Recent uclalaw_plltwps items

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?