Secrecy and Democracy: Who Controls Information in the National Security State?

Abstract:

In national security matters, we give executive officials largely unchecked power to conceal from the public and even from Congress whatever information they choose to consider sensitive. We thus disconnect part of the essential machinery of democracy. Secrecy is nothing new, but in an era of transnational terrorism and expanded conceptions of what “national security” means, secrecy’s potential for eroding checks and balances is growing, even under a President ostensibly committed to greater openness in government. Democratic values and sound national security policy both suffer as a result.

This Article argues that information access is central to legitimate governance and that in matters involving classified information, we have needlessly constrained democratic processes, as a result of misdirected fears and misplaced reverence for executive expertise. Many capabilities necessary for sound secrecy decisions can be found only in Congress or the courts.

Discomfort with the executive information monopoly is increasingly evident in judicial decisions and legislative initiatives, but these acts of resistance remain halting and uneven. This Article attempts to give coherence to the often-tentative efforts by the other branches to claim a coordinate role. Building on congressional and judicial strengths, it develops an oversight framework more consonant with our constitutional design – an information democracy that combines robust national security safeguards with maximum feasible transparency and accountability.

Source: New York University Public Law and Legal Theory Working Papers

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“The Sole Right...Shall Return to the Authors”: Anglo-American Authors’ Reversion Rights From the Statute of Anne to Contemporary U.S. Copyright

Abstract:

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors.

The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.

Source: Columbia Public Law & Legal Theory Working Papers

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American Policing at a Crossroads

Abstract

As victimization rates have fallen, public preoccupation with policing and its crime control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This essay proposes an empirically grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective, at lower cost and without the negative side effects that currently hamper responses to terrorism and conventional crime. This essay describes the procedural justice model, explains its theoretical and empirical foundations, and discusses its policy implications, both for ordinary policing and for efforts to combat international terrorism.

Source: New York University Public Law and Legal Theory Working Papers

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Postsecondary Institutions and Price of Attendance in the United States

This First Look presents findings from the Integrated Postsecondary Education Data System (IPEDS) fall 2009 data collection, which included three survey components: Institutional Characteristics for the 2009-10 academic year, Completions covering the period July 1, 2008, through June 30, 2009. and data on 12-Month Enrollment for the 2008-09 academic year. These data were collected through the IPEDS web-based data collection system.

Source: National Center for Education Statistics

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NBER paper Does Culture Matter?

This paper reviews the literature on culture and economics, focusing primarily on the epidemiological approach. The epidemiological approach studies the variation in outcomes across different immigrant groups residing in the same country. Immigrants presumably differ in their cultures but share a common institutional and economic environment. This allows one to separate the effect of culture from the original economic and institutional environment. This approach has been used to study a variety of issues, including female labor force participation, fertility, labor market regulation, redistribution, growth, and financial development among others.

Source: National Bureau of Economic Research

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On Political Corruption

Abstract:
This Essay takes Citizens United as a launching point to revisit the central Buckley v. Valeo paradigm and examine what possibilities for reform remain to redress the vulnerabilities of democracy before the powers of the purse. Beginning with Buckley, the Court recognized that contributions had the unique potential to corrupt the political process. Revisiting the contribution process and the concept of corruption may yield a better handle on what should be the sources of concern in the financing of electoral campaigns. The inquiry begins with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning advocates could muster. Citizens United categorically rejected the rationale of Austin v. Michigan Chamber of Commerce that corruption ensues from the electoral distortions caused by differences in wealth. Citizens United also rejected any attempt to draw the lines of participation at persons versus corporations based upon similar access to wealth. But what is the remaining corruption concern?

The argument presented is that the corruption concern is really a concern with ensuring public – rather than private – outputs from the policy making process of government once in office, rather than when candidates stand for election. The argument rests heavily on the idea that the threat to democratic governance may come from the emergence of a “clientelist” relation between elected officials and those who seek to profit by relations to the state. This reorientation toward corruption in the outputs of policy making suggests effective solutions to address the financial vulnerabilities of democracy compatible with the Court’s strong constitutional stance in Citizens United. Specifically, the focus is on mechanisms to empower democratic participation in two ways, one by inducement, one by prohibition. Counterintuitively, the inducement looks to increasing the amount of contributions to campaigns to alleviate some of the concerns over political corruption, while the prohibition seeks to bar those in a position to distort public policy – such as government contractors – from providing support to candidates’ campaigns.

Source: New York University Public Law and Legal Theory Working Papers. Paper 216.
http://lsr.nellco.org/nyu_plltwp/216

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