Recent uclalaw items

Sustaining ogaa: How Ojibwe Tribal Law and Custom Successfully Protects Walleye in Wisconsin

Fri, 30 Oct 2026 00:00:00 +0000

Ojibwe tribes in Wisconsin maintain a successful system of tribal law in the harvest and management of walleye, a species of considerable cultural importance. By doing so, they advance a right they had so feverishly protected in 19th-century treaties with the United States—the right to fish outside of reservation boundaries. Notwithstanding the deepest fears of the raucous protesters at 1980s northern Wisconsin boat landings, tribal overfishing and depletion of the walleye resource remain but a myth. Ogaa are safe. The Ojibwe people ensure it.

He Pā Harakek Tāmoremore Robbed of Motherhood

Fri, 30 Oct 2026 00:00:00 +0000

The lives of Indigenous women3 have been disproportionately impacted by the ongoing effects of colonization, and especially, of settler-colonial family structures that dismantle important family support networks for Indigenous women. An egregious and controversial example of this experience is the removal of Indigenous children. The removals serve to sever Tribal connections, and create trauma for Indigenous mothers, further marginalizing Indigenous women.

This thesis—focused on the impact removing Indigenous babies has on Indigenous mothers in a comparative, international Indigenous context—offers an opportunity to recognize removing Indigenous children as part of a wider gender issue for Indigenous women indicative of settler colonialism. This paper transposes the narrative from the effect removing children has on children, to the effect it has on mothers. Given the mental health effect it has on mothers, this paper argues ways to change legal systems to mitigate...

Mauna Kea Telescope and the Faux Expansion of the Public Trust Doctrine

Fri, 30 Oct 2026 00:00:00 +0000

In re Contested Case Hearing Re Conservation Dist. United States Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Sci. Reserve, a case decided in 2018 by the Hawaiʻi Supreme Court, found lands set aside in public trust for “native Hawaiians and the general public” to be lands set aside in trust for the people. Indigenous lands were taken from native Hawaiians, again, but this time, arguably, with judicial protection grounded in interpreted language of the Hawaiʻi Constitution.

The Moral Neglect of Negligence

Fri, 30 Oct 2026 00:00:00 +0000

The moral significance of negligence is regularly downplayed in the legal and philosophical literature. Many commentators appear to endorse two tenets about negligence that diminish its importance: first, that culpable negligence is substantially less significant than malice (as well as other intentionally inflicted wrongs) and second, that even when culpable, negligence is a rather petty moral wrong. The attitude conveyed is that, considered apart from its consequences, the wrong of negligence is real, but paltry.

By contrast, I regard culpable negligence as a more significant moral wrong, even when considered separately from its consequences. Concomitantly, I take non-negligence to be a significant, but often overlooked, moral virtue.

This paper sketches an account of what moral and political negligence are that stresses the significance of the agent’s motives. The paper canvasses many examples, including an extended discussion of whether Edward Snowden serves...

Vol. 10 Front Matter

Fri, 30 Oct 2026 00:00:00 +0000

Vol. 10 Front Matter

Paternalism, Unconscionability Doctrine, and Accommodation

Fri, 30 Oct 2026 00:00:00 +0000

The unconscionability doctrine in contract law enables a court to decline to enforce a contract whose terms are seriously one-sided, exploitative, or otherwise manifestly unfair. It is often criticized for being paternalist. The essay argues that the characterization of unconscionability doctrine as paternalist reflects common but misleading thought about paternalism and obscures more important issues about autonomy and social connection. The defense responds to another criticism: that unconscionability doctrine is an inappropriate, because economically inefficient, egalitarian tool. The final part discusses more interesting but neglected questions about the scope of accommodation necessary to support fully meaningful autonomous activity.

Indigenous Peoples of the Americas under the Canon Law of the Catholic and Orthodox Churches

Fri, 30 Oct 2026 00:00:00 +0000

In a secular society deeply rooted in Protestantism, such as the twenty-first-century United States, the idea of religious law often conjures up two images: (1) the Protestant Reformation and the successive Puritan flight to the New World to avoid the Church of England’s domination as the official religion of the state; or (2) the much more recent fears of Islamic Sharia law in the popular culture which led the voters of Oklahoma to pass a ban on “Sharia law” in 2010. However, the formal religious law of the two Apostolic Churches, the Roman Catholic Church and the Eastern Orthodox Churches also played an influential role in shaping the U.S. and the Americas into what they are today.It is particularly crucial to consider the impact of religious law on Indigenous people, who were and remain some of the last significant populations of unevangelized pagans and other non-Christian religious practitioners today.

The earliest interactions between American Indians and...

Paternalism, Unconscionability Doctrine, and Accommodation

Fri, 30 Oct 2026 00:00:00 +0000

Realizing Sovereignty: Envisioning Mutual Tribal Self-Determination Through Intertribal Cooperation and Confederalism

Fri, 30 Oct 2026 00:00:00 +0000

For centuries, Federal Indian policy has diminished tribal nations’ capacity to govern and weakened the ancient confederacies and alliances that once bound Indian Country together. Situated in this historical context, this Article asserts that legal sovereignty alone is not sufficient to enable the self-determination of Indigenous peoples. When the capacity of tribal nations is diminished relative to local, state, and federal power, traditions of Indigenous confederalism and coalition-building offer a solution for tribes to facilitate mutual sovereign capacity-building by reviving diplomatic networks of reciprocity and cooperation. This Article presents case studies that capture the successes of modern intertribal confederalism and coalition-building in economic, cultural, and legal or political contexts to demonstrate how tribal governments can benefit from engaging in further cooperation with neighboring tribes and those tribes with overlapping interests.

First Amendment Nonexistence on the Reservation – Implementing Freedom of Speech While Protecting Tribal Customs and Values

Fri, 30 Oct 2026 00:00:00 +0000

This paper looks briefly at the complex history of Native people in the United States to show how First Amendment rights do not apply to them.Then reviews how tribes have used their unique political status to self-govern federal reservation lands and tribal members, how tribal members face challenges when using what they believe to be First Amendment rights, and the responses by tribal councils and leaders.Because First Amendment rights are not applicable, “many free speech claims heard in tribal courts” are settled applying “federal law as persuasive authority to decide” cases.3 If tribes do not want U.S.courts’ precedent infringing upon tribal sovereignty, especially when constitutional protections are not inherent for tribal members on a reservation, tribes may want to review and possibly amend their tribal constitutions to reflect their customs and values unique to their tribe, not the United States; considering there are valid reasons tribes would want to limit or restrict...

Will Tax Reform Be Stable?

Thu, 29 Oct 2026 00:00:00 +0000

Stability is essential to any reform’s success, yet it is hardly guaranteed. This is particularly true in tax policy, where Congress persistently tinkers. This Article offers a novel approach to studying the stability of reform proposals in taxation. Any reform proposal can be decomposed into its constituent policies. I show that politically extreme policies are more likely to be reversed than are moderate ones. This basic intuition allows one to decompose any tax reform proposal into stable and unstable pieces.

