Volume 87, Issue 2

Articles

The Separation and Overlap of War and Military Powers Prof. Saikrishna Bangalore Prakash
87 Texas L. Rev. 299 (2008)

When the nation goes to war, does the Congress or the President hold ultimate authority? Saikrishna Prakash considers the constitutional allocation of war and military powers between the Congressional and Executive Branches, and argues that the Constitution grants Congress complete control over all war and military matters.  Prakash suggests that the traditional focus of war-powers scholarship on the decision to go to war has distorted our perception of the Constitution's allocation of military powers.

This distorted view has led to some confusion, as revealed by the seemingly basic separation of powers questions aroused by recent events.  There is an ongoing debate over whether Congress can regulate the treatment of prisoners—as, for example, in Guantanamo Bay—or whether this matter is left entirely to the President's discretion.  Some claim that Congress can order a military withdrawal from Iraq, while others argue that Congress lacks this power.  Making arguments sounding in text, structure, and history, Prakash offers a theory that can shed light on these war-powers debates.

Prakash draws on English and American history at the time of the Constitution's drafting to determine the most accurate interpretation of the war and military powers clauses.   The English statutes and practices that were the precursors of our constitutional provisions on military power show that England could have multiple "commanders in chief" at a time, all of them subordinate to the Crown.  A review of American military actions during the Revolutionary War and in succeeding decades reveals that Congress held sweeping powers over war and military affairs.  Contrary to the modern view that the Commander in Chief enjoys exclusive operational authority, early Congresses systematically regulated military operations, such as where warships might sail in wartime, how soldiers would march and fire arms, the number of cannons in military forts, and the appropriate enemy targets.  Early commanders in chief consistently deferred to Congress in these matters.  A particularly relevant finding is that early Congresses regulated the treatment of enemy prisoners.  Congress sometimes passed laws directing the President to see to the safekeeping of prisoners, and at other times required the President to implement the "law of retaliation" and torture or kill enemy prisoners in retaliation for mistreatment of American prisoners.

Concerning war and military powers, the Constitution establishes some areas of separation and other areas of concurrent authority.  The powers to declare war, raise and fund the military, and establish a system of military justice rest exclusively with Congress.  In contrast, the President lacks any exclusive war or military powers.  Instead, military powers not granted exclusively to Congress are vested concurrently with the President and Congress, although when congressional statutes conflict with presidential orders in areas of concurrent authority, the Constitution dictates that the will of Congress must prevail.

Responses in See Also:

Response: Directing Military Operations
 
 Prof. Michael D. Ramsey

In this Comment to Professor Prakash’s article, Professor Ramsey disagrees with Prakash’s contention that the Constitution does not grant the President any exclusive military powers.
Intellectual Privacy Prof. Neil M. Richards
87 Texas L. Rev. 387 (2008)

Neil Richards argues that intellectual privacy—the protection of records of intellectual activities—is essential to the First Amendment values of free thought and expression.  While courts over the last century have construed the First Amendment to offer powerful protections for a wide array of public speech, they have given much less thought to protecting the mental processes that preceded the speech.  The dominant metaphors that have evolved in the First Amendment tradition—the marketplace of ideas and the town-hall meeting—are implicitly oriented toward public expression. 

To the extent that the First Amendment tradition has dealt with privacy at all, it has assumed it to be a conflicting and inferior value that has little place in free speech theory, as evidenced by the line of Supreme Court cases relying on the First Amendment to reject privacy-based challenges to the publication of personal information.  Richards argues that this tradition undervalues the freedom to develop ideas and beliefs away from the unwanted gaze or interference of others, but that the need for such freedom has become increasingly germane as electronic communications expose an ever-wider range of a person's mental processes to outside observation.

Richards offers a normative theory of intellectual privacy that explains the importance of legal protection for the activities of thinking, reading, and private discussion.  He argues that protection for intellectual privacy has four principal elements: the freedom of thought and belief; spatial privacy; the freedom of intellectual exploration; and confidentiality of communication.  Taken together, these categories provide an overlapping and mutually supporting system of protection for the incubation of new ideas in their formative stages. 

To illustrate the practical applications of a meaningful protection for intellectual privacy, Richards applies his theory to four public-policy disputes: the Justice Department's subpoenas of the search terms of millions of Internet users, the NSA's warrantless wiretaps of telephone calls of Americans speaking to persons overseas, the use of online profiling by private companies, and the introduction of evidence of a defendant's reading habits in a criminal trial.  Richards suggests that a greater attention to intellectual privacy could improve our resolution of these disputes in two ways.  First, intellectual privacy could inform constitutional doctrine about the First and possibly the Fourth Amendments.  Second, incorporating the protection of intellectual privacy into our nonconstitutional law, institutions, and social practices can help foster ideas in areas not traditionally governed by judge-made rulings on freedom of expression—as, for example, the threats to intellectual privacy posed by businesses.  Richards concludes that we must recognize and protect intellectual privacy if we are to retain our traditional commitments to free thought and inquiry in the face of the political, technological, and cultural challenges of the new century.

