National Security Law and Business

Moderator: Prof Robert E. “Bobby” Bishop, associate professor, Duke Law School Panelists: Ms. Rachael D. Kent, Vice Chair, International Arbitration Practice Group, WilmerHale Prof Timothy Meyer, Richard Allen/Cravath Distinguished Professor in International Business Law, Duke University School of Law Ms. Jennifer S. Zucker, Co-Chair, Government Contracts Practice, Greenberg Trauig, LLP Ms. Caroline E. Brown, Partner, Crowell & Moring, member of the firm’s International Trade groups and serves on the National Security Practice steering committe

Presidential Administration\u27s Accountability

Intro by Brandon Brian D. Feinstein, Presidential Administration’s Accountability Fallacy Discussant Kevin M. Stac

Fraudulent Transfer Law and Sovereign Immunity: An Actual Abuse of Federalism?

After All Resort Group filed for bankruptcy, David Miller, its appointed trustee, sought to claw back tax payments the company had made on behalf of two of its principals to the IRS by arguing the payments constituted fraudulent transfers. Unlike a typical clawback action, however, the trustee brought this proceeding under Section 544(b), rather than the more common fraudulent transfer provision, Section 548, because § 544(b) permits the trustee to rely on state fraudulent transfer law—which has longer statutes of limitations than the federal fraudulent transfer provision. The Government challenged this action, arguing that recovery from the IRS was barred by sovereign immunity. The United States Bankruptcy Court for the District of Utah rejected this view, finding that the plain text of § 106(a)(1) of the Bankruptcy Code, which waives sovereign immunity for fifty-nine sections of the Code, including 544, unequivocally abrogates sovereign immunity as to the underlying Utah state law cause of action. On appeal, the Tenth Circuit affirmed, holding that the language of § 106(a), which abrogates sovereign immunity with respect to Section 544, was intended to be broad enough to encompass applicable state law. The Court should reverse, as an actual creditor who sought to avoid the transfer in question would be prohibited from doing so outside of bankruptcy. To affirm the Appellate Court\u27s holding would allow a trustee in bankruptcy to exploit a favorable state law—here, a longer statute of limitations—thereby circumventing federal law. In doing so, the Court risks undermining the nation\u27s delicate system of structural federalism

The Solicitor General, Consistency, and Credibility

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility. To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive. These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience—to consider the tradeoffs between stability and change

The Invention of Authenticity

Christopher Sprigman, Murray and Kathleen Bring Professor of Law and Co-Director of the Engelberg Center on Innovation Law and Policy at NYU Law will deliver the annual David L. Lange Lecture in Intellectual Property Law. The title of the lecture is The Invention of Authenticity. Professor Sprigman will investigate the role that arguments about authenticity play in our culture, and the role of law in determining the predicates of authenticity for a wide array of cultural products. Sponsored by the Office of the Dean

The Military Uses of Artificial Intelligence

Fireside Chat: Lt Gen John N.T. “Jack” Shanahan, USAF (Ret.) former Director of the Department of Defense’s Joint Artificial Intelligence Center. Discussant: Prof Gary Corn, Director of the Technology, Law & Security Program and adjunct professor at American University’s Washington College of Law

Leadership Keynote

Introduction: Maj Gen Charlie Dunlap, USAF (Ret.), LENS Executive Director Speaker: Gen. Frank McKenzie, USMC (ret), Executive Director of the University of South Florida’s Global and National Security Institute (former Commander, USCENTCOM; author, The Melting Point: High Command and War in the 21st Century (2024)