Stability analysis has important implications for tax reform, potentially upending normative prescriptions. First, reform is often justified by appeals to efficiency and fairness. These claims must be appropriately discounted for instability. I demonstrate that some “efficient” or “fair” reforms can be quite inefficient or unfair due to their inherent instability. Second, the overall revenue effect of a proposal depends on its stability. Many so‐called “revenue‐neutral”...

Fee-Shifting in Bankruptcy

Thu, 29 Oct 2026 00:00:00 +0000

This Article examines attorney fee-shifting practices in bankruptcy from theoretical, historical, caselaw, statutory, empirical and comparative perspectives. Although the Supreme Court has insisted that the American Rule remains the applicable background principle in insolvency cases as else-where, insolvency law, for sound equitable and systemic reasons, has always rejected strict application of the American Rule. Fee-shifting among the parties has been, and remains, pervasive in bankruptcy cases. Against this background, the Supreme Court’s position has led to anomalous and unto-ward results in discrete areas where the American Rule continues to apply. This Article argues for a forthright rejection of what little remains of the American Rule in bankruptcy and proposes a modified English Rule giving bankruptcy courts discretion over the award of attorney’s fees to remedy the remaining problems caused by the Supreme Court’s unjustified assumption that the American Rule is the...

The Production Function of the Regulatory State: How Much Do Agency Budgets Matter?

Thu, 29 Oct 2026 00:00:00 +0000

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies’ budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science.

This article lays the groundwork for a new field of theoretical and empirical research, using what we call the “regulatory production function,” to understand the marginal effects of changes in regulatory agency budgets (both reductions and increases) on the levels of benefits they produce. Our proposed theoretical framework and empirical findings have important implications across the regulatory state on the relationship between agency funding...

Presidential Exit

Thu, 29 Oct 2026 00:00:00 +0000

The flow of executive orders, presidential memoranda, proclamations, determinations, executive agreements, national security directives, signing statements and other pronouncements emanating from the early days of every White House administration — what presidency scholar Phillip Cooper calls presidential direct actions — serves as a lightning rod for claims that the president is engaged in a “power grab.” Not infrequently, however, one president’s grab is about taking back another president’s grab. This certainly was the case during the year of the Trump administration, but President Trump is by no means unique in this regard, for many of his predecessors did the same to their predecessors. The reality is that the act of revoking executive orders has become one of the principal strategic political uses of direct actions by recent presidents.In this Article we probe this practice using a framework we developed in a previous article, Regulatory Exit, in which we examined the design...

Wealth Tax Add-Ons: An Alternative to Comprehensive Wealth Taxes

Thu, 29 Oct 2026 00:00:00 +0000

Comprehensive wealth taxes offer the possibility of reducing inequality while raising revenue. However, implementing comprehensive wealth taxes can be difficult, especially in emerging economies where administrative and political limitations are often substantial. This Article offers an alternative set of instruments – wealth tax add-ons – that countries can use to achieve many of the goals of a comprehensive wealth tax. Rather than trying to tax all wealth with a new tax instrument, add-ons would target and tax particular forms of wealth and be attached to existing tax systems. This Article focuses on three different types of add-ons: (1) a surtax on real property for the property tax system, (2) a minimum tax for closely-held businesses for the corporate tax system, and (3) a Netherlands-style presumptive tax for financial assets for the personal income tax system. Add-ons can improve the taxation of disparate forms of wealth in ways that are difficult to incorporate into...

Wrongful Life, Procreative Responsibility, and the Significance of Harm

Thu, 29 Oct 2026 00:00:00 +0000

Wrongful life suits may be justified even when children suffering significant forms of harm still enjoy an overall worthwhile life. Standard, comparative theories of harm are challenged. An alternative theory of harm is suggested. A distinction is advocated between the nonconsensual conferral of a lesser harm to avert a greater harm and the nonconsensual conferral of a lesser harm to bestow a greater benefit. The latter is morally problematic and may ground claims for compensation. Nonetheless, it is a reasonable characterization of much procreative activity. Related controversies concerning parental responsibility are discussed, including adoption, surrogacy, genetic "donation," and reproductive technology.

Beyond Zero-Sum Environmentalism

Thu, 29 Oct 2026 00:00:00 +0000

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment,” “markets versus regulation,” “enforcement versus incentives.” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with jobs or economic progress. In the essays below, the authors explore the meaning and the role of zero-sum environmentalism as a first step in moving beyond it.

Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb

Thu, 29 Oct 2026 00:00:00 +0000

Many scholars have invoked the term “disruptive innovation” when addressing the platform (sharing) economy, with sweeping claims about the dramatic changes this development promises for law, regulation, and the economy. The challenges raised by the platform economy surely are important, but we argue that recent scholarship focusing on the immediacy and novelty of the platform economy has been ahistorical, and has therefore missed the bigger picture about how to regulate it. History is full of technological and management advances that fundamentally disrupted business models for a brief period of time. When business innovation upends a pre-existing business model in a regulated industry, the result can be a disjunction between the structure of the regulatory system governing incumbent firms and the firms disrupting the industry: a policy disruption. Policy disruption can result from conscious choices by entrepreneurs to exploit legal loopholes or to challenge regulatory protections...

Wealth Tax Design: Lessons from Estate Tax Avoidance

Thu, 29 Oct 2026 00:00:00 +0000

Presidential candidates Elizabeth Warren and Bernie Sanders have both proposed ambitious new annual wealth taxes based on academic work by Emmanuel Saez and Gabriel Zucman. They project these proposals to raise trillions of dollars over the next ten years. Some critics challenge the Saez-Zucman approach to measuring the aggregate wealth of those subject to a wealth tax. Other critics including Larry Summers and Natasha Sarin have used data from estate tax returns and the relatively small amount of revenue the estate tax currently raises to question the revenue projections of these proposals. This comparison can be useful only if one thinks carefully about specific estate tax strategies and how these strategies translate to an annual wealth tax. This article engages in that exercise. When one takes a closer look at estate tax avoidance and how it maps onto an annual wealth tax, a much more complex narrative emerges.That narrative has four major themes. First, there are some estate...

Corporate Governance, Bankruptcy Waivers and Consolidation in Bankruptcy

Thu, 29 Oct 2026 00:00:00 +0000

Corporate law formalities that impede effective bankruptcy relief are properly overridden in bankruptcy. Those formalities generally count for little outside bankruptcy and should not hamstring a bankruptcy court’s ability to afford effective relief consistent with the underlying policies of the Code. Nevertheless, recent scholarship and caselaw in bankruptcy, reflecting a contract uber alles zeitgeist has given too much credence to both entity partitions that blink the reality of how firms actually operate and contractual barriers to voluntary bankruptcy relief baked into corporate charters. Bankruptcy law should refocus on honoring substance over form. In doing so, corporate formalities will properly yield to underlying substantive bankruptcy policy. The limited role of corporate formalities in the event of insolvency should be factored into market expectations surrounding asset securitization, including the frailty of both entity partitions within corporate groups and bargained-for...

