FEATURE COMMENT: Don’t Let Post-Employment Conflicts Derail Your Contract Award

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes. In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, in recent years, contractors have faced another growing area of risk: protests. In numerous recent bid protests, protestors have alleged “unfair competitive advantages” stemming from Government contractors’ hiring of former Government employees— these include several high-profile examples in which the protests were sustained. Given the increasing prominence of these protests, we surveyed GAO and U.S. Court of Federal Claims protest decisions to identify when those fora have found post-employment unfair competitive advantages and when they have not. We summarized our assessment in a convenient chart that practitioners may use in evaluating potential conflicts. By being vigilant about these concerns and addressing them proactively, contractors may reduce their risk of being the subject of a protest

Feature Comment: Ethics, Compliance, And The Dispiriting Saga Of Craig Whitlock’s Fat Leonard

This essay discusses the forthcoming book, Fat Leonard: How One Man Bribed, Bilked, and Seduced the U.S. Navy (480 pp, Simon & Schuster, 2024), authored by Washington Post investigative reporter, Craig Whitlock. The book chronicles the extraordinary \u27\u27Fat Leonard saga (or scandal), involving Glenn Marine, an Asia-based ship husbanding contractor, and its business with the U.S. Navy. The animating character, not surprisingly, is Leonard Francis, and the book spans his career and demise, which eventually prompted investigations (of hundreds of Naval servicemembers, including 90 admirals), multiple criminal plea bargains, and a staggering number of military administrative actions. On the one hand, Francis is the stuff of legend, originally known to many due to his pretrial escape and the ensuing global manhunt. But, for most readers, what’s so remarkable about the book is the breadth and diversity of the government contracts, government ethics, and compliance issues the case study implicates and the book recounts. Alas, as a cautionary tale (or training tool), one of the book’s pervasive themes is that, when it came to modelling behavior, senior Navy leaders routinely behaved like pigs at the trough rather than cautious and deliberate role models for ethical behavior. Pedagogically and professionally, I hope the book is widely read in (Navy and, more broadly) military circles. Also, my sense is that compliance officials (and professionals in the anticorruption space) will find it informative and worthwhile reading. As an aside, it\u27s a hugely entertaining tale, well told

Protecting the U.S. National Security State from a Rogue President

The presidency of Donald Trump revealed weaknesses in the U.S. constitutional structure and its legal rules, weaknesses that had been covered over for most of our history because presidents of all political parties voluntarily obeyed norms of behavior that kept the presidency within the bounds of constitutional democratic governance. Unfortunately, there is no guarantee that such norms have been permanently restored. Thus, scholars, policymakers, and judges must consider now how to protect the rule of law from a rogue president, rather than waiting for the next crisis to occur. This Article provides a comprehensive set of achievable reforms targeted specifically at the dangers of a rogue president in the national security arena. Because national security tends to implicate the president’s commander-in-chief power, it has historically been an area where presidential power is thought to be at its zenith. As a result, Congress’ power is thought to be circumscribed, and courts tend to be deferential. This historical deference makes the dangers of a rogue president even more acute with regard to national security-related powers than in other areas. Nevertheless, the president’s power over national security matters is not unlimited. Indeed, the U.S. Supreme Court made clear in its landmark decision in Youngstown Sheet & Tube v. Sawyer that presidential power domestically, even in times of military conflict abroad, remains subject to important constitutional constraints. And Justice Jackson’s influential concurrence in that case invoked the specter of an authoritarian president as a principal reason for insisting on those constraints. Thus, we need to embrace a Youngstown-inspired approach to presidential power in the national security arena, and there are steps that could be taken by all three branches of government that would help instill these values and embed rule-of-law norms to at least make it more difficult for a rogue president to tear them down. This Article focuses on five such steps: (1) limit the president’s power to use the military domestically under the Insurrection Act ; (2) better define and limit the president’s emergency powers; (3) set outer bounds to the pardon power with regard to war crimes; (4) empower inspectors general throughout government (and particularly in the national security agencies) and better protect those inspectors general from politically-motivated firing by a rogue president; and (5) encourage courts to take a more skeptical approach to evaluating executive branch invocation of the so-called state secrets doctrine to protect governmental actions from disclosure and scrutiny. For each step, I set forth tangible actions that could be taken by various branches of government, describe some of the existing legal rules that must be overcome in order to implement those reforms, and outline potential constitutional arguments that might arise. Of course, a rogue president with authoritarian impulses could lay waste to any and all guardrails that are created. Nonetheless, the more constraints that are erected, the more difficult the task of authoritarian overreach becomes, and the more likely that actors within the government will be empowered to resist. Therefore, although the multiple reforms described in this Article are certainly not a panacea, they are important and achievable steps that will at least help to preserve rule-of-law values in the national security domain

Assessing Percipient.ai After Loper Bright Enterprises – Potentially a New Trajectory in Government Procurement Law

