The Mathematics of Juries
While federal juries in civilian criminal cases must be unanimous, this is not the case in many states. It is also not the case for Courts Martial. Which raises an interesting question: should we...
View ArticleTechnology and Privacy
Brad Allenby has an interesting article at Slate that focuses on the recent national obsession with privacy issues resulting from the use of remotely piloted vehicles (“drones”). His main point is...
View ArticleMilitary Cyber-Operations and the Third Amendment to the US Constitution
The Third Amendment to the US Constitution provides that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be...
View ArticleDo We Need AUMF 2.0: Closing Arguments in tte Lawfare Debate
As we have previously reported, there has been a lively debate between folks affiliated with the Lawfare Blog about whether Congress ought to replace the 2001 Authorization for Use of Military Force...
View ArticlePolitics of Security in a Democracy
Bruce Schneier offers some thoughts on the political dynamics that govern security decisions in democracies and, in particular, why we so often seem to overreact: [T]he “fear preacher” wins,...
View ArticleCongress’ Treaty Powers: Historical Practice
In 1920, the U.S. Supreme Court in Missouri v. Holland held that the treaty power was not limited by the states’ rights limitations in the Tenth Amendment of the United States, and Congress was also...
View ArticlePapers of the Founding Fathers Now Online
On Thursday, the White House announced a great new resource for both students of history and constitutional lawyers: an online data base of documents from the Founding Fathers: What was the original...
View ArticleDetermining the Secrecy/Transparency Balance
The revelations about NSA has put renewed focus on a critical issue for a democratic nation–how do we balance legitimate national security need for secrecy with the need for the public to have enough...
View ArticleSecret History of the Bill of Rights
Michael Lind has a very interesting account of the development of the Bill of Rights. He notes that James Madison was a huge sceptic of the value of a Bill of Rights, who only pushed what he...
View ArticleWhat Will the DOMA Decision Mean For Service Members
Today’s decision striking down section three of the Defense of Marriage Act will affect gay and lesbian service members that are lawfully married in states that recognize same sex marriages. They will...
View ArticleQuestioning the Feres Doctrine
In a 1950 Supreme Court decision that interpreted the Federal Tort Claims Act (“FTCA”), the Court held that the FTCA bars any damages suit brought by servicemembers for torts that arise out of their...
View ArticlePandering or Slandering?
The decline of print media has coincided with a rapid expansion of online journalism, which, some would say, has created new questions regarding the limits of the freedom of expression. In a world...
View ArticleBenjamin Wittes and Daniel Byman on Targeting Americans Abroad
The Brookings Institute just released a new report by Benjamin Wittes and Daniel Byman entitled “Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad.” Here is how the authorts...
View ArticleDollars and Sense
The LA Times recently published an op-ed piece co-authored by U.S. Senators Feinstein and Durbin in which they renewed the call to close the detention facility at Guantanamo Bay. Their argument begins...
View ArticleSyria & Presidential Power
In a post earlier this week, we referred to an ongoing public discussion among international law scholars and members of the press about the legality of a U.S. intervention in Syria under international...
View ArticleA Balancing of State and Federal Law?
This past Tuesday (September 3, 2013) marked the first day for implementation of the Department of Defense policy changes allowing for military couples in same sex-marriages to file for the same...
View ArticleSupreme Court’s New Term
The Supreme Court’s October Term is beginning today, as scheduled, despite the ongoing government shutdown. As usual, there are a number of interesting previews of the new term from scholars,...
View ArticleIgnoring the Debt Ceiling
Can [May?] the President ignore the debt ceiling? The ABA Journal summarizes a New York Times article stating that three constitutional arguments provide a ‘yes’ answer: Is White House press secretary...
View ArticleThe Observer Effect: How Courts Affect National Security Decisions
Ashley Deeks has an interesting essay at the New Republic that argues that courts have much more influence on executive actions in national security matters than most observers understand: While courts...
View ArticleWhat’s Old is New Again: Madison on Federal Security Powers
Rikita Singh and Benjamin Wittes wrote an interesting piece at the New Republic this week, tracing the career of James Madison as it related to the tradeoff between providing national security and...
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