Kathleen Clark - Profile on Academia.edu (original) (raw)
Papers by Kathleen Clark
Pace Law Review
We have now gathered three extraordinary thinkers to talk about the question of whether McDonnell... more We have now gathered three extraordinary thinkers to talk about the question of whether McDonnell 1 was essentially right or wrong. As lawyers, I suppose we have to take precedent as we find it, but I also think it's worth thinking for a bit about whether Congress should act to change the McDonnell rule, or whether the Supreme Court should reconsider it. What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution? I think McDonnell illustrates the difficulty here -it is a hard theoretical question to distinguish legitimate politics from illegitimate, corrupt behavior. I've asked these three panelists to think about that question. We have Professor
Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was ca... more Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of its agenda. As a result, the minority party no longer plays its traditional and vital role in Senate deliberation. These rules changes—along with increased party polarization— have diminished the Senate’s traditional role as a centrist institution, and the nation is suffering from its loss. The Senate’s record in 2017 illustrates the danger o...
SSRN Electronic Journal, 2016
Much of the scholarship on war powers looks back on whether U.S. military interventions were auth... more Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President's powers under Article II of the Constitution, and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This Article instead focuses on the process of dialogue between Congress and the President prior to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. response to Syrian President Assad's use of chemical weapons in 2013, and the rise of ISIS since 2014. By examining the specifics of how the political branches interact, we can assess whether the exercise of war powers is democratic and legitimate. We see that Congress and the President take part in substantive consultation and dialogue, and through that dialogue, Congress and the public become more informed about the interests at stake and the available options. The nation benefits from war powers dialogue between the two political branches.
Part I of this Article outlines the lawyer’s confidentiality obligation, which is both strict and... more Part I of this Article outlines the lawyer’s confidentiality obligation, which is both strict and broad. One of the exceptions to that obligation, however, is that clients can consent to disclosure. Thus, Part II examines in some depth the identity of the government lawyer’s client, and concludes that no single definition of a client applies to all government lawyers. Instead, one must examine the structure of authority within the particular government context where the lawyer works. Only with such a contextualized and structural analysis can one properly identify the government lawyer’s client and the extent of the lawyer’s authority to make decisions on behalf of that client. In addition, Part II notes that certain government lawyers are authorized to make decisions that are normally in the hands of clients. Part III explains the specific ways in which government lawyers’ confidentiality obligations differ from those of private sector lawyers. First, policy concerns and specific w...
J. Nat'l Sec. L. & Pol'y, 2005
. This memorandum and a number of others relating to the treatment of detainees have been publish... more . This memorandum and a number of others relating to the treatment of detainees have been published in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter Greenberg & Dratel]. 3. Guantánamo Memorandum, supra note 2, at 1-5. 4. Id. at 6.
This Article examines Congress's ability to consult its lawyers and other expert staff in conduct... more This Article examines Congress's ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch's insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial in connection with the Bush administration's warrantless surveillance program. Senate Intelligence Committee Vice Chair Jay Rockefeller noted the "profound oversight issues" implicated by the surveillance program and lamented the fact that he felt constrained not to consult the committee's staff, including its counsel. This Article puts this issue into the larger context of Congress's right to access national security-related information and discusses congressional mechanisms for protecting the confidentiality of that information. The Article also provides a comprehensive history of congressional disclosures of national security-related information. History suggests that the foremost danger to confidentiality lies with disclosure to members of Congress, not to staff. The Article identifies several constitutional arguments for Congress's right to share information with its lawyers and other expert staff, and explores ways to achieve this reform.
Law and Contemporary Problems, 1998
Capitol Hill used to be referred to as "the last plantation." 1 For the purposes of this symposiu... more Capitol Hill used to be referred to as "the last plantation." 1 For the purposes of this symposium, however, I believe that it is more useful to think of Capitol Hill not in terms of the antebellum South but rather in terms of medieval Europe. Congress consists of a series of fiefdoms. To understand any particular lawyer's role in Congress, it is important to know which fiefdom the lawyer is part of, and who is its head. This essay is an attempt to sketch out in a preliminary way the work of several different types of legislative lawyers. 3 It suggests that the role of lawyers
foia_memo2009-03-19.pdf. The Ashcroft memorandum pledged to defend all decisions not to disclose ... more foia_memo2009-03-19.pdf. The Ashcroft memorandum pledged to defend all decisions not to disclose "unless they lack a sound legal basis." Memorandum from Attorney Gen.