The Pivotal Politics of Temporary Legislation

Thu, 29 Oct 2026 00:00:00 +0000

Temporary legislation — law that expires on a given date — is an increasingly important part of the policy landscape in areas as diverse as homeland security, gun control, and taxation. Whether temporary legislation is renewed (and just as importantly, whether sophisticated actors expect such legislation to be renewed) is key to understanding its behavioral effects and long-run policy implications. Before we can evaluate the desirability of any piece of temporary legislation, we must first understand the uncertainty surrounding its renewal. This Article fills a gap in the existing literature by providing a theoretical and empirical framework for exploring that uncertainty.

The Mass Tort Claimants' Bargain

Thu, 29 Oct 2026 00:00:00 +0000

This Article charts a path forward for the bankruptcy system to assume the function of implementing fair and efficient collective resolution of mass tort cases in the wake of recent controversies over third-party releases and solvent debtor mass tort chapter 11 cases. Drawing on lessons gleaned from bankruptcy courts’ forty years of experience in the field, I propose reforms that at once broaden access to bankruptcy’s collective resolution processes for mass tort defendants while addressing the fairness concerns of their victims. Properly constrained, bankruptcy has powerful tools to collectively resolve mass torts: global litigation stays, consolidation of federal and state actions; permanent channeling of filed lawsuits, unfiled present claims and future claims; nondebtor releases to resolve derivative and related mass-tort claims made against co-liable third-party defendants; and, most importantly, classification, solicitation and class-wide voting procedures that may be readily...

Are Progressive Tax Rates Progressive Policy?

Thu, 29 Oct 2026 00:00:00 +0000

Why do income tax systems across the world consistently feature progressive marginal rates? The existing literature tells a political story focusing on the top of the rate schedule and the preferences of the poor and middle class. According to this standard view, higher rates at the top result from the poor and middle class using the political process to “soak the rich.” However, this explanation is inconsistent with research showing that public policy is generally more responsive to the preferences of the rich. Explaining marginal rate progressivity as a universal (and exceptional) triumph of the poor and middle class rings hollow.

This Article resolves the tension in the extant literature by demonstrating how progressive marginal rates are consistent with the preferences of the rich. Marginal rate progressivity is the combination of two policies–higher rates at the top and lower rates at the bottom. This Article shifts the focus to the bottom of the rate schedule and...

Increasing Progressivity by Reforming the Taxation of Capital Income Testimony Before the Subcommittee on Select Revenue Measures

Thu, 29 Oct 2026 00:00:00 +0000

In my testimony, I will briefly discuss several features of the income and estate taxes that limit the revenue collected from the wealthiest Americans. I will then discuss some possible reforms for raising taxes on the wealthy and increasing the overall progressivity of the fiscal system. There are a few key takeaways. First, the income tax struggles to tax capital income effectively. Second, we can make that system more robust through several reforms: repealing stepped-up basis, shifting to mark-to-market for more assets, and increasing the capital gains rate. Third, these reforms work better in tandem. Finally, some options for reform are more effective than others given the legislative uncertainty about how long reforms will last.

Strategies for Zero Sum Challenges

Thu, 29 Oct 2026 00:00:00 +0000

People love to talk about the glossy world of “Win-Win Scenarios.” Battling climate change will also grow the renewables sector and create thousands of green jobs. Catch shares programs will increase the fishing community’s incomes and also conserve fisheries. There surely are plenty of examples of win-win scenarios in the environmental field, but it’s wishful thinking to assume that many, much less most, environmental conflicts can be solved with all parties better off. It is often the case that one or more parties feel trapped in a zero-sum game. This short essay, part of the Environmental Law Collaborative's project on Zero-Sum Environmentalism, sets out the three basic strategies that environmental law has developed to manage zero-sum challenges.

Introduction to the Symposium on Climate Change Localism

Thu, 29 Oct 2026 00:00:00 +0000

The sheer breadth, scale and rapidity of subnational climate efforts in the United States have been impressive. Politically and economically powerful states, influential cities, massive pension funds, leading companies and others have stepped up to push the country toward a more effective response to the varied threats of climate change. In many respects, the system isn’t supposed to work this way. Addressing an issue with such obvious international implications as climate change should be spearheaded by the federal government. Necessity remains the mother of invention, however, and we are witnessing an experiment in foreign affairs federalism in real time. This American Journal of International Law symposium explores the implications of subnational actors’ efforts to address climate change. The Introduction describes the contributions by Ann Carlson, Jean Galbraith, Dan Esty and Dena Adler, and Cinnamon Carlarne. The contributions of this symposium provide both hypotheses and...

Mineral Estate Conservation Easements: A New Policy Instrument to Address Hydraulic Fracturing and Resource Extraction

Thu, 29 Oct 2026 00:00:00 +0000

In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.

We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article assesses whether a MECE is compatible with current state conservation easement acts, whether it would qualify for a tax deduction, and legislative actions that would strengthen the status of MECEs.

Overall, we find that MECEs hold great potential as a private land use tool to restrict hydraulic fracturing in...

Quantifying Legislative Uncertainty: A Case Study in Tax Policy

Thu, 29 Oct 2026 00:00:00 +0000

Whether a legislature will or will not enact law is often uncertain. This Article offers an empirical model for quantifying that uncertainty, and it develops this argument in the context of federal income tax rates. Specifically, we estimate a model of legislator preferences on tax rates and show that the political process can be well understood in terms of the preferences of key legislators. We use our statistical model to quantify the uncertainty of tax rates and forecast the direction of likely rate changes in the future. This argument has several implications for policymaking and the analysis of legislative uncertainty more generally. First, quantifying legislative uncertainty offers insight into the behavioral effects of the law. How people respond to the law depends on their perception of the law’s future trajectory. Second, our analysis allows us to explore the stability of major legislative reform. Our methodology allows us to demonstrate that reforms are sometimes predictably...

Doing Equity in Bankruptcy

Thu, 29 Oct 2026 00:00:00 +0000

This Article argues that consistent with the Code’s text and policy, injunctions or other forms of equitable relief should be presumptively treated as “claims,” even if nonbankruptcy law does not permit the enjoined party to satisfy the injunction by the payment of money. This presumption, however, should be rebuttable. No categorical rule can determine when equitable remedies should be monetized and discharged. Consistent with a chancery tradition of flexibility and discretion in the employment of equitable remedies stretching back for centuries, however, a balancing approach can appropriately determine the availability of equitable relief. The Article identifies factors to be weighed in this balancing process. When the factors tilt against equitable relief then monetization and discharge is the correct result absent compelling countervailing nonbankruptcy policies.

