The National Security Constitution in the 21st Century

Speaker: Prof. Harold Hongju Koh, Sterling Professor of International Law, Yale University, 22nd Legal Advisor to the State Department; author, The National Security Constitution in the 21st Century (2024

Sticker Shock Due Process

To address undesirable conduct like infringing a copyright or placing a robocall, legislatures have created statutory causes of action that enable plaintiffs to file private suits. Instead of needing to prove actual damages from a defendant\u27s conduct, many statutory causes of action allow a plaintiff to pursue a predefined damages amount per statutory violation. The damages are known as statutory damages, and their elegance lies in how they scale linearly, or one-to-one, with every violation by a defendant. But in the digital age, where automated technologies can generate millions of violations without human oversight, courts are now confronting monstrous aggregate awards composed of small individual violations performed by machines and artificial intelligence. To deal with this problem, the Ninth Circuit recently held in Wakefield v. ViSalus that an aggregate award comprised of constitutionally valid per-violation statutory damages could warrant a substantive due process reduction when the award is excessive to the underlying legislative goals. This Note warns that the Ninth Circuit\u27s limit in Wakefield is a sticker shock approach to substantive due process—one that improperly focuses on the sheer size of a final aggregate award rather than the fairness or constitutionality of the underlying individual penalties. By allowing discomfort with large class action outcomes to override other considerations, Wakefield threatens to erode statutory enforcement mechanisms, deter class action plaintiffs, and alter due process doctrine to benefit large-scale violators across the country

Transnational Corporate Law Litigation

For nearly half a century, a federal statute colloquially referred to as the Alien Tort Statute has served as a pivotal battleground over whether corporations violating law abroad can be subject to civil suits in the United States. The statute has been used to bring hundreds of lawsuits against corporations involved in some of the most heinous human rights abuses and environmental catastrophes taking place in foreign nations. Recent Supreme Court cases, however, have sounded the death knell for the viability of future cases by restricting the extraterritorial reach of federal statutes. This Article presents a case for deterring corporate lawbreaking abroad through U.S. corporate law. Unlike Alien Tort Statute cases, corporate governance suits brought by shareholders would frame corporate lawbreaking in foreign nations not as torts actionable under a federal statute but as fiduciary duty claims under state law against directors and officers for enabling U.S. corporations to violate foreign law. In presenting a blueprint for litigators to bring what can be conceptualized as transnational corporate law litigation, this Article clarifies how violations of foreign law—including human rights laws, labor laws, and environmental regulations—can trigger powerful fiduciary duty claims against directors and officers in the United States. These suits promise to deter corporate lawbreaking by provoking the judicial articulation of norms governing transnational business operations with vast implications for understanding the social responsibility of modern corporations

Pick Your Precedent: Bostock, Dobbs, and the Uncertain Reach of Intermediate Scrutiny in United States v. Skrmetti

The Supreme Court will yet again wade into highly politically charged waters this term when it decides United States v. Skrmetti, a case about gender-affirming healthcare for minors. More specifically, Skrmetti will decide whether SB1, a 2023 Tennessee law that bans gender-affirming care for individuals below age 18, violates the Fourteenth Amendment\u27s Equal Protection Clause. The Tennessee Plaintiffs and the Biden administration, which intervened on their behalf, have argued that SB1 unconstitutionally discriminates on the basis of sex and transgender status. In response, Tennessee has argued that SB1 only uses age and medical purpose—not sex or transgender status—to delineate between lawful versus unlawful medical care. Two recent blockbuster cases from the Court—Bostock v. Clayton County, which ruled that Title VII\u27s ban on sex discrimination in employment covered discrimination based on sexual orientation and transgender status too, and Dobbs v. Jackson Women\u27s Health Organization, which rejected the constitutional right to abortion—will likely influence the Court\u27s decision. This Commentary discusses how the Court should consider these cases and why it should ultimately find that SB1 violates the Equal Protection Clause. That said, this Commentary also acknowledges that the more likely outcome is a ruling for Tennessee and explores the potential impacts of such a ruling

Feed It to the Ocean: The Federal Approach to Decommissioning in Alaska Native Climate Adaptation Projects

