Volume 100, Number 3

Public company boards of directors have opened up a new front in their longstanding battle with hedge fund activists by rewriting the procedural rules governing board elections. Many boards now require shareholders to make long and complicated sets of disclosures in order to nominate candidates for board elections. These disclosure requirements—contained in advance notice bylaws (ANBs)—have come under fire in the Delaware courts for being drafted so expansively that they seem like “tripwires” intended to protect incumbents against even the possibility of a proxy contest.

In this paper, I analyze modern ANBs, drawing insights from a new dataset consisting of over 14,000 full sets of bylaws filed by more than 3,800 U.S. public companies from 2004 to 2023. During this time, ANBs have become longer and more complex market-wide, and variation in disclosure requirements across firms has increased. Additionally, firms with relatively few disclosure provisions have tended to add more provisions if they are targeted by an activist. These changes in drafting practice may have significant effects on corporate governance. When ANBs are long and complex with ambiguous requirements, it is more costly for activists to launch proxy contests, and boards are more insulated from outside pressure. This reduction in accountability is likely more severe for small firms and firms with high agency costs. However, modern ANBs also provide the benefit of filtering out campaigns by unsophisticated activists and bad actors.

Legal reforms could reduce the costs associated with modern ANBs without eliminating their benefits. These include (1) requiring shareholders to approve ANB amendments, (2) requiring companies to give activists time to cure deficient nomination notices, and (3) allowing shareholders to facially challenge ANBs under an “overbreadth” theory. Recent efforts by shareholders also suggest that private ordering may curb some of the effects of modern ANBs without outside intervention.

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 governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus.

Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self- governance should turn their attention to the administrative state’s second face.

The last several years have been marked by contentious disputes about which governments represent the states of Venezuela, Libya, Yemen, Myanmar, Afghanistan, and Niger. Such disputes are far from idle curiosities—rather, they go to the core of the modern international legal order. States are the building blocks of the international legal system, but it is the consent of their governments that forms the cornerstone of international law and diplomacy. When the rightful government is contested, numerous questions emerge with enormous implications for both the states involved and the international community as a whole. Most critically, who is permitted to consent on behalf of the state—to military intervention, to treaties, to the use of state assets—or receive immunities? Who represents the state in international fora? Who is responsible for ensuring the state complies with human rights law and international humanitarian law? And what happens if different governments are recognized by different states and international organizations, as is not only possible, but common?

This Article aims to bring clarity to this debate. It begins by explaining the difference between state and government recognition. It then identifies seven important rights and responsibilities that accompany government recognition, ranging from the right to consent to military intervention to the obligation to uphold international human rights and international humanitarian law. It shows that individual states, and to a lesser extent, international organizations, are currently the primary actors in government recognition decisions. Their varying approaches to government recognition have resulted in incoherence and inconsistency that threaten to undermine international law. This Article makes the case for a new approach: granting the United Nations Credentials Committee, through the United Nations General Assembly, the power to determine the recognized government of a given state for all matters directly implicating international law. This approach would bring greater coherence to government recognition and would thereby strengthen the international legal order as a whole.

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, this analysis sheds new light on Lon Fuller’s classic functions of contractual formalities. Second, it reveals five novel functions of these formalities: diagnostic, expressive, constitutive, mapping, and experiential. Third, it shows the relevance of empirical work in behavioral science on the so-called Question Behavior Effect to our understanding of contracting behavior.

These insights from extralegal contracts are theoretically interesting in their own right and practically relevant to our understanding of legal contracts. The Article develops an account of strategic contracting behavior across legal contexts, drawing on the novel functions and Question Behavior Effect mechanisms, specifically dramatizing the impact through contract domains where enforcement is uncertain or unlikely, including preliminary agreements, surrogacy contracts, and demands for assurances.

Central banks like the European Central Bank (ECB) have started incorporating climate change considerations into their monetary policy tools. This Note refers to this phenomenon as green monetary policy (GMP). Given the crucial role of central banks and other monetary authorities in bank supervision and regulation, GMP has emerged as a solution to tackle the continued financing of fossil fuels and industries that have accelerated climate change. Among central banks, the ECB has emerged as a leader in GMP. However, the United States Federal Reserve Board (the Fed) has signaled a refusal to engage in any climate policymaking, including GMP. This paper argues that the Fed should follow the ECB by implementing GMP, given the central banks’ similar structure, general tools of monetary policy, and monetary policy-related goals. Although the Fed, unlike the ECB, does not have a secondary mandate to support general economic policies including environmental and climate-related goals, the Fed and the ECB are both mandated to promote price stability and act as a supervisor of financial risk. This Note analyzes the implications of the potential implementation of GMP by the Fed, comparing it to the ECB’s GMP, structure, and statutory mandates. It also explores key concerns and counterarguments in the literature against Fed implementation of GMP, which deal with independence, accountability, and mission creep. Despite these concerns, the Fed should continue to research climate change’s impact on macroeconomic stability and apply climate change considerations in its collateral policy, as the ECB has already done.