Issues

How should a military officer respond to a lawful yet unethical order, unethical in the sense that it conflicts with their professional responsibilities? Army culture, scholarship, and doctrine regard officers as professionals, akin to doctors and lawyers, with expertise in the management of violence and a shared commitment to an ethical code. This code demands obedience to lawful orders to uphold civilian control of the military. But to protect against civilian misuse of the military, the code requires disobedience to unethical orders. Faced with a lawful but unethical order, the military officer is mired in a contradiction in which their professional identity compels both compliance and defiance.

This Article unearths and examines an influential interpretation of military professionalism that resolves the contradiction in favor of disobedience and invokes the Constitution as justification. In so doing, the Article makes two primary contributions. First, I document and elucidate this interpretation of professionalism through a six-month ethnography at a military college, interviews with writers of Army doctrine, a first-person account from an Army officer who defied an order regarding transgender service members, and an analysis of conflicts between Donald Trump and the Chairman of the Joint Chiefs of Staff. That interpretation emphasizes that officers take an oath not to the President but to the Constitution and its ideals. Under this oath, the Constitution becomes the core source of an officer’s professional code. And this interpretation’s stance is encapsulated in the oft-repeated phrase from Army doctrine that officers should “reject” any order if it is “illegal, unethical or immoral.”

Second, the Article then works to reform this interpretation of the military professional ethic into a more coherent theory of military disobedience. The current interpretation weighs too heavily in favor of refusal. My revisions rebalance the scales. I argue that officers should disobey an order only if it is “illegal or manifestly unethical.” Rather than hiding the refusal, officers should report it immediately to their superiors and risk punishment. This theory contributes to debates in constitutional theory over the identity of the ultimate interpreter of the Constitution. It gestures toward a larger concept of professional constitutionalism, in which expertise in abstract knowledge and adherence to an ethical code grant interpretive authority over the Constitution within a professional’s specific competence.

Corporate law has undergone a gradual transformation. Founding chief executive officers (“founder-CEOs”) and activist hedge funds increasingly dominate leading American corporations despite owning well short of a majority of shares. Founder-CEOs, through personal brands or dual-class voting structures, control firms despite having minority stakes; activist hedge funds, with single-digit holdings, press for major governance changes. We argue that these two types of shareholders, often treated as opposites, both dominate corporations through disproportionate influence rather than majority ownership. We describe these investors who dictate corporate policy through disproportionate influence as high-influence shareholders.

Delaware’s doctrinal response to high-influence shareholders has been inconsistent, generating market uncertainty. Courts have alternated between deferring to founder-CEOs under the business judgment rule and expanding the definition of control to impose “entire fairness” review. Likewise, courts have upheld poison pills against activist hedge funds to guard against creeping control, yet have struck down pills explicitly aimed at deterring activism.

To rationalize this area of law, we propose a disproportionate influence test as a doctrinal reform: whenever a board makes decisions under the influence of high-influence shareholders, courts should apply enhanced scrutiny. Likewise, when boards face the risk of disproportionate activist influence, they should be permitted to adopt defensive measures such as poison pills. Delaware’s expert judiciary is well positioned to articulate and refine the contours of disproportionate influence, while also designing cleansing procedures that boards can use to avoid heightened review.

Recent Delaware legislative amendments, aimed at enhancing predictability by narrowing the definition of control, have the effect of shielding board decisions shaped by influential but noncontrolling shareholders from meaningful review. We argue that simplified and predictable cleansing procedures can restore legal certainty, but that Delaware courts should retain a central role in evaluating when excessive shareholder influence on board decision-making warrants greater judicial scrutiny.

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground judges’ interpretations of other legal texts should not apply to texts judges themselves author.

This Article seeks to fill that gap. It provides a descriptive account of the courts’ use of what I call the “not-statutes trope”—a rhetorical device that invokes a mode of interpretation decidedly different from the textualism that characterizes most statutory interpretation today—and shows how the trope can be employed to finesse the demands of stare decisis. The Article then unpacks and analyzes the reasons that might support an interpretive distinction between judicial opinions and statutes, ultimately concluding that none of the proposed distinctions fully explains the not-statutes trope. The upshot is not that opinions should be parsed in a strictly textualist manner, however. There are good reasons to reject such an approach—reasons that bear a striking resemblance to arguments that have been levied against textualism in statutory interpretation. For textualist judges, then, the challenge is to explain why a mode of interpretation that feels so inappropriate when applied to their own writing should be applied to the work of Congress.

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte Young cause of action have a place among today’s federal court doctrines? This Article does not promise firm answers to these difficult questions. What it does offer, however, is fresh research suggesting that the Ex parte Young cause of action would not have been recognized at the Founding and was instead the product of a gradually developing equitable common law. What’s more, the Article argues, Young fits uncomfortably with modern federal courts jurisprudence, which tends to view non-statutory causes of action (like the one announced by the Young Court) with considerable skepticism.