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The Rogue Private Company and National Defense Emergencies
No full textThis Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the increasingly important national security domain of space and its tendency to have its own agenda as exemplified by its actions in Ukraine.
Second, the executive branch is the best equipped branch to handle a potential emergency threat that comes from a powerful private company that controls national security technology. However, there is a constitutional tension between the needs of expanding the president\u27s power to act in an emergency and maintaining a constitutional separation of powers that prevents the president from turning into a dictator and abusing emergency powers to trample on individual rights. With an eye to both history and current events, this Note addresses the constitutional tension by suggesting Congress expand the president\u27s emergency powers with careful statutory language to limit the scope of these emergency powers.
Specifically, this Note proposes that Congress add statutory language to the existing International Emergency Economic Powers Act (IEEPA). This proposal presents a solution to how Congress should plan for the specific yet dangerous situation when a private company with critical technology threatens the national security of the country. The proposed language aims to authorize the president to act against a rogue private company for the interest of national security, while placing tight limits on this authorization
Judge–Scholar Collaboration and the Second Amendment
No full textLegal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.
We raise several explanations for the distinctive scholarly role in Second Amendment jurisprudence, including the Amendment’s unique aspects as well as the role of legal movements in facilitating the Amendment’s development. Faced with a lack of judicial precedent on both the right to keep and bear arms and originalism-in-practice, law review articles often can be more helpful than past opinions. Beyond scholarship’s utility in a new area of law, we suggest that a related phenomenon—the gun rights and conservative legal movements’ trifold success at facilitating the rise of the individual Second Amendment right, popularizing originalism as a methodology, and elevating originalist judges to the bench—is an important part of the story. For a half century, organizations focused on achieving both a robust right to bear arms and a conservative vision of the Constitution have become more prominent and have closely associated with both scholars and judges. If, in the usual telling, judges look askance at scholarship, this specific area of law might present an exception since it has been a joint project from the beginning.
The Article concludes that the judge–scholar collaboration that has characterized Second Amendment case law is likely to continue. Moreover, it could have ramifications far beyond the right to keep and bear arms, including for other rights that may be on the cusp of transformation and for other legal movements seeking to emulate the strategies that ushered in modern Second Amendment law
An Organizational Theory of Corporate Law
No full textCorporate law is in a moment of vibrant and contentious discussions about potential reforms. As firms exit Delaware, passive investment predominates, private equity expands, and public markets decline, corporate law faces a growing set of challenges that threaten its stability and efficacy. At the same time, the world faces pressing crises, including climate change, social and economic inequalities, and threats to democracy, though corporate law scholars typically consider these crises to be outside corporate law’s remit.
In this Article, we argue that to understand and address the multidimensional crises that face both corporate law and society, we must address shortcomings in corporate law doctrine. We show how modern corporate law, shaped by neoclassical economic theories, provides an incomplete picture of the firm, and we propose an expanded theoretical perspective that draws from organization theory, a field long dedicated to understanding the complexities of the firm. This updated perspective demonstrates how firms actually consist of multiple constituents, including workers, the environment, and shareholders, who invest different forms of capital in the firm: labor capital, natural capital, and financial capital. It further shows that modern corporate law entrenches problematic power imbalances, privileging boards and insider shareholders over workers, the environment, and minority shareholders. Moreover, building on organization theory, we explain how corporate law fundamentally shapes and constrains firm behavior, leading these entrenched power imbalances to generate far-reaching negative consequences.