Part I discusses the availability of equitable relief under nonbankruptcy law, including the tradition...

The Effects of Capital Gains Rate Uncertainty on Realization

Thu, 29 Oct 2026 00:00:00 +0000

Taxpayers should expect capital gains rates to fluctuate in light of frequent historical changes and the current divergence of rates preferred by Democrats and Republicans. This paper is the first to model the effect of such rate uncertainty on the realization incentives of asset holders and finds those effects to be potentially large. There are several implications. First, rate uncertainty may alleviate the lock-in effect of the realization rule when rates are low and exacerbate lock-in when rates are high. Second, there could be significant inaccuracies extrapolating the elasticity of capital gains realizations measured at one rate to another. Third, some policy solutions aimed at addressing distortions created by the realization rule may not work as well as expected.

The Distributional and Tax Planning Consequences of the Tax Cuts and Jobs Act Testimony before the U.S. House of Representatives Ways and Means Committee

Thu, 29 Oct 2026 00:00:00 +0000

The TCJA was the most significant overhaul of the tax system in over three decades. It is commendable that this committee is evaluating how this law affects the American public. We are fortunate to have the projections of the Joint Committee on Taxation and various think tanks, but the sheer amount of data can be overwhelming. The goal of my testimony is to crystallize that data into five major takeaways. I pair each takeaway with a figure that captures the point visually.Who received tax cuts and how much? Will that change over time? How are we as Americans going to pay for the deficits created by the TCJA? How does the new law make taxes easier to avoid? What can history tell us about how tax laws change after major legislation?

The Next Generation of Trade and Environment Conflicts: The Rise of Green Industrial Policy

Tue, 27 Oct 2026 00:00:00 +0000

A major shift is transforming the trade and environment field, triggered by governments’ rising use of industrial policies to spark nascent renewable energy industries and to restrict exports of certain minerals in the face of political economy constraints. While economically distorting, these policies do produce significant economic and environmental benefits. At the same time, they often violate World Trade Organization (WTO) rules, leading to increasingly harsh conflicts between trading partners.

This Article presents a comprehensive analysis of these emerging conflicts, arguing that they represent a sharp break from past trade and environment disputes. It examines the causes of the shift and the nature of the industrial policies at issue. The ascendance of these Next Generation conflicts transforms both the international and domestic political economies of trade litigation and environmental policy. It raises implications for the choice of forum for trade litigation,...

Regulatory Exit

Tue, 27 Oct 2026 00:00:00 +0000

Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental feature of regulatory design and should be explicitly considered at the time of program creation.

Part I starts from first principles and sets out the basic features of regulatory exit. It addresses the design challenges of exit strategies and how to measure success of exit. With these descriptive and normative foundations in place, Part II develops a framework that explains the...

Foreword: Making Sense of Information for Environmental Protection

Tue, 27 Oct 2026 00:00:00 +0000

Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual's or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with adopted rules, and the public needs information in order to accept the credibility and legitimacy of the regulatory regime. But governance also requires judgment regarding how to manage information itself - how to structure burdens of proof in light of goals such as public safety or promotion of economic growth, how to balance the...

The Most Important Current Research Questions in Urban Ecosystem Services

Tue, 27 Oct 2026 00:00:00 +0000

We tend to take nature’s ecological systems – or ecosystems – for granted, but they provide critically valuable services to society and to urban areas. They create a sense of place and recreational opportunities, contributing to quality of life by enhancing human physical and psychological health. This is particularly true for cities, where economic productivity, fiscal soundness, community life, and governance are tied to natural surroundings in distinct, unique and generally under-appreciated ways. Because the urbanized world depends on ecosystem services – both inside and outside of city boundaries – investing in the provision of ecosystem services will often be more cost-effective than response actions, such as treatment, restoration, and disaster response. Given the importance of urban ecosystem benefits to surrounding populations, we might expect that ecosystem services would play a prominent role in the formulation of urban policies, plans, and laws. However, with rare...

Pursuing Geoengineering for Atmospheric Restoration

Mon, 26 Oct 2026 00:00:00 +0000

Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.

Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with the smallest chance of unintentional harm to the environment. Forest protection and restoration is an opportunity available now. The other two, industrial carbon removal and bioenergy linked to carbon capture and storage, need extensive research to make them effective and to reduce their costs....

Turning the World Upside Down: How Frames of Reference Shape Environmental Law

Mon, 26 Oct 2026 00:00:00 +0000

Models and representations help us understand complex phenomena. The Mercator map presents a familiar, two-dimensional view of our three-dimensional world, for example, but it can distort as much as it clarifies. In the natural sciences, too, there are very different ways of framing reality. The classic method developed by Leonard Euler measures a system from a fixed point. A competing method developed by Joseph Louis Lagrange measures from the perspective of a particle moving within the system. These Eulerian and Lagrangian methods of measurement dominate the physical sciences and provide different, though equally valid, measures of how the system operates. This Article explores how our frame of reference shapes our understanding and application of environmental law. Using examples from the Clean Air Act, Clean Water Act, and other statutes, we argue that environmental law is just as sensitive to Eulerian and Lagrangian frames of reference as fluid mechanics or cartography, and...

Brief of Amicus Curiae Tax Professors in Support of Respondent in Moore v. United States

Wed, 21 Oct 2026 00:00:00 +0000

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of income as more than money income and including unrealized gain. Similarly, the legislators who passed the Sixteenth Amendment also envisioned a broad definition of income and clearly understood the word income to include unrealized income. Those legislators were familiar with the income tax statutes that existed before and directly after ratification that...

A Tax Lesson for Education Law

Wed, 21 Oct 2026 00:00:00 +0000

This piece critiques the tax analysis in a recent GAO Report on the role of the Department of Education and the IRS in regulating conversion of for-profit to tax-exempt nonprofit colleges. It argues that the tax analysis in the report failed to take into account the application of section 4958 or the special rules for section 501(c)(3) organizations that are also government affiliates. The analysis of the report also reveals two other important considerations. One involves the regulations under section 4958. The regulations regarding the initial contract exception leave uncertain the treatment of newly hired employees who meet its requirements. The other involves an issues of statutory interpretation. When one agency borrows language from another, as the Department of Education did here regarding private inurement, interpretations of identical language can diverge over time. Identical words do not necessarily produce identical meaning.

