BookTalk

  • December 2, 2013
    BookTalk
    Emergency Presidential Power
    From the Drafting of the Constitution to the War on Terror
    By: 
    Chris Edelson

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

    In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

    The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.

  • October 15, 2013
    BookTalk
    Talent Wants to Be Free
    Why We Should Learn to Love Leaks, Raids, and Free Riding
    By: 
    Orly Lobel

    by Orly Lobel, Don Weckstein Professor of Labor and Employment Law, University of San Diego School of Law

    Under the radar, the monopolization of knowledge has expanded far beyond the bargain struck in Article I, Section 8 of the Constitution.  The enumerated powers of Congress permit the legislature to secure “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” for a limited time “to promote the Progress of Science and useful Art.” Thomas Jefferson described the act of delineating the appropriate scope of intellectual property rights as “drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding argues that Jefferson’s embarrassment extends beyond ownership over creations of the mind.  Moreover, it extends beyond the exercise of public authority contemplated by the Constitution, and into private conduct that can exacerbate the tension Jefferson identified. The embarrassment reveals itself in full force when we focus our attention on the ways we regulate human capital – people themselves, their skills and knowledge, the social connections and the creative capacities and inventive potential that flow through the market.

    Beyond our intellectual property wars, beyond the heated debates about the proper scope of patents and copyright, we’re confronting a surge in the monopolization of human potential for creativity and invention. The past decade has seen a wild expansion of business practices which attempt to control the mobility of talent and secrets. Companies big and small are using non-compete contracts, trade secret and non-disclosure agreements, prohibitions on poaching and soliciting of customers and co-workers, and the preclusion of employee ownership of patents and copyright. Take for example David Neelman, the founder of JetBlue, who was compelled to sit on imaginative ideas that would revolutionize the airline industry for five years because he had signed a non-compete with former employer Southwest. Or Nobel laureate and former Yale University professor, 87 year old John Fenn, who was sued by Yale over his patent on a method he had invented to evaluate new drugs, including the development of innovative AIDS medication in the mid-1990s. Ironically, these pervasive business practices frequently have a counter-productive effect not only on the public and employees, but also on businesses themselves.

    Talent Wants to Be Free looks at how we fight over knowledge and talent in every industry, profession, and region, and considers the right balances of secrecy & sharing, carrots & sticks and freedoms & controls. We have vigorous debates about immigration reform, the patent system, labor unions and health care – all of which bear on how people and organizations innovate – but when we look at our core strategies on human capital, we’re losing out on rich potential, creativity, and drive. When it comes to fighting the war over talent, most of us react emotionally and territorially. But these are exciting times: there is fascinating new evidence from economics, psychology, sociology, management and law that reveal a vision of how to better wage the talent wars. Through interdisciplinary empirical research and insight from the industry leaders, the book reveals that more frequently than we have come to believe, corporations, individuals, industries and regions benefit more when talent is not subject to monopoly control.

  • September 17, 2013
    BookTalk
    American Epic: Reading the U.S. Constitution
    By: 
    Garrett Epps

    by Garrett Epps, Professor of Law at the University of Baltimore and a legal correspondent for theatlantic.com. His book, American Epic: Reading the U.S. Constitution, was published last month by Oxford University Press. This post is part of our 2013 Constitution Day symposium.

    On Constitution Day, Americans gather to praise, celebrate, and revere our Constitution.  If we work in, or are involved with, any institution receiving federal funds, we can expect to hear speeches praising the greatness of the Founders and the wisdom of their handiwork.

    This Constitution Day, I suggest, we might do something harder in order to honor the Constitution.

    Read it. All of it. Back to front.

    Given that the document is not very long, reading the Constitution seems for Americans to be remarkably difficult. In part that’s because the Constitution’s mythological status makes the actual document all but invisible.

    During the Constitution’s bicentennial year, famous novelist E.L. Doctorow tackled its text for an essay in The Nation and all but screamed with frustration. “It is five thousand words long but reads like fifty thousand,” he lamented. Getting to the end is a problem even for a brilliant reader.

    The Constitution is 7,500 words long. The Amendments count too.

    Or consider the 112th House of Representatives, inaugurated in January 2011. The new Republican majority wanted to show the nation how much they respected the Constitution. So they voted to begin the new session by reading it aloud.

    Well, some of it. Turns out that, if you want to proclaim the “Founding Fathers” as the source of wisdom, there are parts of the Constitution that don’t read all that well.  Slavery, y’know.  So they took a blue pencil to the Constitution and read only the parts they liked.  When it comes to the Constitution, in fact, cherry-picking is as American as cherry pie. 

  • September 4, 2013
    BookTalk
    The Great Dissent
    How Oliver Wendell Holmes Changed His Mind -- and Changed the History of Free Speech in America
    By: 
    Thomas Healy

    by Thomas Healy, professor of law at Seton Hall Law School. A graduate of Columbia Law School, he clerked on the U.S. Court of Appeals for the Ninth Circuit and was a Supreme Court correspondent for The Baltimore Sun. He has written extensively about free speech, the Constitution and the federal courts.

