Reforming Regulation

The debate over federal regulation has long been at the center of political contests. But surprisingly, the degree of agreement about regulation is considerable. No serious commentator denies that regulation is essential to ensuring well-functioning markets; protecting the health and safety of workers and families; and preventing fraud, corruption, and theft. Smart regulation is what makes cars safe to drive, lakes and rivers safe to swim in, and food safe to eat. At the same time, every serious commentator recognizes that poorly designed regulations can be detrimental; they can stack the deck in favor of special interests, prevent competition, and inhibit innovation

Taking Antitrust Away from the Courts

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of non-expert, unaccountable judges – set much of antitrust policy. This report provides a set of recommendations to take antitrust away from the courts – to restructure the antitrust laws and agencies in order to enhance the government’s ability to enforce antitrust laws more effectively and more transparently

The Regulation of Foreign Platforms

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism. This Article offers a new framework for thinking about national security restrictions on foreign tech platforms. A growing body of scholarship draws on principles from regulated industries, infrastructure industries, and public utilities to show how the regulation of tech platforms is not only viable but also has significant precedent and pedigree. Firms in infrastructure sectors-banking, communications, transportation, and energy-have long been subject to distinct and comprehensive regulatory regimes because they raise political- economy concerns distinct from those of ordinary tradable goods. In many of these sectors, there is also a long history of legal restrictions on the foreign ownership of, control of, and influence over platforms. This may be surprising given the contours of the contemporary tech-platform debate. Tech neoliberals object to placing any restrictions on foreign tech platforms because regulations would threaten the open internet. National security technocrats advocate for a case-by-case assessment of dangers, narrowly tailored mitigation measures, and audits to ensure compliance. Both of these dominant paradigms suffer from a variety of conceptual and practical problems, and neither takes foreign tech platforms seriously as platforms, akin to platforms in other sectors. This Article recovers the history of restrictions on foreign platforms in traditional regulated industries, critiques the dominant paradigms in the debate over foreign tech platforms, and offers an alternative: the platform-utilities paradigm. The platform-utilities approach recognizes that the regulation of platforms is important and legitimate given their distinctive political economy. Taking lessons and strategies from the history of platform restrictions, it suggests focusing on sectors before specific firms and applying structural separations rather than complex formulas for preventing national security harms. The platform-utilities approach would also require efforts at international interconnection and domestic public investments. The Article concludes by revisiting the case of TikTok with these lessons in mind

Contracting Around Citizens United

The Supreme Court’s decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by a self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than public action, is an additional approach for limiting third party campaign spending. It explains the design of a contract between opposing campaigns that is self-enforcing and restricts third party spending; identifies the conditions under which such a contract is likely to be offered and accepted; shows how political dynamics push third parties and campaigns to adhere to the contract’s spending restrictions; and discusses possible loopholes and challenges. While private ordering through a self-enforcing contract might seem like wishful thinking, precisely this kind of contract, “The People’s Pledge,†succeeded in keeping out third party spending on television, radio, and internet advertising in the most expensive Senate race in history, the 2012 Brown-Warren race in Massachusetts. Since then, this kind of contract has been adopted in two other federal congressional races and debated and offered in a wide range of other races. In the context of political gridlock in Congress, the emergence of a private ordering option to achieve campaign finance reform goals is significant. This Essay analyzes the conditions under which private ordering, rather than public law reform, can limit third party spending in elections. It draws on examples, particularly that of the original “People’s Pledge,†to illustrate the general parameters of these contracts, and it considers the implications of these contracts for election law and policy

Credibility and War Powers

In late August 2013, after Syrian civilians were horrifically attacked with sarin gas, President Barack Obama declared his intention to conduct limited airstrikes against the Syrian regime of President Bashar al-Assad. A year earlier, President Obama had announced that the use of chemical weapons was red line for the United States. Advocates for military action now argued that if the credibility of American threats diminished, dictators would have license to act with impunity. President Obama himself seemed to embrace this justification for action. The international community’s credibility is on the line, he said in early September. And America and Congress’s credibility is on the line. For all the talk of credibility, political scientists have offered devastating critiques of credibility arguments in the context of military threats. They have demonstrated not only that the concept is often deployed in incomplete and illogical ways but also that as a historical matter, a country’s credibility based on its reputation and past actions has little or no effect on the behavior of opponents in high-stakes international crises. In the crises in the run-up to World War I, in the Berlin crises of the late 1950s and early 1960s, and even in the crises leading to World War II, threats from countries that had previously backed down were not seen as less credible by their opponents. In some cases, the threats were even thought to be more credible. For constitutional lawyers, this research should be particularly troubling because credibility has migrated from foreign policy into the constitutional law of war powers. In a series of opinions, including on Somalia (1992), Haiti (2004), and Libya (2011), the Justice Department’s Office of Legal Counsel (OLC) has argued that the credibility of the United Nations Security Council is a national interest that can justify presidential authority to use military force without prior congressional authorization. This Essay argues that the credibility justification for the use of force should be removed from the constitutional law of presidential war powers. Incorporating credibility as one of the national interests that justify presidential use of force expands the President’s war powers significantly without a legitimate policy justification