Comment Letter re Treasury and IRS Guidance on IRC § 6417, Elective payment of applicable credits

Wed, 21 Oct 2026 00:00:00 +0000

In Notice 2022-50, the Department of Treasury and the Internal Revenue Service requested public comment on guidance to be issued in connection with § 6417, one of the provisions enacted as part of the Inflation Reduction Act to encourage clean energy. This letter discusses treatment of § 115 exclusion entities under this provision. Such entities have no income pursuant to section 115(1), which states that gross income does not include “income derived from . . . the exercise of any essential governmental function and accruing to a State or any political subdivision thereof, or the District of Columbia.”The letter argues that § 115 exclusion entities can and should be treated as exempt organizations under § 6417(d)(1)(A) so that they qualify to monetize certain energy credits. It draws on the author’s many years of scholarly writing on § 115(1) as well as the purpose of § 6417, the language of the statute, and other IRS guidance, to make its argument.

Reviewing For-Profit Philanthropy And the 1969 Tax Reform Act

Wed, 21 Oct 2026 00:00:00 +0000

For-Profit Philanthropy criticizes recent developments in philanthropy, arguing that they demonstrate “the unraveling of a pact between elites and the public that fueled half a century of philanthropic achievement.” My review recognizes the achievement of this book, in particular the breadth of its examination, but, of course, also critiques it. The authors argue that recent philanthropic activity by wealthy elites betrays the grand bargain of the 1969 Tax Reform Act that set out the rules for private foundations. I believe this thesis claims somewhat too much. In my view, it does not sufficiently weigh the value of donor privacy and by ignoring other philanthropic vehicles blessed by tax law, both before and after the 1969 Tax Reform Act. For example, Reiser and Dean offer a lengthy treatment of philanthropic LLCs. They lament that these LLCs do not face the same requirements regarding transparency and accountability as do private foundations. I find this comparison misplaced....

Muffled Chevron: Judicial Review of Tax Regulations

Wed, 21 Oct 2026 00:00:00 +0000

Taxpayers and their lawyers frequently express displeasure with tax regulations. Some go further and litigate the regulations' validity. The result of such challenges often depends on the degree of deference that reviewing courts give to the regulations. The degree of judicial deference to administrative decision-making in turn raises questions about the division of labor between courts and agencies. It "implicates constitutional concerns about the role of the courts in a government of separated powers," perhaps most importantly, about the ability of courts to serve "as a balance for the peoples' protection against abuse of power by other branches of government."In recent years, courts facing questions of judicial deference to agency decisions have had to struggle with Chevron U.S.A., Inc. v. National Resources Defense Council, a 1984 Supreme Court decision that has been described as creating a "revolution in administrative law" by giving controlling effect to administrative decisions....

Municipal Bonds and Accountability to the General Electorate

Wed, 21 Oct 2026 00:00:00 +0000

A recent IRS technical advice memorandum denied tax-exempt status to bonds of a development district on the grounds that the district was not “inherently accountable, directly or indirectly, to a general electorate.” This short piece reviews applicable law and private letter rulings to argue that this position represents an unprecedented change in applicable standards. Such a change should be introduced as a proposed regulation with notice-and-comment.

Nonprofits and Political Activity: Lessons from England and Canada

Wed, 21 Oct 2026 00:00:00 +0000

In the recent debate about nonprofit organizations and political activity, little attention has been paid to what we can learn from the approach of other countries. This piece compares U.S. rules with those of Canada and England, in the context of both their nonprofit rules applicable to political activity and their campaign finance laws. As the piece explains, England and Canada, like the U.S., prohibit direct or indirect campaign intervention by charities. These countries, however, differ from the U.S. and each other in the amount of lobbying and other non-campaign political engagement permitted by charities. England and Canada do not limit noncharitable nonprofits from engaging in any type of political activity under their nonprofit or tax laws. Both countries, however, regulate elections and campaign finance in general more stringently than does the U.S.

Misunderstanding National Religious Broadcasters

Wed, 21 Oct 2026 00:00:00 +0000

This piece examines the proposed order and joint motion for entry of consent judgment in National Religious Broadcasters v. Commissioner addressing the relationship between the Johnson Amendment, which prohibits campaign intervention for any entity exempt under section 501(c)(3), and houses of worship. In it, Aprill explains that, if the judge adopts the proposed consent order, it would enjoin enforcement of the Johnson Amendment only against those two churches. The proposed order, however, has been widely misunderstood as the IRS giving permission for houses of worship generally to ignore the Johnson Amendment in a variety of settings. That misunderstanding calls for a critical evaluation of reasoning in the proposed order. The piece questions the proposed order on several grounds — its interpretation of statutory language, the analogy to a family discussion, its selective use of Supreme Court precedent, and the practical effect of the rule as articulated. Should the IRS decide...

The Parsonage Exemption Subsidizes Religion

Tue, 20 Oct 2026 00:00:00 +0000

In this piece, Professors Adam Chodorow and Ellen Aprill discuss section 107(2), which permits churches and other religious organizations to provide tax-housing to their ordained ministers, in the context of litigation involving the provision. They argue that the exemption provides special benefits unavailable to laypeople and thus raises serious establishment clause concerns.

Readers please note: After this piece went to press, the court enjoined enforcement of section 107(2) beginning 180 days after the later of the conclusion of any appeals or expiration of time for filing any appeal.

Excluding the Income of State and Local Governments: The Need for Congressional Action

Tue, 20 Oct 2026 00:00:00 +0000

This article, although more than 25 years old, has renewed importance in light of the 2017 tax legislation. The 2017 legislation introduced limits on the deductibility of state and local taxes as well as an excise tax applicable to various exempt organizations, including some governmental affiliates, on certain kinds of excess compensation. These legislative changes have focused attention on how the federal government categorizes state governmental entities and their affiliates. The many potential categories include states, their political subdivisions, integral parts of states or political subdivisions, governmental instrumentalities, entities with income derived from an essential governmental function, and governmental affiliates exempt under section 501(c)(3).

The article describes the criteria for and the implications of each of these categories, including their eligibility for deductible contributions. It examines the legislative history of these various statutory...

We the Shareholders: Government Market Participation in the Postliberal U.S. Political Economy

Tue, 20 Oct 2026 00:00:00 +0000

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private — and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regulatory and welfare programs proliferated. At other moments, the Market struck back, forcing the State to cede ground. The names of these contests are as familiar as Normandy, Gettysburg, and Agincourt: Progressivism, Lochnerism, the New Deal, the Great Society, and the Reagan Revolution.Today, however, those conflicts seem antiquated, waged over increasingly inconsequential terrain. We’ve now so pervasively blended public and private identities and powers that the traditional liberal divide has all but collapsed. But with the blurring of old battle lines, new ones emerge. This Essay considers the apparent demise of legal liberalism and the...