To address these shortcomings, we propose redesigning board representation, fiduciary duties, and executive compensation to empower workers, the environment, and minority shareholders in relation to boards and insider shareholders. Integrating the organizational and economic perspectives can help address problematic power imbalances and ultimately provide a more effective corporate law framework to govern firms and serve society
The Future of AI Regulation in Drug Development: A Comparative Analysis
No full textAs artificial intelligence (AI) transforms drug development, regulatory frameworks are evolving to oversee its implementation, particularly at the US Food and Drug Administration (FDA) and the European Medicines Agency (EMA). This paper makes three contributions to understanding emerging regulatory approaches. First, we offer a comparative analysis of how these agencies have responded to AI-driven advances, incorporating new US executive orders and the European Union (EU)’s AI Act. Second, we propose a novel analytical framework to understand regulatory divergence: the FDA’s flexible, dialog-driven model contrasts with the EMA’s structured, risk-tiered approach, reflecting broader institutional and political-economic differences. While the former encourages innovation via individualized assessment, it can create uncertainty about general expectations; by contrast, the EMA’s clearer requirements may slow early-stage AI adoption but provide more predictable paths to market. Third, we examine whether AI applications—spanning target identification, generative chemistry, and clinical trial ‘digital twins’—are mature enough for standardized regulation, particularly amid shifting US policies and the EU’s structured oversight regime. Our analysis reveals patterns of convergence on risk-based principles but persistent transatlantic implementation differences, compounded by diminished US engagement in international cooperation. We conclude that heightened regulatory uncertainty in the USA under a new administration’s ‘America First’ stance and more stable, formalized rules in Europe both pose opportunities and challenges to AI-driven innovation in drug development
By Scalpel or Chainsaw: The Status of Pre-Bruen Case Law in the Lower Courts
Full text linkThe Second Amendment is in a state of flux. After the U.S. Supreme Court decided District of Columbia v. Heller, the lower federal courts coalesced around a means-end scrutiny test to judge the constitutionality of gun control laws. But enter New York State Rifle & Pistol Association v. Bruen. The analysis now centers around a test that focuses on text, history, and tradition. Courts have a new test with few guidelines about how to apply it.
Given the lack of guidance, courts have struggled to answer a key question: What pre-Bruen case law is still valid? Utilizing the undocumented immigrant prohibitor, 18 U.S.C. § 922(g)(5), this Note answers that question. Before Bruen, eight federal courts of appeals had the opportunity to address the constitutionality of § 922(g)(5), and all of them upheld the statute using three different methods. After Bruen, some courts have treated each method differently, demonstrating the particularity with which they analyze Bruen and its implications—what this Note calls the “scalpel approach.” Others have abrogated all pre-Bruen precedent, thus starting the Second Amendment analysis anew—the “chainsaw approach.” In the end, this Note argues that the scalpel approach better reflects core judicial values like uniformity and institutional legitimacy and thus is the correct path for courts applying Bruen to take
On Valuing Community Environmental Management: Revenues, Costs Avoided, Economic Impacts, and Amenities
No full textThe Judicial Administrative Power
Full text linkArticle III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.
This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and considers the role the activities play for the modern federal judiciary. When judges participate in judicial administration, they are ordinarily performing one of three actions: they are rulemaking, they are managing, and they are communicating. These categories are imperfect. But they provide a useful backdrop against which to demonstrate the federal judiciary’s considerable administrative power, which ranges across an array of domains and affects the private litigants who come before the federal courts, the rights of the judges and judicial employees who run those courts, and the public more generally.
Based on these observations, we argue that the judicial administrative power has profound consequences that carry us far beyond baseline questions of whether or to what extent judicial administration facilitates or improves federal adjudication. Judicial administration upends core notions of what makes the judiciary the judiciary. By freeing the judiciary from the constraints of an individual case or controversy, judicial administration shuffles the means through which certain rights-related problems reach the federal judiciary, empowers the judiciary to proactively solve problems of its own choosing, and alters the considerations viewed as appropriate for judges to weigh when their decisions affect people’s rights. And, from the perspective of the coordinate branches, the judicial administrative power similarly unsettles traditional notions of the role of the judiciary in interbranch decision-making. Judicial administration facilitates, aggregates, and channels judicial expertise, putting it to use throughout the whole of our government and making the judiciary a more forceful advocate for its own interests. Viewed through a separation of powers lens, judicial administration blurs the lines between legislative, administrative, and adjudicatory forms of governance and works to the detriment of certain higher-level values like democratic accountability, transparency, and the rule of law.
We conclude with a set of proposed reforms that would respond to these challenges by treating the judicial administrative power as administrative first and judicial second—and not the other way around. First, Congress should emulate the institutional design of the Sentencing Commission and assign certain judicial administrative responsibilities to new independent agencies. Second, generally applicable good governance provisions—like the Freedom of Information Act and some Administrative Procedure Act requirements—should be extended to at least some extent to a variety of judicial administrative acts. Finally, Congress should reduce the Chief Justice’s singularly powerful role in judicial administration by reassigning many of the Chief Justice’s administrative duties to a more diverse group of Article III judges and judicial stakeholder