Indiana Law Review, Aug 21, 2019
Department of Justice has a long history of interpreting the Constitution's Foreign Emoluments Cl... more Department of Justice has a long history of interpreting the Constitution's Foreign Emoluments Clause (the "Clause") to protect the government against foreign influences. Over the course of a century and a half, the Department has issued more than fifty opinions interpreting the Clause to prohibit federal officials from accepting any benefit from foreign governments, even if the benefit is small in size, is part of an arms-length transaction, is funneled through an intermediary, or if the official's government responsibilities don't affect the foreign government. 1 Consistent with both the language and purpose of the Clause, the Department has been vigilant in safeguarding our Republic from potentially corrupt foreign government influence by preventing foreign governments from currying favor with federal officials. That strong and consistent record changed on June 9, 2017, when the Department responded to the first of three lawsuits (the "Emoluments Litigation"), all of which alleged that President Donald Trump violated the * Professor of Law, Washington University. 1. See infra app. I.
SSRN Electronic Journal, 2013
Is Discipline Different? An Essay on Choice of Law and Lawyer Conduct
In recent decades, the federal government has greatly expanded its use of contractors to perform ... more In recent decades, the federal government has greatly expanded its use of contractors to perform services and now purchases more than $260 billion in services every year. The government has increasingly turned to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees. While government employees are subject to strict ethical standards, most of these standards do not apply to contractor personnel. If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline, but also to criminal prosecution. In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences. In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest. The personal conflicts of interest of contractor personnel are largely unregulated. This Article discusses the disparity between the strict regulation of employees and the lax regulation of contractor personnel, explores possible explanations for the wide disparity in standards for these two groups, and suggests several research questions that should be answered prior to deciding whether to impose strict financial conflict standards on contractor personnel.
In recent decades, the federal government has greatly expanded its use of contractors to perform ... more In recent decades, the federal government has greatly expanded its use of contractors to perform services, and now purchases more than $260 billion in services every year. The government increasingly turns to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees. While an extensive array of ethics statutes and rules regulate government employees to ensure that they make decisions in the interest of the government rather than a private interest, only a few of these restrictions apply to contractor personnel. If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline but also to criminal prosecution. In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences. In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest. The personal conflicts of interest of contractor personnel are largely unregulated. In light of the fact that so much of the government's work is outsourced, the government needs to develop appropriate safeguards to ensure that the public interest is protected when contractors are doing the government's work. This paper describes the complex set of government ethics statutes and regulations, identifies the principles underlying those restrictions, and suggests ways that those principles can be applied to government contractor personnel.
The Lawful and the Just: Moral Implications of Unequal Access to Legal Services
ABSTRACT
Congressional Access to Intelligence Information: The Appearance of a Check on Executive Power
SSRN Electronic Journal, 2000
ABSTRACT
An Overview of Government Ethics Standards
SSRN Electronic Journal, 2000
ABSTRACT
T his conference will focus on two related topics concerning lawyers in government. First, the co... more T his conference will focus on two related topics concerning lawyers in government. First, the conference will seek to define and address the high priority regulatory and cultural reforms regarding the ethics of prosecutors. Second, the conference will discuss the ethical duties and limitations of government lawyers other than prosecutors who advise or litigate on behalf of public officials or public agencies. "This will be our seventh legal ethics conference at Hofstra Law, but this is the first time the conference has focused on the legal ethics of lawyers in government. The public and the profession have increasingly focused on issues of government lawyers' ethics over the past few years. The conference brings together speakers that have either written about these issues as judges or professors or lived through them as lawyers. The combination, will generate an intelligent and informed discussion that is intended to produce real changes and solutions."
