National Security Law Commons^™

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Weaponization Of Taxation: Sovereign Tax Immunity As A National Security Tool, Vinita R. Singh

Articles

Amidst calls to reconceptualize taxation as a national security tool, legislators are reexamining how the United States taxes foreign governments. Federal income taxation of foreign governments—what this Article terms “the law of immunity from taxation” or “sovereign tax immunity”—strongly influences whether and how foreign governments pursue investment in the United States. This impact on international business transactions indicates sovereign tax immunity has the potential to be a powerful national security tool. Yet, despite its import, the law of immunity from taxation has been underexplored and undertheorized. This Article steps into this gap in discourse by challenging the way recent legislative …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

The Warrant Exception That Isn't: Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

Faculty Articles

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans' communications are "incidentally" collected, too. Once the government has acquired Americans' communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless "backdoor" searches for Americans' private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

The Best Disinfectant: The Value Of Transparency In Information Operations, Major Ian W. Stamme

American University National Security Law Brief

America is in a state of persistent competition with nation-state adversaries, including Russia and China, which seek to subvert the post-WWII rules-based international order and undermine American legitimacy abroad. Some of this competition takes place through traditional statecraft and across each of the instruments of national power: diplomatic, informational, military, and economic. However, much of this competition also takes place in the gray zone, defined as a spectrum between the higher threshold of armed conflict and the lower threshold of ordinary statecraft. In other words, while all relations between nations involve degrees of leverage and relative advantage, gray zone conflict …

Public International Air Lawfare: China’S Use And Abuse Of The Skies., Major Emily K. Johnson

American University National Security Law Brief

Following World War II, China entered a years-long period of civil war between the Kuomintang government, which was then in power as the government of the Republic of China, and the Chinese Communist Party. After years of conflict, the Kuomintang was forced to retreat to the island of Taiwan in 1949, effectively and reluctantly ceding the Chinese mainland to the Chinese Communist Party. Despite its best efforts, the Kuomintang never regained control of mainland China in the ensuing years; however, it never dissolved and instead remained in place on Taiwan.

As a result, Taiwan, which lies a mere 80-100 miles …

War Courts: Fdr, National Security, And The War On Terrorism, Harvey Gee

Dickinson Law Review (2017-Present)

No abstract provided.

Under New Management?: Sovereign Wealth Funds And Their Ownership Of U.S. Sports Teams, Benjamin K. Moyer

Dickinson Law Review (2017-Present)

In October 2021, Saudi Arabia’s sovereign wealth fund (“SWF”) successfully purchased the English Premier League soccer team Newcastle United F.C. for $400 million. With this transaction, Saudi Arabia joined fellow Gulf countries, Qatar and the United Arab Emirates, in owning a major European soccer team through one of its state’s SWF. States have long used their SWFs to invest in foreign markets, but recent trends have transformed these originally strictly financial vehicles into political tools. Since the 2007–2008 financial crisis, many states have used their SWFs not only to produce financial gains but also to generate soft power through political …

The Administrative State's Second Face, Emily R. Chertoff, Jessica Bulman-Pozen

Georgetown Law Faculty Publications and Other Works

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that …

Anchoring Digital Sovereignty, Vivek Krishnamurthy

Publications

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet's infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world's democracies to keep the Internet free, open, and global; yet it …

Preventing Chemical And Biological Attacks: Enhanced Threats Requiring Enhanced Solutions, Alex Elliot Ottoni-Belval

Graduate Theses/Dissertations

Chemical weapons (CW) and biological weapons (BW) are becoming more dangerous for experts to employ and more accessible to amateurs. Despite CW and BW attacks throughout history that killed and maimed millions of people, the international community has failed to establish meaningful consequences to prevent them. Agreements such as the Chemical Weapons Convention and the Biological Weapons Convention vow to eliminate and reduce the effects of CWs and BWs but lack respected response precedents and capabilities. The limited and inconsistent enforcement has inadvertently allowed CWs and BWs to become plausible weapons, especially to gain asymmetric advantages, while modern developments exasperate …

Tort Law As A Remedy For Terrorism, Boaz Segal

Touro Law Review

This article examines two basic questions. First, can tort law suits against operatives in various circles of the world of terrorism be added to the toolkit of deterrence? Second, assuming that the answer to the first question is in the affirmative, how can tort law be structured to effectively deter terror operatives? With respect to the first question, despite the intuitive assumption that the relevant branches of the law in such cases are criminal, international, and counter-terrorism law rather than the various branches of private law, this article argues that tort law is capable of serving as a significant deterrent …

Rightly Dividing Jus Ad Bellum And Jus In Bello In The Israel/Hamas War, Jeffrey F. Addicott

Faculty Articles

The purpose of this paper is to: (1) review the applicable rule of law as it relates to both the initiation of warfare and the use of armed force in the execution of that warfare; and (2) apply those legal standards to the facts associated with the Israel/Hamas conflict. While this may seem an easy task – to set out unanimity in the international community – it is not. The inability to set bright lines of distinction between aggressors and those acting in self-defense is not just a failure in definition or even understanding, it is a failure to legitimize …

A Transformational Agenda For National Security, Maryam Jamshidi

Publications

Past efforts to "reimagine" national security in legal scholarship have largely avoided systematic engagement with the foundational assumptions and presumptions of the field. Challenging and critiquing those assumptions is, however, necessary to producing scholarly work that reimagines, rather than reproduces, status quo approaches to U.S. national security. This Article presents an agenda for reimagining national security through legal scholarship, which is premised on the view that challenging the national security status quo should be part of those efforts. In doing so, this agenda explores seven premises central to how U.S. national security is currently conceived of, practiced, and implemented. Moving …