The Ballot, the Bimah, and the Tax Code

Tue, 20 Oct 2026 00:00:00 +0000

Under the Internal Revenue Code, synagogues, like other organizations exempt under section 501(c)(3), are prohibited from political campaign intervention, may engage in some lobbying, and are free to take positions on issues of public policy without limit. This essay will explain how the IRS distinguishes these categories. It will include a discussion of direct and indirect endorsement of political candidates. It will also explain when rabbinic speech is deemed that of the individual and when it is attributed to the synagogue. The goal of the piece is to help rabbis understand this area of the law so that they may navigate within its strictures, such as they are. To that end, it will also offer some practical guidelines for commonly encountered situations.

Caution: Enterprise Zones

Tue, 20 Oct 2026 00:00:00 +0000

This article analyzing the likely impact of tax incentives proposed in federal enterprise zone legislation appeared some 25 years ago, long before SSRN existed. I am posting it now because its arguments bear upon current discussion and expectations regarding Opportunity Zones. The 1993 article urged that any geographically based tax incentives include incentives to hire workers. For example, it quoted a 1991 CRS study by Jane Gravelle warning that “a capital subsidy will actually decrease employment and wages, making the residents of the zone worse off than they were before.” It also described how the section 936 income tax credit for Puerto Rico produced few jobs.The Opportunity Zone provisions lack any tax incentives for labor, although some commentators, such as students in Professor Clint Wallace’s University of South Carolina Law School’s Tax Practicum Class have suggested interpretations of the statute that would permit such incentives. The absence of incentives for labor...

Unpacking the Most Important Paragraph in Loper Bright

Tue, 20 Oct 2026 00:00:00 +0000

Loper Bright Enterprises v. Raimondo, of course, overruled Chevron v. NRDC, ending judicial deference to administrative agencies conferred by ambiguous statutory language. The opinion also acknowledged that in many statutory provisions, Congress delegates discretionary authority to administrative agencies. If so, agencies rather than courts have primary responsibility for interpreting the statutory language. Professor Chris Walker has called the paragraph in the text describing such policymaking delegation as the most important in the opinion. Understanding it calls for careful consideration of the cases and statues it cites. The examination of these citations demonstrates that they do not offer the kind of guidance for which we may have hoped, much less expected.

What about Private Options?

Tue, 20 Oct 2026 00:00:00 +0000

There is considerable enthusiasm today for public options, particularly in the health care and banking sectors. A compromise between entirely private commercial provision and wholly bureaucratic, tax-and-transfer government provision, public options are designed to offer citizen-consumers greater choice and protection. In blending (rather than choosing between) market ordering and state welfare, government agencies experimenting with public options are stepping out of their sovereign lane, forgoing legislative and regulatory tools in favor of commercial ones.Plenty of thoughtful work on public options already exists. For that reason, this Essay turns its attention to the converse phenomenon—namely, private options. Just as public options involve governments using commercial—not sovereign—pathways to remedy market failures, private options involve firms (or groups of employees) adopting sovereign—not commercial—postures to remedy government failures.Private, sovereign-like interventions...

Section 501(c)(4) Organizations, the Gift Tax, and Election Law Disclosure

Tue, 20 Oct 2026 00:00:00 +0000

Recent discussions of whether gifts to section 501(c)(4) organizations that engage in candidate-related activity are subject to the federal gift tax have failed to make clear an important distinction. This important distinction is whether the contributor is making the gift to the organization as a whole or making the gift for its candidate-related activities and, in particular, for its candidate-related advertisements. The distinction can matter not only for gift tax liability, but also for disclosure obligations under campaign finance laws.

Contributors of large sums close to an election are caught between the proverbially rock and hard place: the more that they position themselves to avoid gift tax liability, the more likely that they may become obliged to disclose their contributions under the campaign finance laws, and vice versa. As this short piece explains, if donors take the position that their gifts are for particular candidate-related activities rather than...

Parsonage and Tax Policy: Rethinking the Exclusion

Tue, 20 Oct 2026 00:00:00 +0000

This report urges changes to the parsonage exclusion of section 107 beyond the recent amendment intended to resolve the dispute between the parties in the pending Warren litigation and thus prevent the Ninth Circuit from considering he constitutionality of section 107. For both furnished housing and the paid housing allowance, the proposed revision of section 107 would broaden the reach of the provision beyond ministers of the gospel to employees of any public charity. Such broadening would avoid possible Establishment Clause problems by including religious organizations in a larger group. It would also reflect our longstanding decision to favor and encourage organizations exempt under section 501(c)(3). For revenue, as well as policy reasons, however, the benefits of revised section 107 would be limited to those employees who must be available for emergency call at all times to meet with members, clients, or patients. As so revised, section 107 would be likely to benefit employees...

Tribal Bonds: Indian Sovereignty and the Tax Legislative Process

Tue, 20 Oct 2026 00:00:00 +0000

In tax law, as elsewhere, the federal government has treated native Americans and their tribal governments ineffectively and inconsistently. Examining the treatment of Indian tribal government under the Internal Revenue Code through the early 1990's demonstrates again their unique position in our federal system. The saga of how these tax laws affected tribal governments, however, also illustrates in dramatic microcosm the relationship between ambiguous statutory language, administrative discretion, and legislative oversight.

This article begins by reviewing IRS rulings that preceded any legislative action. Part II explores the forces that produced the Tribal Tax Act of 1982 and analyzes the legislative benefits of a vague statutory standard in connection with a key provision of the legislation, that giving the tribes authority to issue tax-exempt bonds for "essential governmental functions." Part II describes the response of the IRS to this statutory provision. It explains...

A Case Study of Legislation vs. Regulation: Defining Political Campaign Intervention Under Federal Tax Law

Tue, 20 Oct 2026 00:00:00 +0000

The rules that should govern political campaign intervention by social welfare organizations exempt from taxation under § 501(c)(4) of the Internal Revenue Code have been the subject of recent controversy. Long before all the attention, a group of dedicated and experienced experts on the topic, under the auspices of two well-known nonprofit groups, undertook the task of clarifying the rules regarding tax-exempt political activity. In light of the issues becoming national news, the group, known as the Bright Lines Project, also converted the regulatory proposal into legislative language. These two versions of the same rules — as a set of regulations and as a set of statutes — provide a natural laboratory to compare the administrative law implications of choosing between legislation and regulation to establish a set of tax rules. This Article undertakes that examination. It concludes that, if revenue rulings interpreting regulations are afforded deference under Auer v. Robbins and...

Sovereigns, Shopkeepers, and the Separation of Powers

Mon, 19 Oct 2026 00:00:00 +0000

For decades, we have examined privatization with zeal and rigor. Relegated to the margins, however, have been inquiries into privatization’s close cousin: direct government market participation. Given the ubiquity of government commercial transactions, the political, legal, and economic challenges such transactions engender, and the rise of CEO-style elected officials — the Trumps, Bloombergs, and Romneys of the world — almost evangelical in their commitment to running government like a business, closer study is warranted.This Article characterizes direct government market participation as a complicated, confusing, and potentially dangerous fusion of sovereign and commercial power. It describes how this fusion may undermine markets, aggrandize State power, or do both at the same time. It compares the straddling of the sovereign and commercial realms with any number of other constitutionally problematic bridging efforts, including those to combine executive and legislative; executive...