Responses in See Also:

Privacy and Fictitious Contracts
 
 Prof. David A. Anderson

In this comment to Intellectual Privacy by Neil Richards, Professor Anderson discusses the problems inherent with a binary legal classification system that treats information as either all private or all public in an age where communications technologies make the line between private and public information blurry at best.

The Where and Why of Intellectual Privacy
 
 Prof. Marc Jonathan Blitz

In this comment, Professor Blitz argues that professor Richards’ concept of Intellectual Privacy could benefit from a little less First Amendment theory in one area, and a little more in another.  In particular, Professor Blitz takes issue with how Professor Richards defines the activities that come within the scope of intellectual privacy protections, suggesting that this area should utilize less First Amendment theory. 

The Meaning of "Intellectual Privacy"
 
 Prof. Christopher Slobogin

In his comment to Intellectual Privacy by Neil Richards, Professor Slobogin praises Richards for his scholarship, but identifies two pragmatic problems with Richards’s argument. 

Book Reviews

What Consequences Do Ideas Have? Prof. Mark Tushnet
87 Texas L. Rev. 447 (2008)

Mark Tushnet describes Steven Teles's The Rise of the Conservative Legal Movement as "a case study of ideological challenge."  Teles addresses the attempt by conservative legal thinkers in the late-twentieth century to transform the institutions of academia and government that had been largely dominated by liberal thinkers during the mid-twentieth century.  Teles examines the development of conservative public interest law firms, the growth of the Federalist Society, and the embedding of law and economics within the legal academy.  Tushnet suggests that Teles's approach offers new insights into the institutions that affect the outcomes of ideological contests.

The book first addresses the rise of law and economics in the legal academy as an aspect of the conservative legal movement.  Teles notes, "Many conservatives, especially foundation patrons, saw in law and economics a powerful critique of state intervention in the economy, and a device for gaining a foothold in the world of elite law schools."  Tushnet suggests that the law and economics movement was more effective in the second goal, in that support for the movement from conservative foundations such as the Olin Foundation did help conservative scholars attain academic positions, particularly at Harvard University.  The influence of the movement as a critique of state economic intervention, however, waned as the level of sophistication of economic analysis of the law increased. "The better legal economists got as economists," writes Tushnet, "the less clear the conservative spin of law and economics became."  Thus, while the movement may have helped conservative scholars attain academic appointments, the movement itself has increasingly veered away from conservative ideology. 

Tushnet characterizes Teles's chapters on conservative public interest law firms as "the best work on the subject I know of."  Teles describes the development of these law firms in two stages.  In the first stage conservatives emulated the liberal public interest firms already in existence, which was generally unsuccessful because the conservative law firms were seen as representing the interests of the business community rather than the "public interest" more generally.  In the second and more successful stage, the conservative public interest law firms turned from businesses to libertarian-leaning individuals for support.  While the Institute for Justice, the most prominent of the conservative litigation groups, has won several lawsuits representing small businesspeople facing arbitrary licensing requirements, the movement has had little success in rolling back the post-New Deal regulatory apparatus that was its original target.  Tushnet suggests that the most significant litigation wins for the conservative movement have come from client-driven work of elite law firms—for example, in establishing constitutional limits on punitive damages, rather than from the ideology-driven work of the public interest law firms. 

The Federalist Society has been the most successful institution created by the conservative legal movement.  Teles focuses on its role as a network for moral support and job placement for conservative law students and lawyers.  Tushnet compares the role of the Federalist Society to that of Felix Frankfurter and his Happy Hot Dogs, who moved from law schools into the newly created administrative agencies of the New Deal.  Tushnet notes that the Federalist Society has ultimately been less influential than were the New Deal administrative lawyers, in that the New Deal lawyers created the administrative agencies in which many Federalist Society members now work.  While the Federalist Society has been successful in helping conservative lawyers attain positions of influence, those lawyers have not fundamentally changed the institutions of government.

Notes

The Military, Freedom of Speech, and the Internet: Preserving Operational Security and Servicemembers' Right of Free Speech Danley K. Cornyn
87 Texas L. Rev. 463 (2008)

Danley Cornyn tackles the ongoing struggle between the free speech rights of military personnel and the needs of the military to maintain security and to preserve order and discipline.  Traditionally, courts have deferred to the military on free speech issues, on the grounds that the military is a specialized society in which servicemembers are entitled to fewer speech rights than civilians.  Traditional rules, however, are being challenged as increased Internet access and online communications give military personnel new ways to communicate instantaneously and anonymously. 

