Blake Denton (Government of the United States of America - 11th Circuit) has posted While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause? (Catholic University Law Review, Vol. 58, No. 751, 2009) on SSRN. Here is the abstract:
This Article argues in favor of limiting the scope of the Recess Appointments Clause, but does so in a manner that does not imply that George Washington and his presidential successors have trampled upon the Constitution. Instead, it uses a "living Constitution" approach and concludes that in light of size, structure, and composition of the contemporary federal judiciary, the purposes underlying the Recess Appointments Clause's ratification are no longer met when the Clause is applied to vacancies in Article III Courts. Thus, this Article contends that the Recess Appointments Clause should no longer be construed to allow recess appointments to federal judicial vacancies.