Testimony before California's Task Force to Study and Develop Reparation Proposals for African Americans

Mon, 19 Oct 2026 00:00:00 +0000

California Assembly Bill 3121 establishes the Task Force to Study and Develop Reparation Proposals for African Americans, with a Special Consideration for African Americans Who are Descendants of Persons Enslaved in the United States.My testimony addresses how best to translate substantive reparations proposals into durable, legible, legitimate, and democratically accessible programs. My testimony evaluates institutional design choices, makes recommendations regarding staffing decisions and protocols, considers strategies to promote robust public engagement, and opines on the suitability of different funding sources.

To Promote the General Welfare: The Republican Imperative to Enhance Citizenship Welfare Rights

Mon, 19 Oct 2026 00:00:00 +0000

This Note revisits the jurisprudential and conceptual case for substantive welfare rights. Its objective is two-fold: to make sense of the failed attempts to incorporate substantive welfare rights into our constitutional canon and to propose an alternative legal foundation for promoting those rights. Ultimately, it seeks to develop a theory of citizenship welfare rights premised on the understanding that affirmative rights to basic resources are necessary to enable individuals to engage meaningfully in a participatory democracy.

Summoning Firms: Promoting Democratic Stability and Economic Prosperity in Times of Constitutional Crisis

Mon, 19 Oct 2026 00:00:00 +0000

Every day, members of the American business community are asking themselves what they can and should be doing to protect and preserve our democracy—consistent with their duties to their shareholders, directors, managers, and employees. They’ve watched corporate leaders and entrepreneurs try to placate or even support anti-democratic saboteurs, only to realize that those most openly dismissive of civil rights and the rule of law are also hostile to free enterprise. Not quite sure what to do—particularly if they fear the Democrats are more hostile to free enterprise—they have remained on the sidelines as economy-crushing campaigns targeting noncitizens, free trade, free press, public health and K-12 education, and universities gain momentum.

The next phase of pressure and, seemingly, capitulation is already upon us, as firms are being coerced in a manner similar to how blue states, sanctuary cities, and universities are being threatened with investigations,...

The American Deep State

Mon, 19 Oct 2026 00:00:00 +0000

Given the mood of the nation, there is good reason to reject the very premise of an American deep state. This is especially true so long as the concept serves primarily as fodder for conspiracy-mongering and fuel for the domestic culture wars. Yet such a wholesale rejection of the "deep state" label comes at the expense of accuracy, nuance, and opportunity. In truth, we do have—and have long enjoyed—bureaucratic depth. And Donald Trump, more than any other president, has brought into relief its legal and political raisons d'être.

This Essay insists that the American deep state has very little in common with those regimes—think Egypt, Turkey, and Pakistan—usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial or caste incentives to subvert popular will; that demotic depth of the American variety should be celebrated,...

The Cycles of Separation-of-Powers Jurisprudence

Mon, 19 Oct 2026 00:00:00 +0000

The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although all Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. Breaking from previous scholarship critical of the Court’s zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We develop a new theoretical account of the separation of powers in which doctrinal cycling can be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second,...

Vigilante Nation: How State-Sponsored Terror Threatens Our Democracy (Intro and Ch. 1)

Mon, 19 Oct 2026 00:00:00 +0000

When confronted with challenges to their power, white Christian nationalists time and again have sought solace in state-supported forms of vigilantism. This was true when Northern abolitionists threatened the Southern slavocracy. It was also true in the aftermath of the Civil War, when emancipated Black Americans and their Northern allies sought to fulfill the promises of Reconstruction. And though this pattern was seemingly broken by the Civil Rights revolution of the 1950s and ’60s, political violence that has the tacit or explicit backing of police, prosecutors, legislators, judges, governors, and even presidents has made a surprising, roaring comeback in the years following the failed coup of January 6th.Vigilante Nation underscores the stakes as it tells the story of the right’s work to marginalize, subordinate, and disenfranchise Americans through numerous methods, ranging from book bans to anti-abortion bounties to attacks on citizens, voters, and government officials.

The (Willingly) Fettered Executive: Presidential Spinoffs in National Security Domains and Beyond

Mon, 19 Oct 2026 00:00:00 +0000

This article considers two increasingly important, but poorly understood, case studies that involve the Executive, on its own initiative, relinquishing control over essential national-security responsibilities by way of institutional redesign. The Executive already enjoyed unfettered discretion with respect to (1) the CIA financing and developing new technologies for its spies and (2) the President scrutinizing foreign investments that threaten U.S. national security. Nevertheless, it created In-Q-Tel, a private venture-capital firm, to incubate intelligence technologies. It also empowered the inter-agency Committee on Foreign Investment in the United States (“CFIUS”) to investigate and impose conditions on foreign entities seeking to acquire controlling interests in strategically important American firms.

In creating In-Q-Tel rather than allowing the CIA to direct R&D internally, and in delegating to an inter-agency committee sensitive responsibilities that Congress...

Vigilante Federalism

Mon, 19 Oct 2026 00:00:00 +0000

In battles over abortion, religion, sexuality, gender, and race, state legislatures are mass producing a new weapon. From Texas’s S.B. 8 to Florida’s STOP WOKE Act to a flurry of bills empowering parents to sue schools that acknowledge LGBTQ identities or implement anti-racist curricula, state legislatures are enacting laws that call on private parties—and sometimes only private parties—to enforce their commands. These laws were initially viewed as a means of implementing unlawful policies while escaping judicial review. But manipulating judicial review is only the tip of the iceberg. The proliferation of what we term “private subordination regimes” bolsters the right-wing anti-democratic project. It does so by legalizing vigilantism and thus encouraging (White, Christian) partisans to police the most intimate aspects of other people’s lives and force Black Americans, women, and LGBTQ persons out of public spaces.The spread of private subordination regimes through states such...

Summoning States: A Ten-Part Plan for the States to Promote Democracy, Public Health, and Prosperity

Mon, 19 Oct 2026 00:00:00 +0000

The federal government’s attacks on our bureaucratic institutions, federal workforce, open society, public and private infrastructure, health and education systems, and mechanisms relied on to confront climate change, natural disasters, and global threats are causing considerable (and needless) suffering. Just as significantly, if not more so, these attacks are making it significantly more difficult for a democratic insurgence to gain traction, and for a political, legal, and civic renaissance to ever take root. Under such circumstances, states cannot hope to "ride out" the federal storm. Instead, they must step up. What follows is a blueprint for blue, purple, and even red states to:

1. Fill the regulatory, welfare, and public health and safety gaps created by a federal government committed to disabling and weaponizing its fiscal and bureaucratic powers and resources; and

2. Take the offensive,...

Private Military Firms, the American Precedent, and the Arab Spring

Fri, 16 Oct 2026 00:00:00 +0000

This essay, part of the Stanford International Law Journal’s symposium on the Arab Spring, examines the special role foreign military contractors have played (1) in deterring and helping suppress domestic uprisings across the Arab world and (2) in altering the trajectory of the military-contractor industry.