In early June 2024 the U.S. Court of Appeals for the Federal Circuit issued its decision in Percipient.ai, Inc. v. United States, 104 F.4th 839 (Fed. Cir. 2024). The Percipient decision was noteworthy primarily because it seemed at odds with established precedents regarding standing to bring a bid protest: the case recognized standing in a non-bidder that was not even a potential prime contractor. But a few weeks later the Supreme Court issued its landmark decision in Loper Bright Enterprises v. Raimondo, No. 22-451, in which the Court departed from a forty-year practice of judicial deference under Chevron v. Natural Resources Defense Council, 467 U. S. 837 (1984). Suddenly the approach taken in Percipient took on a new cast: the Percipient decision, like Loper Bright, emphasized the courts’ primacy in interpreting the law, and so Percipient may turn out to have been one of the first decisions which follows Loper Bright’s trajectory and opens new lines of challenge to agency procurement decisions, grounded in the courts’ prerogative to define what the law is

We Need a New Glass-Steagall Act to End the Toxic Symbiosis Between Universal Banks and Shadow Banks, Which Professor Corrigan Has More Fully Revealed

Patrick Corrigan’s recent article highlights the abuses of securitization by universal banks during the subprime lending boom that led to the Global Financial Crisis of 2007–09 (GFC). Professor Corrigan’s article focuses on what Zoltan Pozsar and other researchers have called “internal” shadow banking—namely, the origination and securitization of hazardous loans by universal banks through nonbank affiliates, including broker-dealer subsidiaries and off-balance- sheet securitization vehicles. I agree with Professor Corrigan that the enormous credit risks generated by universal banks and their “internal” shadow banking affiliates played a major role in precipitating the GFC. Professor Corrigan’s article gives less attention to what Pozsar and other researchers have called “external” shadow banking—namely, the origination and securitization of risky loans by nonbank financial intermediaries that are not controlled by banks. “External” shadow banks, including finance companies, hedge funds, and private equity firms, obtain much of their funding by issuing “shadow deposits” (short-term financial instruments that are functional substitutes for bank deposits), such as money market mutual funds, commercial paper, and securities repurchase agreements (repos). Shadow deposits pose grave risks to financial and economic stability and should be regulated in the same way as traditional bank deposits. The dangers created by universal banks (including their “internal” shadow banking affiliates) and “external” shadow banks have intensified since 2009. A toxic symbiosis has developed between the syndication and underwriting of risky loans and debt securities by universal banks and the origination of speculative private credit by “external” shadow banks. That noxious partnership has helped to produce unprecedented levels of risky consumer and corporate debts. Unsustainable debts promoted by universal banks and shadow banks have created dangerously unstable financial markets that depend on frequent bailouts from central banks and other government agencies. Four serious financial disruptions since the GFC have triggered significant government interventions and bailouts—the repo crisis of 2019, the pandemic financial crisis of 2020–21, the failures of three U.S. regional banks in 2023, and the collapse of Credit Suisse. Those episodes demonstrate that universal banks and shadow banks pose massive and unacceptable threats to our financial system, economy, and society. Professor Corrigan proposes two reforms to limit the risks of shadow banks. His reforms are incremental in nature, and their effectiveness would depend on strong implementation and enforcement by federal regulators. Unfortunately, the checkered track record of those agencies over the past four decades raises significant doubts about the efficacy of such reforms. A new Glass-Steagall Act would provide the most direct and effective way to remove the threats posed by universal banks (including their “internal” shadow banking affiliates) and “external” shadow banks. A new Glass-Steagall Act would break up universal banks by forcing banks to divest their capital markets activities. It would greatly reduce the dangers of “external” shadow banks by prohibiting nonbanks from issuing short-term financial claims that are functional substitutes for bank deposits. A new Glass-Steagall Act would restore strong structural buffers designed to stop crises from spreading across financial sectors. Federal authorities would no longer be required to bail out the entire financial system to prevent large banks from suffering crippling losses related to their capital market operations. Nonbank financial institutions would be more stable and resilient because they would be compelled to fund their operations with equity and longer-term debt securities instead of short-term runnable liabilities. A new Glass-Steagall Act would ensure that our political, regulatory, and monetary policies are no longer held hostage by giant financial conglomerates. It would create a more decentralized and competitive financial system by breaking up universal banks. Capital markets would once again become true markets because they would no longer be bailed out to protect universal banks and “external” shadow banks. Financial institutions and financial markets would return to their proper roles as servants—not masters—of commerce, industry, and society

Modeling Fee Shifting with Computational Game Theory

While modern mathematical models of settlement bargaining in litigation generally seek to identify perfect Bayesian Nash equilibria, previous computational models have lacked game theoretic foundations. This article illustrates how computational game theory can complement analytical models. It identifies equilibria by applying linear programming techniques to a discretized version of a cutting-edge model of settlement bargaining. This approach makes it straightforward to alter some assumptions in the model, including that the evidence about which the parties receive signals is irrelevant to the merits and that the party with a stronger case on the merits also has better information. The computational model can also toggle easily to explore cases involving liability rather than damages and can incorporate risk aversion. A drawback of the computational model is that bargaining games may have many equilibria, complicating assessments of whether changes in equilibria associated with parameter variations are causal

