These cases were the ultimate test of the very delicate balancing act at the heart of the European Convention on Human Rights.

BBC: Analysis: Extradition��s ultimate test of human rights

The Supreme Court laid out a balancing test of sorts: a basic need for executive confidentiality and candor, weighed against the public interests of congressional oversight, a criminal probe or prosecution.

CNN: Executive privilege: Legitimate claim or blocking move?

In other words, the Supreme Court laid out a balancing test of sorts: a basic need for executive confidentiality and candor, weighed against the public interests of congressional oversight, a criminal inquiry or prosecution.

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"If the rule is a 23-part balancing test, there's just going to be more litigation over all of these different aspects of the case, " Frank said.

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The measure Schumer is proposing says that in civil and criminal cases, "a judge would have to conduct a balancing test that would weigh the public interest in the free flow of information against the needs of law enforcement, " said Schumer spokesman Brian Fallon.

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He says that judge would "impose a balancing test" to determine which is more important, the government's desire to find the information or the robust freedom of the press.

WSJ: Schumer: Group of senators to look at media leaks