Running Government Like a Business... Then and Now

Fri, 16 Oct 2026 00:00:00 +0000

In Against the Profit Motive, Nicholas Parrillo takes us back to a time when the now-vast administrative state was just beginning to find its footing. The administrative state did so, Parrillo tells us, in large part by terminating what in essence was America’s last sustained romance with business-like government — a romance that united government service with the pursuit of profits.

Against the Profit Motive is a work of history, but this history has immense contemporary relevance. Of late, the specialness and legitimacy of the administrative state is increasingly challenged, discredited, and undermined amid calls to, once again, run government like a business. In light of contemporary American government’s widespread reliance on private, for-profit contractors to carry out public responsibilities, its reorientation of the public workforce to more fully respond to market pressures and incentives, and its effective ownership of automotive, insurance, and even venture...

Of Constitutional Custodians and Regulatory Rivals: An Account of the Old and New Separation of Powers

Fri, 16 Oct 2026 00:00:00 +0000

The theory and reality of “administrative separation of powers” requires revisions to the longstanding legal, normative, and positive accounts of bureaucratic control. Because these leading accounts are often insufficiently attentive to the fragmented nature of administrative power, they tend to overlook the fact that internal administrative rivals — perhaps as much as Congress, the President, and the courts — shape agency behavior. In short, these accounts do not connect what we might call the old and new separation of powers. They thus fail to capture the multidimensional nature of administrative control in which the constitutional branches (the old separation of powers) and the administrative rivals (the new separation of powers) all compete with one another to influence administrative governance.

Connecting novel insights regarding administrative separation of powers to old — and seemingly settled — debates over the design and desirability of bureaucratic control,...

Privatization’s Pretensions

Fri, 16 Oct 2026 00:00:00 +0000

For decades, policymakers have been privatizing government responsibilities for the customary, and ostensibly exclusive, objective of providing the public with the same goods and services more efficiently. It is becoming increasingly apparent that these policymakers are also doing something different: they are using that purportedly technocratic process to substantively alter the very policies they are supposed to be neutrally administering. And, it is working: these privatization “workarounds” can directly change the content of public education, health, and social welfare programs, the outcome of regulatory enforcement and rulemaking proceedings, and the trajectory of police and national security operations.

Workarounds provide outsourcing agencies with the means of accomplishing distinct policy goals that – but for the pretext of technocratic privatization – would either be legally unattainable or much more difficult to realize. In short, they are executive aggrandizing....

Separation of Powers and Centripetal Forces: Implications for the Institutional Design and Constitutionality of Our National Security State

Fri, 16 Oct 2026 00:00:00 +0000

Today’s national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political–civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolidation has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of consolidation at a time — and they have assessed the pros and cons of public-private, federal-state, or intra-agency consolidation against what they treat as an otherwise static backdrop.

This Essay insists that we need to think more capaciously and systemically — to take stock of all of the moving parts and gauge how they work...

The Organization for Economic Cooperation and Development's Role in International Law

Thu, 15 Oct 2026 00:00:00 +0000

The Organization for Economic Cooperation and Development (OECD) has played, and continues to play, an important and largely unrecognized role as a lawmaking body. The OECD occupies a unique space in the international lawmaking field, in large part because it was not established with lawmaking as a priority. In a small number of cases, however, it has played a significant role in crafting the emerging architecture of global governance. Case studies of the hazardous waste trade, the Bribery Convention, and the OECD Guidelines for Multinational Enterprises are presented to demonstrate a clear pattern. A topic of major concern arises on the international stage, such as hazardous waste trade, bribery, or corporate conduct. Efforts within the United Nations or other international organizations to draft an agreement are unsuccessful. The OECD proceeds on its own and provides an agreement that serves as the basis for future negotiations in fora with wider membership. The keys to this...

Authoritarian Populism and the Rule of Law

Thu, 15 Oct 2026 00:00:00 +0000

This essay, a revised and expanded version of my keynote address at the California Western School of Law’s 2026 Spring Symposium on the Rule of Law: A Global Examination of Government and Institutional Power, explores the relationship of authoritarian populism to the rule of law. Unlike its universal record of democratic backsliding and assaults on the separation of powers, there is a certain ambiguity in both the practice of authoritarian populist regimes and the literature on it with respect to this issue. While the ways in which such regimes are hostile to the rule of law are routinely and properly emphasized, some influential commentators have also identified and underscored their general legalistic approach to governance and preferred employment of procedurally valid forms of legal and constitutional change. Since these might be thought of as laudable, rather than nefarious, traits from a rule of law perspective, this seemingly bifurcated reality and analysis calls for...

Teaching Policy Instrument Choice in Environmental Law: The Five P's

Thu, 15 Oct 2026 00:00:00 +0000

While environmental law may appear dauntingly complex, and on occasion truly is, it turns out that understanding instrument choice can be straightforward. Perhaps surprisingly, there are only five basic policy instruments in play, and these can be effectively taught through a simple framework known as “The Five P’s.” Just as a complex sonata can be reduced to a small number of white and black piano keys, so can students’ mastery of the Five P’s allow them to identify the potential range of policy instruments at work in any statute. Despite their application across a dizzying range of situations, the basic environmental policy tools remain the same.

The Five P’s include Prescriptive Regulation, Property Rights, Penalties, Payments, and Persuasion. To be sure, this framework cannot perfectly capture the dizzying range of all environmental policy. The vast majority of instruments, however, do fit easily within the Five P’s framework. As a result, a teacher can easily share...

What is the Emperor Wearing? The Secret Lives of Ecosystem Services

Thu, 15 Oct 2026 00:00:00 +0000

Since exploding onto the scene in the late 1990s, the concept of ecosystem services has become immensely popular in environmental policy around the globe. Described in books, debated by scholars, taught in the classroom, lobbied for by environmental groups, adopted by the United Nations in its Millennium Ecosystem Assessment, and legislated in Congress, ecosystem services continue to generate significant excitement across the policy spectrum. Presented at Pace Law School as the annual Gilbert and Sara Kerlin Lecture, these remarks are offered from the perspective of someone who has been working in the field for over a decade. This piece takes a close look at why the concept of ecosystem services has enjoyed such rapid adoption in the policy world, whether the enthusiasm is justified, and where the field is going.

Climate Change Meets the Law of the Horse

Thu, 15 Oct 2026 00:00:00 +0000

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, duly self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation.

Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity...

Regulating Climate: What Role for the Clean Air Act?