In response to new threats to operational security (OPSEC) posed by the Internet, such as the disclosure of sensitive military information through blogs or e-mail, in April 2007, the military promulgated new operational security regulations that impose much greater restrictions on servicemember speech than ever before.  The regulations require servicemembers to consult with their unit OPSEC officer prior to posting anything in a public forum.  Public forums include: letters, articles for publication, e-mails, Web site postings, blog postings, discussions in Internet forums and message boards, and other discussion forums.  A violation of this regulation could result in court-martial or "administrative, disciplinary, contractual, or criminal action."

Cornyn argues that the new OPSEC regulations may overly restrict the speech of military personnel.  Whereas courts have traditionally drawn a distinction between the public and private speech of military personnel, it can be difficult to distinguish between public and private speech on the Internet.  A Facebook page, for example, could be considered either public or private depending on who is allowed to access it.  A servicemember who violated an OPSEC regulation in a speech that he thought was private may be punished more severely if the military deems the speech to have been public.  The OPSEC requirement of prior review will also deter anonymous speech.  While the U.S. Supreme Court has not ruled on whether military personnel have a right to anonymous speech, it did rule in McIntyre v. Ohio Elections Commission that a right to speak anonymously is protected under the First Amendment.  Restricting anonymous speech of military personnel could present particular problems when combined with the policy of "don't ask, don't tell," under which servicemembers are allowed to serve in the armed forces regardless of their sexual orientations, as long as the servicemembers remain silent about it.  If homosexual servicemembers are not able discuss their sexual orientation or express affection to loved ones anonymously, they may be denied all expression concerning this aspect of their lives.

Cornyn suggests that the military can resolve many of its security concerns about the speech of servicemembers through technological solutions such as e-mail filters, but that ultimately the military must address the issue at a more fundamental legal level.  She proposes that the Supreme Court give greater protection to servicemembers' free speech rights under the First Amendment.  First, the Court should abandon its deferential standard in favor of a balancing test, akin to the Court's approach in First Amendment cases involving government employees.  Second, the Court should recognize a right to anonymous speech in the military.
When is a Dog Really a Duck?: The True-Sale Problem in Securities Law Michael Gaddis
87 Texas L. Rev. 487 (2008)

Mike Gaddis tackles the perplexing problem of how to distinguish between sales and loans in the context of securitization transactions.  Recent innovations in structured finance have allowed some companies—most famously Enron—to label some transactions as sales on its balance sheet, while still retaining effective control over the transferred asset.  Such practices can allow a company to give the appearance of boosted sales and reduced liabilities when in fact little has changed.  Whether a company's securitization transactions are deemed to be sales or loans can have substantial consequences in bankruptcies, SEC investigations, and private securities-fraud litigation, and yet relatively little case law exists to suggest whether securitization transactions can properly be characterized as sales or as secured loans.  This state of confusion poses dilemmas both for companies that wish to avoid SEC enforcement actions and for investors wishing to ascertain the financial states of companies. 

Gaddis focuses primarily on the treatment of securitization transactions by the SEC, which has generally looked to generally accepted accounting principles ("GAAP") for treatment of true-sale accounting.  GAAP applies a three-part control test to determine whether a transaction is a true sale: (1) the transferred assets must be isolated from the transferor; (2) the transferee must be free to pledge or exchange the assets; and (3) the transferor must not maintain effective control of the assets through a unilateral right to repurchase the assets.  A company that reports a transaction as a sale in violation of the GAAP test may be subject to an SEC enforcement action for fraudulent disclosure, although the SEC may still pursue an action against a company that is in technical compliance with GAAP if the SEC deems the substantive characteristics and consequences of the transaction to be contrary to the company's characterization.  That is, the SEC may use GAAP as a sword, but companies may not use it as a shield.  In one enforcement action involving Doral Financial and FirstBank, the SEC found a substantive violation of GAAP on a recourse obligation although Doral was technically in compliance with GAAP.  Both defendants settled, and thus the issue was never addressed by a court.  Gaddis suggests that because defendants in such actions almost invariably settle, the SEC is able to use its enforcement powers to define its own substantive standards for true-sale accounting.

Although there is some judicial guidance on distinguishing sales and loans in the contexts of the Uniform Commercial Code and the Bankruptcy Code, no consensus has emerged.  At one end, courts have said that if the parties call a transaction a sale then it is a sale, while on the other end, some courts have held that no securitization transactions are sales if that characterization would put the assets beyond the reach of the transferor's bankruptcy estate.  Gaddis describes some statutory attempts to resolve the true-sale problem in securities law, but concludes that attempts to date have added little clarity.  In effect, a transaction is a sale if the parties say it is, unless the SEC or the courts say it is not.

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