In an effort to guard against crowding out, in my reviews of recent scholarship I do my best to keep an eye out for examples of particularly strong student (grad or law) work. This effort unearthed a student law review note, Keep it Secret, Keep it Safe: An Empirical Analysis of the State Secrets Doctrine, by Daniel Cassman and forthcoming in the Stanford Law Review. While the analyses are mainly descriptive, the data set is both interesting and useful and lends itself to tests of the 9/11 attacks' impact on the courts' implementation of the underexplored state secrets doctrine. An excerpted abstract follows.
"State secrets doctrine provides both an evidentiary privilege and a categorical bar on certain litigation that implicates national security concerns. The United States government has invoked the state secrets doctrine to insulate certain programs, including rendition and surveillance operations, from oversight by the courts. Despite a surge of interest in state secrets doctrine after September 11, few scholars have employed statistical analysis to analyze courts’ treatment of the issue. This Note employs a new data set containing over 300 state secrets cases to explore state secrets jurisprudence. I find that the number of assertions of the state secrets doctrine since September 11 has increased dramatically. Even so, in cases to which the government is a party, the distribution of courts’ rulings on those assertions is virtually unchanged. In litigation between private parties, however, courts have mostly avoided ruling on state secrets issues since September 11."