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The National Security Consequences of the Major Questions Doctrine
Get PDFThe rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.
In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national-security-related conflicts—wars of territorial conquest, terrorism, or nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and re-cent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.
The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between “foreign” and “domestic,” with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges—particularly lower court judges—will be put in the position of second-guessing executive branch decisionmaking on precisely those questions—economic foreign policy questions of deep economic and political significance—on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system
Side Letter Governance
Get PDFA standard feature of the private equity industry, “side letters” are confidential agreements between the sponsor and individual investors that give the latter special rights, beyond those that apply to other investors in the private equity fund. Yet side letters have become a flashpoint for prominent critics of the industry, who argue that they allow private equity sponsors to benefit their favored investors at the expense of smaller, less sophisticated ones. Others have argued that, to the contrary, side letters are merely an efficient means of price discrimination—charging different prices to different investors, according to their willingness to pay—a practice that is common and well accepted in other industries.
We find fault with both views. We provide a novel empirical analysis of side letters, which disproves some of the most common claims about their content. Specifically, we code the terms of each side letter in a hand-collected sample from thirty years of buyout funds. Contrary to the conventional wisdom, we find that side letters very rarely grant fee discounts to investors or otherwise reallocate the fund economics among investors. Instead, side letters are mostly designed to accommodate a fund investor’s regulatory and tax concerns. The view shared by both critics and proponents—that side letters are primarily used to treat investors differentially—is largely mistaken.
Side letters remain problematic, but for very different reasons than those raised by critics. We show that side letters have grown substantially in both length and complexity over time. They impose significant costs and delay on private equity capital-raising, and they potentially impinge on funds’ operations and investments in unexpected ways. Over time, they have prompted an inefficient arms race among investors, leading to ever longer negotiations and more complex contractual networks for private equity funds, with little benefit for investors or sponsors. Using qualitative interviews with key participants in the industry, we explore the causes, including lawyer agency costs and other contracting frictions.
This Article makes three key contributions to the literature. First, using a novel, hand-collected and hand-coded dataset of side letters, it provides much-needed insight into one of the most guarded industries in the U.S. economy. Second, in contrast to the prevailing view in the contract modularity literature, this Article provides a cautionary tale regarding “over-modularity” and its costs. Finally, this Article offers several timely policy recommendations, arguing that, paradoxically, the current inefficient bargaining equilibrium is likely due to the relative lack of regulation of private equity funds. The industry would be better served with either regulation or coordinated industry action focused not on imposing uniform fund economics, but on ensuring more standardized documentation across investors and funds
Autonomy and Disciplinarity: Can Pseudoprofessional Speakers Select Their Own Constitutional Categorization?
Get PDFElectoral Reform and Democracy in Malaysia
No full textThe historic electoral defeat suffered in 2018 by Barisan Nasional (BN), which had ruled Malaysia for over half a century since independence, raised high expectations for electoral reform. Wide-ranging reform recommendations were indeed advanced but clearly these were complicated by the ethnic dimension and required a sustained effort to succeed. Prospects for their implementation were dimmed by the dramatic fall of the 22-month-old Pakatan Harapan government, reduced political activity during the Covid lockdown and in recent times the revived fortunes of BN-aligned political forces.
Taking all of these factors into account, this impressive study takes stock of the state of democracy in Malaysia by offering readers a deep but readily understandable analysis of an array of electoral reform issues.
Produced by a team of scholars ranging from very senior to promising younger academics, it also draws on the experiences of other countries and provides insights and lessons for countries wishing to undertake electoral reform after transitioning from authoritarianism.
The result is a resource that will interest the politically engaged as well as scholars of political process, a study that is both wide-ranging and focused, and a primer on electoral politics that will be of wide interest far beyond Malaysia.https://scholarship.law.duke.edu/faculty_books/1005/thumbnail.jp
The Battle for Your Brain: Defending the Right to Think Freely in the Age of Neurotechnology
No full textA new dawn of brain tracking and hacking is coming. Will you be prepared for what comes next?Imagine a world where your brain can be interrogated to learn your political beliefs, your thoughts can be used as evidence of a crime, and your own feelings can be held against you. A world where people who suffer from epilepsy receive alerts moments before a seizure, and the average person can peer into their own mind to eliminate painful memories or cure addictions.Neuroscience has already made all of this possible today, and neurotechnology will soon become the universal controller for all of our interactions with technology. This can benefit humanity immensely, but without safeguards, it can seriously threaten our fundamental human rights to privacy, freedom of thought, and self-determination.From one of the world\u27s foremost experts on the ethics of neuroscience, The Battle for Your Brain offers a path forward to navigate the complex legal and ethical dilemmas that will fundamentally impact our freedom to understand, shape, and define ourselves.https://scholarship.law.duke.edu/faculty_books/1004/thumbnail.jp
On the Basis of Childbirth: How the Federal Clerkship\u27s Lack of Parental Leave Fosters Gender Inequality
Get PDFThis Essay argues that the lack of paid parental leave for federal law clerks enables pregnancy discrimination, restricts women’s reproductive choice, and perpetuates gender inequality within the legal profession. Protections against pregnancy discrimination are hollow when clerks can be fired—or have clerkship offers rescinded—for requiring maternity leave, and the lack of leave disproportionately impacts female clerks by constraining their ability to pursue career and family simultaneously. The lack of leave also restricts (some) pregnant women’s reproductive choice by forcing them to choose between keeping their position or carrying their pregnancy to term. Such a state of affairs was intolerable in the past but has now become unconscionable in the devastating wake of Dobbs v. Jackson Women’s Health Organization. Many clerks will be serving in vast abortion deserts, cut off from medical care, and facing threats of criminal prosecution should they attempt to end their pregnancies to save their jobs. For these reasons, current congressional efforts to provide greater protections to term law clerks from discrimination and workplace misconduct, while an important step forward, must be supplemented to include guaranteed parental leave
Corporate Crime: An Introduction to the Law and its Enforcement
No full textCorporate Crime: An Introduction to the Law and Its Enforcement is a comprehensive and current textbook covering the field of corporate and white collar crime and government enforcement, with balanced focus on both liability rules and procedural essentials. This text is a complete, low-cost introduction to the field designed for upper-level law students and rising practitioners. It includes coverage of the law and theory of corporate criminal liability, fraud, business corruption, securities offenses and enforcement, obstruction crimes, constitutional criminal procedure in the white collar context, attorney regulation, plea bargaining and settlements, sentencing, and more. It provides a full picture of a fast-evolving field by combining essential statutes and court decisions with primary source documents drawn from litigation and enforcement actions.https://scholarship.law.duke.edu/faculty_books/1017/thumbnail.jp
Cryptocurrency, Legibility, and Taxation
Get PDFIn Jarrett v. United States, a taxpayer in Tennessee is arguing that staking cryptocurrency did not result in him earning “income” under federal income tax law. This case illustrates the fundamental challenge that cryptocurrency and blockchain technology present for tax law. Wealth creation in the crypto space is not readily legible to the state. This absence of legibility threatens tax law’s reliance on placing economic activities into categories to determine how they should be taxed. Furthermore, this case highlights the harms Congress and Treasury are risking by not taking action on cryptocurrency taxation. The uncertainty and lack of guidance on the appropriate taxation of cryptocurrency is opening the door for a critical juncture in tax law to be decided via strategic litigation. This threatens a jurisprudential evasion of the democratic and administrative process in a high-stakes moment for tax law