This Note calls on the Council on Environmental Quality (CEQ) to issue guidance clarifying that concurrent decommissioning is an in-scope “connected action” under the National Environmental Policy Act for relocation, managed retreat, and protect-in-place projects aimed at replacing infrastructure in environmentally threatened Alaska Native communities. In 2018, the Denali Commission completed the Final Environmental Impact Statement for Alaska’s first community-driven village relocation of the millennium, facilitating construction of essential infrastructure at Mertarvik, the relocation site for the village of Newtok. However, the Denali Commission chose to exclude a full-scale decommissioning plan for Newtok’s existing infrastructure. Today, more than seventy-three Alaska Native villages face unprecedented severe threats from flooding, erosion, permafrost degradation, and the combined effects of each. The Denali Commission’s segmented approach to decommissioning exposed critical gaps in interagency coordination, tribal consultation, and funding priorities. It set a dangerous precedent for similar at-risk communities facing toxic pollution of water and subsistence resources. As tribal organizations and federal agencies work to protect these communities from environmental threats and historic inequities, CEQ guidance on decommissioning is more pressing now than ever

The Dangerous Rise of Dual-Use Objects in War

Each day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as “dual-use” objects. Even though the term has become common, international law does not recognize a “dual-use” object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line between “military objectives” that are considered legitimate targets of military force, and civilians and “civilian objects,” which are to be strictly protected. We show in this Article that the targeting of dual-use objects over the last several decades has blurred this line, placing civilians at great risk. The United States has played a critical role in the increasingly expansive targeting of dual-use objects. Indeed, most accounts of the origins of dual-use targeting start with the 1991 Gulf War, in which the U.S.-led coalition responded to Iraq’s occupation of Kuwait with airstrikes on Iraq’s electrical infrastructure and bridges. The Article reviews the history of dual-use targeting and presents an original dataset and primary-source evidence from the sites of U.S. airstrikes in Iraq and Syria from 2014 to 2018 to illustrate the wide range of dual-use objects that the U.S. military has struck. It draws on ground reporting and research to show the true costs of this dual-use targeting for civilians living in areas of conflict. The United States is far from alone in targeting dual-use objects, but we focus on it because it shapes the law of armed conflict by projecting force around the world, providing legal justifications for its use of force, and setting the standards by which other states are measured. Finally, this Article recommends that states engaging in military operations collect better information about dual-use objects so that they can make better-informed targeting decisions. We also offer several recommendations for clarifying international humanitarian law to prevent further erosion of the protections the law provides to civilians during war

Reparations for Project One Hundred Thousand

During the Vietnam War, the U.S. Department of Defense (“DOD”) created a new program that targeted marginalized communities, resulting in thousands of deaths and adversely impacting the lives of more than one hundred thousand others. This Article—which draws on original archival research from obscure DOD files—uncovers the origins and effects of the program called “Project One Hundred Thousand.” This research reveals that the program drafted members of impoverished communities to serve in the place of more privileged men, who received draft exemptions. The program enabled the U.S. government to continue the war at scale without incurring an unacceptable loss of political support for the war from middle-class voters. Project One Hundred Thousand achieved the goal of drafting and inducting more service members by revising the mental aptitude and physical military entrance standards, admitting service members who were previously ineligible to serve in the armed forces. Then–Secretary of Defense Robert McNamara justified the program to the American public, saying it would “uplift” underprivileged men. Instead, the program sent more than half of these men, called “New Standards Men,” to a combat zone and thousands of them to their deaths. The U.S. military issued over one hundred thousand surviving New Standards Men less than honorable discharges—potentially resulting in lifelong exclusion from benefits at the Department of Veterans Affairs, imposing severe economic, social, and psychological costs to these service members. This Article makes two distinct contributions. First, it spotlights an example of how a “system” of systemic racism gets built and draws attention to how systemic racism tangibly impacts the armed forces. Second, it offers a way for the U.S. government to address the injustices it inflicted by suggesting presumptive discharge relief, meaning the DOD would presume the discharge was unjust. The proposed remedy is modeled after the remedy afforded to victims of the military’s past discriminatory policies based on sexual orientation. Informed by this Author’s professional experience representing New Standards Men, this proposal offers a way for the U.S. government to make reparations for the harm it inflicted on marginalized communities

Winning at Any Cost: Overcoming Professional Sports Team Rent Seeking Through the Sports Broadcasting Act

U.S. professional sports teams are integrally linked with the identity of the cities they play in. Because of this prominence, they are some of the most valuable privately owned assets on earth. Their leagues are monopolies, insulated by entry costs that make competition from smaller competitors almost impossible. Owners rent seek using this leverage by demanding states and cities subsidize teams’ operating costs or risk the franchise departing for more generous taxpayer funding elsewhere, creating a race to the bottom. The most gratuitous of these subsidies, to build and renovate stadiums, will cost state and local taxpayers at least $20 billion between 2020 and 2030. Congress can protect states and cities from this rent seeking by amending the Sports Broadcasting Act (“SBA”), a statute that exempts professional leagues and their joint agreements from antitrust scrutiny. An amended SBA would require teams and leagues fulfill certain conditions and refrain from extorting the states and cities they operate in