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Constitutional Catastrophe: The NDAA vs. the Bill of Rights

The summer 2012 edition of the Public Interest Law Reporter includes a feature article (available as a downloadable PDF file) drawn from my keynote at the Loyola University School of Law symposium I addressed that spring. The piece is somewhat unique among those I've written in how far it ranges, covering issues including indefinite detention, arbitrary assassination, torture, executive secrecy, free speech, animal rights and environmental activism, campaign finance, legal realism and the role of courts, access to justice, and the role of grassroots mobilization (and particularly law students) in constructing public policy.

With respect to the constitutional crisis that has come to define my legal career (in contrast to my academic research agenda, which remains more in the realm of distributive justice, antitrust principles, and law & economics), I see this piece as more or less my opus.

Here's a quote just to whet your whistle:

Legal realism is essentially the perspective that the law is not necessarily reflected in the contorted justifications that judges reach in order to decide the cases before them, nor in the theories constructed by law professors to lend coherence to an incoherent body of case law. Legal realism recognizes that the law includes whatever potential litigants, or government agencies, are able to get away with -- which is to say: legal realism acknowledges that the law includes, for instance, acts by an executive branch that no court ever overseas, like torture, or systematic and pervasive dragnet spying by the National Security Agency.


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