning in.”  The inadequacies of our workplace laws leave many working women behind and perpetually struggling to survive.

    American Constitution Society for Law and Policy (ACS) President Caroline Fredrickson, a former labor lawyer and a longtime leader in the legal progressive community, declares a powerful response to “leaning in,” or “opting out,” which dominate discussion of inequalities facing women in the workforce.

    The discussion of workplace equality for women now focuses almost exclusively on white-collar professionals.  This discussion needs broadening.

    Fredrickson’s compelling book, Under the Bus: How Working Women Are Being Run Over, tells the stories of many women, who do not have the protection of our laws or the ability to stand up to their employers’ often illegal demands.  Indeed, for too long many employers have ignored or been exempted from laws meant to protect workers against corporate malfeasance.  Fredrickson also notes the inadequacy of our laws is ingrained in a history riven with racial and gender biases.  Time after time, Fredrickson notes that historical progressive movements to improve the lives of working Americans have left women behind.  If our nation fails to embrace collective solutions to collective problems, inequality will continue to fester in America while democracy suffers.

  • April 21, 2015

    by Caroline Cox

    Jess Bravin reports in The Wall Street Journal that the Supreme Court has revived a challenge to North Carolina’s election map based on the argument that it “illegally concentrates black voters in a handful of districts.”

    Nina Totenberg profiles for NPR the “accidental activists” of the Supreme Court’s same-sex marriage arguments.

    In a new podcast at Slate, Dahlia Lithwick discusses the balance of political and psychological  motivations on the Supreme Court with Adam Liptak and Eric Segall.

    Leslie Griffin criticizes at Hamilton and Griffin on Rights the recent decision by Justice Samuel Alito to stay a lower court decision that refused to grant an exemption to Catholic officials from filling out a form saying they would not provide employees with contraceptive coverage.

    Matt Ford of The Atlantic explains how the death penalty is becoming less common and public support for the practice is on the decline.

  • April 20, 2015
    Guest Post

    by Sean M. Flynn, Associate Director, Program on Information Justice, and Intellectual Property Professorial Lecturer in Residence, American University Washington College of Law

    The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.”  The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future.  If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations.  (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).

    Here, I analyze Section 8’s promise using The Washington Post's “Fact or Fiction” Pinocchio scale.  For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.

  • April 20, 2015
    BookTalk
    Democracy in the Dark
    The Seduction of Government Secrecy
    By: 
    Frederick A. O. Schwarz, Jr.
    by Frederick A.O. Schwarz Jr., Chief Counsel of the Brennan Center
     
    Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness.  Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions.  It fosters illusions of grandeur.  Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
     
    Secrecy spawns more secrecy.  The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed.  If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts.  Moreover, secret is often conflated with true.
     
    Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief.  During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools.  Disclosure could also have led to more imaginative thinking about possible terrorist actions.  White House disclosure of the warnings might well have averted 9/11.