    Over the past few months, the Obama administration’s effort to crack down on leakers has sparked a heated debate about the scope of First Amendment protection for those who shed light on government misconduct.  The details of this debate are new, but the conflict between national security and expressive liberty that underlies it has a long and stormy past.

    Nearly a century ago, the country was racked by another struggle over the limits of free speech, this one triggered by World War I and the rise of communism.  The outcome of that struggle – and its legacy today – is the subject of my new book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.

    In many ways, the pressures a hundred years ago were similar to the ones we face now.  The country was at war – although against a known and visible enemy, not a dispersed and shifting one.  Fears ran high, especially with regard to immigrants.  And many citizens were willing to give the government a free rein in dealing with the threats of the day.

    The results, of course, were not pretty.  One month after declaring war on Germany, Congress passed the Espionage Act of 1917, which made it a crime to do or say anything that might obstruct the draft or cause insubordination in the military.  A year later it approved the Sedition Act, which outlawed nearly any criticism of the government or the war.

    Nearly two thousand indictments were brought under these laws, many based on the thinnest of reeds.  One person was convicted for forwarding a chain letter that advocated an immediate peace; another for producing a movie that depicted British soldiers killing Americans during the Revolutionary War; and still another because she claimed that the war benefited capitalists.  The punishments were also severe.  At least two dozen people were sentenced to prison for 20 years, while many others received terms of five, 10 and 15 years.

    Although the Espionage and Sedition Acts ceased to have effect when the war ended, the persecution didn’t stop.  As the fear of German sympathizers was transformed into a fear of communism, the government found new methods to crack down on dissent.  Congress allocated large sums of money to investigate seditious activities, a Senate committee released a list of 62 activists who were said to be enemies of the state, and Attorney General A. Mitchell Palmer authorized a series of violent raids on the homes and meeting places of Russian immigrants.

  • July 24, 2013
    BookTalk
    Ghosts of Jim Crow
    Ending Racism in Post-Racial America
    By: 
    F. Michael Higginbotham

    by F. Michael Higginbotham, the Wilson H. Elkins Professor of Law, University of Baltimore School of Law

    Ghosts of Jim Crow: Ending Racism in Post-Racial America offers a prescription for moving America beyond its destructive race problem once and for all. While tremendous progress has been made, America remains unequal. Black unemployment, poverty, and homelessness are twice that of whites. Wealth accumulation for blacks is one twentieth of what it is for whites. Seventy-five percent of whites graduate from high school compared to less than 60 percent of blacks. While some blame personal choices for the discrepancies, the nation's deeply entrenched history of discrimination cannot be ignored. Emotional racial protests continuing across the country today prove that America is far from becoming "post-racial," to the chagrin of those proclaiming such when President Barack Obama was elected in 2008. 

    Ghosts of Jim Crow notes the three distinct eras, the nation’s founding, Reconstruction, and the civil rights movement, during which progress towards racial equality was marred by periods of resistance and retreat. Talk of building a new nation, on the principles of liberty and equality, in the latter 18th century, meant little to the millions of blacks forced into chattel slavery or to the free blacks who were racially profiled, presumed to be slaves, and denied due process rights simply because they were black (Hudginsv. Wright, 1806). The promise of emancipation, following the Civil War, was cut short when the Supreme Court adopted a “separate but equal” theory in Plessy v. Ferguson, at the end of the 1800s.  In the decades following, state and local governments' massive resistance to desegregation initiatives allowed "Jim Crow" segregation to flourish.  This remained true even after such behavior was ruled unconstitutional, in Brown v. Board of Education, in 1954. During the late 20th century, just as the civil rights movement was beginning to show results, through race-conscious affirmative action programs, the Supreme Court limited the government’s ability to redress all but the most blatant examples of discrimination. The 2013 State of Florida v. Zimmerman case, where a white neighborhood watch volunteer George Zimmerman was acquitted for shooting and killing the black teenager he allegedly profiled, Trayvon Martin, proves Ghosts continue to haunt black America. President Obama, who rarely comments on race, acknowledged as much in his recent comments.

    Subtle, yet pervasive, racism, through presumptions of black inferiority and embraces of black separation and white isolation continue to perpetuate the racial divide. There are two types of racism that prevent equality currently – structural racism and cultural racism. Structural racism involves policies, laws, and programs that embed inequality within society, and in so doing, reinforce cultural racism, those beliefs and actions that embrace racial hierarchy and isolation. Both structural and cultural racism must be ended in order to create equality. 

    Legislative and judicial responses to continuing racial inequality have been inadequate. The approach of simply eliminating government racial classifications is not sufficient. We must eliminate notions of superiority to stop the cyclical process whereby racist thoughts and actions lead to disparities.