Direct and indirect access to intelligence information: lessons in legislative oversight from the United States and Canada
Secrecy, National Security and the Vindication of Constitutional Law, 2013
Buying Voice: Financial Rewards for Whistleblowing Lawyers
SSRN Electronic Journal, 2000
Pace Law Review
We have now gathered three extraordinary thinkers to talk about the question of whether McDonnell... more We have now gathered three extraordinary thinkers to talk about the question of whether McDonnell 1 was essentially right or wrong. As lawyers, I suppose we have to take precedent as we find it, but I also think it's worth thinking for a bit about whether Congress should act to change the McDonnell rule, or whether the Supreme Court should reconsider it. What would be an alternative or a better way, if there is one, to approach the question of public corruption prosecution? I think McDonnell illustrates the difficulty here -it is a hard theoretical question to distinguish legitimate politics from illegitimate, corrupt behavior. I've asked these three panelists to think about that question. We have Professor
Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was ca... more Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of its agenda. As a result, the minority party no longer plays its traditional and vital role in Senate deliberation. These rules changes—along with increased party polarization— have diminished the Senate’s traditional role as a centrist institution, and the nation is suffering from its loss. The Senate’s record in 2017 illustrates the danger o...
SSRN Electronic Journal, 2016
Much of the scholarship on war powers looks back on whether U.S. military interventions were auth... more Much of the scholarship on war powers looks back on whether U.S. military interventions were authorized, examining the President's powers under Article II of the Constitution, and congressional enactments. That legal question is important, but it does not capture the interactive nature of the dynamic between Congress and the President. This Article instead focuses on the process of dialogue between Congress and the President prior to the exercise of war powers. We examine in detail how that dialogue operates in two recent episodes: the U.S. response to Syrian President Assad's use of chemical weapons in 2013, and the rise of ISIS since 2014. By examining the specifics of how the political branches interact, we can assess whether the exercise of war powers is democratic and legitimate. We see that Congress and the President take part in substantive consultation and dialogue, and through that dialogue, Congress and the public become more informed about the interests at stake and the available options. The nation benefits from war powers dialogue between the two political branches.
Part I of this Article outlines the lawyer’s confidentiality obligation, which is both strict and... more Part I of this Article outlines the lawyer’s confidentiality obligation, which is both strict and broad. One of the exceptions to that obligation, however, is that clients can consent to disclosure. Thus, Part II examines in some depth the identity of the government lawyer’s client, and concludes that no single definition of a client applies to all government lawyers. Instead, one must examine the structure of authority within the particular government context where the lawyer works. Only with such a contextualized and structural analysis can one properly identify the government lawyer’s client and the extent of the lawyer’s authority to make decisions on behalf of that client. In addition, Part II notes that certain government lawyers are authorized to make decisions that are normally in the hands of clients. Part III explains the specific ways in which government lawyers’ confidentiality obligations differ from those of private sector lawyers. First, policy concerns and specific w...
J. Nat'l Sec. L. & Pol'y, 2005
. This memorandum and a number of others relating to the treatment of detainees have been publish... more . This memorandum and a number of others relating to the treatment of detainees have been published in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter Greenberg & Dratel]. 3. Guantánamo Memorandum, supra note 2, at 1-5. 4. Id. at 6.
This Article examines Congress's ability to consult its lawyers and other expert staff in conduct... more This Article examines Congress's ability to consult its lawyers and other expert staff in conducting oversight. For decades, congressional leaders have acquiesced in the executive branch's insistence that certain intelligence information not be shared with congressional staffers, even those staffers who have high-level security clearances. As a result, Congress has been hobbled in its ability to understand and analyze key executive branch programs. This policy became particularly controversial in connection with the Bush administration's warrantless surveillance program. Senate Intelligence Committee Vice Chair Jay Rockefeller noted the "profound oversight issues" implicated by the surveillance program and lamented the fact that he felt constrained not to consult the committee's staff, including its counsel. This Article puts this issue into the larger context of Congress's right to access national security-related information and discusses congressional mechanisms for protecting the confidentiality of that information. The Article also provides a comprehensive history of congressional disclosures of national security-related information. History suggests that the foremost danger to confidentiality lies with disclosure to members of Congress, not to staff. The Article identifies several constitutional arguments for Congress's right to share information with its lawyers and other expert staff, and explores ways to achieve this reform.
Law and Contemporary Problems, 1998
Capitol Hill used to be referred to as "the last plantation." 1 For the purposes of this symposiu... more Capitol Hill used to be referred to as "the last plantation." 1 For the purposes of this symposium, however, I believe that it is more useful to think of Capitol Hill not in terms of the antebellum South but rather in terms of medieval Europe. Congress consists of a series of fiefdoms. To understand any particular lawyer's role in Congress, it is important to know which fiefdom the lawyer is part of, and who is its head. This essay is an attempt to sketch out in a preliminary way the work of several different types of legislative lawyers. 3 It suggests that the role of lawyers
foia_memo2009-03-19.pdf. The Ashcroft memorandum pledged to defend all decisions not to disclose ... more foia_memo2009-03-19.pdf. The Ashcroft memorandum pledged to defend all decisions not to disclose "unless they lack a sound legal basis." Memorandum from Attorney Gen.