Congressional Testimony: Problems with the SEC\u27s Climate Disclosure Proposal

This Congressional testimony, requested by the House Financial Services Committee, identifies the fatal flaws embedded in the SEC\u27s controversial climate disclosure rule, To summarize some primary problems, the Proposal: disregards evidence that most individual investors buy stocks primarily to save, not to influence climate policy; does not address the millions of individual American investors who need the SEC’s protection as they save for education, homes, retirement, and philanthropy; and ignores conflicts of interest between large asset managers and their beneficiaries—ordinary Americans—who have different preferences and goals. In addition, the Proposal mandates irrelevant and burdensome disclosures that would harm investors by: forcing companies to disclose information about the greenhouse gas emissions of their suppliers, employees, and customers, which is useless to investors; making companies report climate impact, not just climate risk, which investors do not need; imposing millions of dollars in annual costs on companies with no clear benefit for investors (or the climate); compelling the disclosure of information that is inherently speculative and uncertain, as likely to mislead investors as to inform them; spurring lawsuits over disclosure adequacy, which wastes resources even when baseless; discouraging companies from being publicly traded, which deprives ordinary investors of opportunities and frustrates capital formation; and usurping state corporate law and company business judgment, which undermines investor rights and interests. Furthermore, the Proposal faces legal challenges under: the major questions doctrine, as it lacks clear Congressional authorization for its significant policy reach, as suggested in cases since the Proposal was issued, especially West Virginia v. EPA; the First Amendment, for compelling company speech on controversial matters; and the Administrative Procedure Act, as it solves no problem within the SEC’s mandate, and includes no proper cost-benefit analysis, perils that led another SEC rule to be vacated last month

Disability, Race, and Immigration: The Intersectional Impact of Policing

Law enforcement officers commonly must respond to situations in which a person is experiencing acute symptoms of a mental illness. Yet from the first moment of police involvement, these community members face the possibility of negative outcomes. Consequences include officers\u27 use of excessive force leading to injury or death, criminal arrest and prosecution that results in deprivation of liberty, separation from the community, and the creation of a permanent criminal record that affects other rights. Although potential violence and criminalization are important reasons to avoid relying on police during mental health events, another key consideration is often ignored in the discourse: the specific heightened repercussions noncitizens face. Namely, noncitizens face the additional possibility of deportation. Because immigration law and policy link local law enforcement to the federal government, noncitizens contend with the risk of transfer from criminal to immigration custody, even if criminal charges are not imposed. The myriad problems within the immigration system-including lack of access to counsel and inadequate mental health care-increase mentally ill noncitizens\u27 likelihood of ultimately being deported. This Article calls for systemic changes to policing that account for the unique experience of noncitizens with mental illnesses. This Article also offers a set of Principles by which future proposed police reforms can be assessed

Extraterritoriality

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of European Union (EU) regulators, on the other hand. This chapter also analyzes recent developments in the EU, where there is now a state effort to make digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, we observe the emergence of a layered form of digital regulation: at the deepest level is state control of digital infrastructure, industry actors, and civil society users; layered on top is an attempt to improve the position of consumers through both digital platform regulation and competition law applied to the largest oligopolies. As a result, the earlier Chinese strategy of data localization is now complemented by a bureaucratically controlled form of extraterritorial engagement

The New Gender Perspective: The Dawn of Intersectional Autonomy in Women’s Rights

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations. This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due respect for women’s self-direction, agency, and dignity. This evolving approach is a move towards intersectional autonomy, which advances the notion that women should be the sole architects of their life plans, based on their identities and different experiences, and meaningfully participate in their societies. Creating the conditions for free and informed choices underpins current women’s rights jurisprudence. This is a break from historical notions of human rights protection solely focused on women as victims, as members of a homogenous group, and a limited binary perspective to their rights. This article discusses illustrative decisions of this tendency from the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the United Nations Committee on the Elimination of Discrimination against Women, and the United Nations Human Rights Committee, among other bodies. This article further proposes that intersectional autonomy is treated and interpreted in the future in international jurisprudence as a right, with independent content, offering guidance to states on needed laws, policies, programs, and services at the local and national levels. This human rights development is presented as essential for international law standards concerning women to be impactful and truly transformative at the national level. This article analyzes the main elements of the right of women to intersectional autonomy, and states’ negative and positive obligations in its fulfillment. The author is currently pursuing a line of research exploring contemporary understandings of the international human rights of women, and how existing legal standards should evolve based on modern scenarios and realities. This article represents a contribution to this line of scholarship. It aims to increase understanding of the connection of the concepts of intersectional discrimination and autonomy, how they can be analyzed by global and regional human rights jurisprudence, and their promise to enhance effectiveness in international law concerning women