The Political Economy of the Removal Power

In the years leading up to the 2008 financial crisis, financial institutions targeted communities of color with expensive and risky subprime mortgage products. Hundreds of thousands of Black and Hispanic families were charged more for mortgages than their white counterparts or steered into expensive subprime loans, even though they qualified for cheaper prime loans. Over time, financial institutions like Countrywide pushed these toxic loans on more and more homeowners and expanded subprime lending throughout the country. When the music finally stopped in 2008, millions of families lost their jobs and their homes, and nearly $ii trillion in household wealth was wiped out. Over the next two years, Congress would work to pass financial reform legislation that was designed to address a variety of risks and dangers in the financial markets. In 2007, then-Professor Elizabeth Warren proposed a federal agency to regulate consumer financial products. For years, Warren had criticized predatory tricks and traps in mortgages, credit cards, and other financial products. One-off, piecemeal reforms had failed, and Americans were drowning in debt. Increasingly, one bad medical diagnosis or the loss of a job would mean bankruptcy and a family\u27s total economic devastation. Warren argued that other consumer products, like toasters, were regulated at the federal level. Financial products were not so different. By 2009, Congress and the President picked up Warren\u27s proposal, and they made it one of the central parts of the coming financial reform package

Counterinsurgency and Constitutional Design

Few think of counterinsurgency as linked to constitutional design. Counterinsurgency is bottom-up; constitutional design is top-down. Counterinsurgency is military; constitutional design is political-legal. Counterinsurgency is temporary, transitional, and tactical, designed to stabilize society; constitutional systems come later and are permanent, constant, and normal. But the conflicts in Iraq and Afghanistan demonstrate the fallacy of these perceptions. Counterinsurgency and constitutional design took place simultaneously, they required high-level political agreement and ground-level acceptance, and they involved politics, law, and security. Iraq and Afghanistan demonstrate that these two enterprises are not different and disconnected, but rather intricately interconnected and complementary. This Note explores this interconnection, showing how constitutional design and counterinsurgency can influence each other. Part II argues that counterinsurgency is a form of constitutional design. Counterinsurgents have considerable influence over who participates in the constitution-making process. In addition, because counterinsurgency operations can significantly change ground-level power dynamics, and thus the probability of ratification, counterinsurgency may indirectly constrain or expand constitutional design possibilities. Finally, counterinsurgents seek to build a legitimate, stable order within society and to enable public power - elements of what scholars consider the informal constitution of a state. Part III argues that constitutional design can be a form of counterinsurgency. If a constitution is designed with the goals, lessons, and elements of counterinsurgency in mind, the constitution may actually facilitate and accelerate the realization of the counterinsurgent\u27s goals. Part III first provides reasons for including counterinsurgency-inspired design structures in constitutions and then presents examples of such structures. Part IV concludes

The Use and Abuse of Foreign Law in Constitutional Interpretation

This article provides an exhaustive typology of the uses of foreign law in order to provide insight into whether foreign law can be appropriately used in constitutional interpretation, when it can be used, and what the stakes and parameters are in each case. In doing so, the article addresses two significant problems in the debate on foreign law. First, much of the commentary has focused on the justifications for using foreign law and the principled or practical arguments against using foreign law. But the focus on the why of foreign law has obscured the more basic question about the ways in which foreign law can be used, that is, the how of foreign law. Focusing on the why of foreign law threatens to generalize arguments into debates on foreign law as a whole when debating particular methods of foreign law usage may be more helpful. Some methods of use may be more easily justified and others totally unjustifiable. The second problem is one of exhaustiveness. Some scholars have recognized the need to focus on the how of foreign law, but they have identified only a limited set of ways in which foreign law could be used. This limited categorization of foreign law usage prevents clear evaluation of which uses are appropriate. This article\u27s typology demonstrates that most uses of foreign law are not problematic, and as a result, that the foreign law debate should focus specifically on the few uses that are potentially problematic, rather than on foreign law more generally

The Origins of Legislation

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to demystify important elements of the legislative drafting process. Descriptively, it provides a comprehensive typology of the origins of legislative drafts, outlining the many ways in which drafts emerge. At times, the descriptive insights are surprising: for example, when a committee drafts legislation in a bipartisan manner, it sometimes uses a “legislative notice-and-comment” process, sharing a draft publicly prior to its introduction so that stakeholders can review the draft and comment. At other times, the descriptive insights add substantial complexity to our accounts. For example, the executive often drafts legislation. This creates a principal-agent drafting problem between Congress and the Executive parallel to the principal-agent problem that emerges with delegation, but operating prior to a legislative enactment. The Article goes on to explain why members of Congress pursue different drafting processes and to explore the consequences of variety in legislative drafting for theories of statutory interpretation, for identifying reliable sources of legislative history, and for arguments about congressional delegation and judicial deference to agencies