Indiana Law Review, Aug 21, 2019
Department of Justice has a long history of interpreting the Constitution's Foreign Emoluments Cl... more Department of Justice has a long history of interpreting the Constitution's Foreign Emoluments Clause (the "Clause") to protect the government against foreign influences. Over the course of a century and a half, the Department has issued more than fifty opinions interpreting the Clause to prohibit federal officials from accepting any benefit from foreign governments, even if the benefit is small in size, is part of an arms-length transaction, is funneled through an intermediary, or if the official's government responsibilities don't affect the foreign government. 1 Consistent with both the language and purpose of the Clause, the Department has been vigilant in safeguarding our Republic from potentially corrupt foreign government influence by preventing foreign governments from currying favor with federal officials. That strong and consistent record changed on June 9, 2017, when the Department responded to the first of three lawsuits (the "Emoluments Litigation"), all of which alleged that President Donald Trump violated the * Professor of Law, Washington University. 1. See infra app. I.
SSRN Electronic Journal, 2013
Is Discipline Different? An Essay on Choice of Law and Lawyer Conduct
In recent decades, the federal government has greatly expanded its use of contractors to perform ... more In recent decades, the federal government has greatly expanded its use of contractors to perform services and now purchases more than $260 billion in services every year. The government has increasingly turned to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees. While government employees are subject to strict ethical standards, most of these standards do not apply to contractor personnel. If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline, but also to criminal prosecution. In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences. In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest. The personal conflicts of interest of contractor personnel are largely unregulated. This Article discusses the disparity between the strict regulation of employees and the lax regulation of contractor personnel, explores possible explanations for the wide disparity in standards for these two groups, and suggests several research questions that should be answered prior to deciding whether to impose strict financial conflict standards on contractor personnel.
In recent decades, the federal government has greatly expanded its use of contractors to perform ... more In recent decades, the federal government has greatly expanded its use of contractors to perform services, and now purchases more than $260 billion in services every year. The government increasingly turns to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees. While an extensive array of ethics statutes and rules regulate government employees to ensure that they make decisions in the interest of the government rather than a private interest, only a few of these restrictions apply to contractor personnel. If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline but also to criminal prosecution. In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences. In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest. The personal conflicts of interest of contractor personnel are largely unregulated. In light of the fact that so much of the government's work is outsourced, the government needs to develop appropriate safeguards to ensure that the public interest is protected when contractors are doing the government's work. This paper describes the complex set of government ethics statutes and regulations, identifies the principles underlying those restrictions, and suggests ways that those principles can be applied to government contractor personnel.
The Lawful and the Just: Moral Implications of Unequal Access to Legal Services
ABSTRACT
Congressional Access to Intelligence Information: The Appearance of a Check on Executive Power
SSRN Electronic Journal, 2000
ABSTRACT
An Overview of Government Ethics Standards
SSRN Electronic Journal, 2000
ABSTRACT
T his conference will focus on two related topics concerning lawyers in government. First, the co... more T his conference will focus on two related topics concerning lawyers in government. First, the conference will seek to define and address the high priority regulatory and cultural reforms regarding the ethics of prosecutors. Second, the conference will discuss the ethical duties and limitations of government lawyers other than prosecutors who advise or litigate on behalf of public officials or public agencies. "This will be our seventh legal ethics conference at Hofstra Law, but this is the first time the conference has focused on the legal ethics of lawyers in government. The public and the profession have increasingly focused on issues of government lawyers' ethics over the past few years. The conference brings together speakers that have either written about these issues as judges or professors or lived through them as lawyers. The combination, will generate an intelligent and informed discussion that is intended to produce real changes and solutions."
Direct and indirect access to intelligence information: lessons in legislative oversight from the United States and Canada
Secrecy, National Security and the Vindication of Constitutional Law, 2013
Buying Voice: Financial Rewards for Whistleblowing Lawyers
SSRN Electronic Journal, 2000