Cyberattacks and the Covert Action Statute: Toward a Domestic Legal Framework for Offensive Cyberoperations

Cyberattacks are capable of penetrating and disabling vital national infrastructure, causing catastrophic economic harms, and approximating the effects of war, all from remote locations and without the use of conventional weapons. They can be nearly impossible to attribute definitively to their sources and require relatively few resources to launch. The United States is vulnerable to cyberattacks but also uniquely capable of carrying out cyberattacks of its own. To do so effectively, the United States requires a legal regime that is well suited to cyberattacks\u27 unique attributes and that preserves executive discretion while inducing the executive branch to coordinate with Congress. The trouble is that it is unclear which domestic legal framework should govern these attacks. The military and intelligence communities have disputed which of their respective legal regimes should control. The choice between these frameworks raises important issues about the policy benefits of the executive branch keeping Congress informed regarding cyberattacks that it conducts. It also raises constitutional questions about the branches\u27 respective roles in warmaking when the chosen course of conduct blurs the line between an intelligence operation and an act of war. This Note argues that, in the absence of an independent congressional authorization to use force against a target, the covert action statute, which demands written reports from the president to the congressional intelligence committees in advance of operations, should presumptively govern, and that the president should issue an executive order to that effect

Some Kind of Judge: Henry Friendly and the Law of Federal Courts

Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures in twentieth-century legal history. Dorsen not only provides a detailed study of Friendly’s life and career but he also uses the biography as a vehicle to explore the ways judges decide cases, the work of intermediate appellate courts, and Friendly’s particular influence across many legal fields (p. 2). Dorsen devotes much of the book to demonstrating that Friendly was a “great” judge along a number of dimensions: his intelligence, productivity, professional accomplishments, approach to legal questions, and influence on the law (pp. 2–3). Dorsen contends that the “influence of a circuit judge on the development of federal law depends largely on whether other federal judges view his work as worth emulating. On that criterion, as well as others, Friendly demands attention” (p. 2). Part I of this Notice briefly summarizes Dorsen’s work, recounting the key facts of Friendly’s life, his approach to judging, and those areas of the law most affected by Friendly’s ideas. It concludes that Dorsen has indeed demonstrated Friendly’s “greatness” to a certain degree. Part II explores Dorsen’s notion of influence on the law by examining Friendly’s impact on an area of law in which he was widely considered expert: federal jurisdiction. It expands Dorsen’s conception of influence to include not only the extent to which subsequent judges have emulated Friendly but also the extent to which Friendly was a clear and forceful expounder of ideas that shaped the terms of the debate on issues of federal jurisdiction, even if his vision did not ultimately carry the day. Moreover, the relevant evaluators of influence should include Congress and academics in addition to other judges

The effect on behavior and bone mineral density of individualized bone mineral density feedback and educational interventions in premenopausal women: a randomized controlled trial [NCT00273260]

BACKGROUND: Limited information is available on ways to influence osteoporosis risk in premenopausal women. This study tested four hypotheses regarding the effects of individualized bone density (BMD) feedback and different educational interventions on osteoporosis preventive behavior and BMD in pre-menopausal women, namely: that women are more likely to change calcium intake and physical activity if their BMD is low; that group education will be more efficacious at changing behavior than an information leaflet; that BMD feedback and group education have independent effects on behavior and BMD; and, that women who improve their physical activity or calcium intake will have a change in bone mass over 2 years that is better than those who do not alter their behavior. METHODS: We performed a 2-year randomized controlled trial of BMD feedback according to T-score and either an osteoporosis information leaflet or small group education in a population-based random sample of 470 healthy women aged 25–44 years (response rate 64%). Main outcome measures were dietary calcium intake, calcium supplement use, smoking behavior, physical activity, endurance fitness, lower limb strength and BMD. We used paired t-tests, one-way ANOVA and linear regression techniques for data analysis. RESULTS: Women who had feedback of low BMD had a greater increase in femoral neck BMD than those with normal BMD (1.6% p.a. vs. 0.7% p.a., p = 0.0001), but there was no difference in lumbar spine BMD change between these groups (0.1% p.a. vs. 0.08% p.a., p = 0.9). Both educational interventions had similar increases in femoral neck BMD (Leaflet = +1.0% p.a., Osteoporosis self-management course = + 1.3% p.a., p = 0.4). Femoral neck BMD change was only significantly associated with starting calcium supplements (1.3 % p.a, 95%CI +0.49, +2.17) and persistent self-reported change in physical activity levels (0.7% p.a., 95%CI +0.22, +1.22). CONCLUSION: Individualized BMD feedback combined with a minimal educational intervention is effective at increasing hip but not spine bone density in premenopausal women. The changes in behavior through which this was mediated are potentially important in the prevention of other diseases, thus measuring BMD at a young age may have substantial public health benefits, particularly if these changes are sustained

Some Kind of Judge: Henry Friendly and the Law of Federal Courts

Uberfans of the federal judiciary owe a lot to David Dorsen. His illuminating biography of Judge Henry Friendly is a fitting tribute to the contributions of a jurist that many consider to be among the finest judges never to sit on the U.S. Supreme Court. Judicial biography is a difficult genre to do well, and most authors choose to focus on Supreme Court justices. But Henry Friendly, Greatest Judge of His Era is an excellent source of information on Friendly’s life and, far more important, his views on the law and his relationships with some of the most fascinating figures in twentieth-century legal history. Dorsen not only provides a detailed study of Friendly’s life and career but he also uses the biography as a vehicle to explore the ways judges decide cases, the work of intermediate appellate courts, and Friendly’s particular influence across many legal fields (p. 2). Dorsen devotes much of the book to demonstrating that Friendly was a “great” judge along a number of dimensions: his intelligence, productivity, professional accomplishments, approach to legal questions, and influence on the law (pp. 2–3). Dorsen contends that the “influence of a circuit judge on the development of federal law depends largely on whether other federal judges view his work as worth emulating. On that criterion, as well as others, Friendly demands attention” (p. 2). Part I of this Notice briefly summarizes Dorsen’s work, recounting the key facts of Friendly’s life, his approach to judging, and those areas of the law most affected by Friendly’s ideas. It concludes that Dorsen has indeed demonstrated Friendly’s “greatness” to a certain degree. Part II explores Dorsen’s notion of influence on the law by examining Friendly’s impact on an area of law in which he was widely considered expert: federal jurisdiction. It expands Dorsen’s conception of influence to include not only the extent to which subsequent judges have emulated Friendly but also the extent to which Friendly was a clear and forceful expounder of ideas that shaped the terms of the debate on issues of federal jurisdiction, even if his vision did not ultimately carry the day. Moreover, the relevant evaluators of influence should include Congress and academics in addition to other judges

State (Un)Separated Powers and Commandeering

This Essay argues that the Court’s line between state judges and other state officials is not as clean as the case law suggests. Specifically, early state constitutions, as well as the British constitutional order prevailing before the U.S. Constitution was enacted—which did not separate powers as rigidly as the U.S. Constitution—combine to undermine the distinction. Taking this line of analysis seriously is not to deny that commandeering state executive or legislative officials raises federalism concerns. But paying more careful attention to early state conceptions of the separation of powers furthers federalist goals in another way: it engenders respect for the states’ freedom to deviate from the model of government the U.S. Constitution establishes for the federal government. More generally, and perhaps more importantly, this Essay follows in the tradition of other scholarship in emphasizing that one should not look only to the U.S. Constitution to understand the American constitutional tradition: the many state constitutions throughout American history are a part of that tradition also