Today on Lawfare: May 15, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Why OpenAI’s Corporate Structure Matters to AI Development

Kevin Frazier considered how OpenAI's proposed changes to its corporate structure may contradict its mission of ensuring the safe and equitable distribution of artificial intelligence (AI) technology. Frazier highlighted current corporate governance frameworks’ inability to keep pace with AI's rapid advancements and called for a federal charter system to reduce reliance on patchwork state AI laws.

Given the stakes of OpenAI’s pursuit of AGI, confusion and complexities associated with corporate governance cannot stand in the way of thorough analysis of the lab’s seemingly fluid plans. Whether he and OpenAI can proceed with that effort depends on how the AGs of California and Delaware interpret the lab’s articles of incorporation. More specifically, those officials must determine if Altman’s latest proposal fits within the lab’s long-standing and legally binding mission to prioritize the safe development of AGI. The fact that such a consequential decision rests with two AGs exposes a key flaw in applying yesterday’s governance structures to today’s AI. This episode may result in an overdue adjustment to corporate oversight, especially with respect to AI labs working on transformative technology.

Class Actions and The Alien Enemies Act

Lee Kovarsky and D. Theodore Rave explained the issues with a Northern District of Texas judge’s decision to deny class certification in a lawsuit challenging President Donald Trump’s invocation of the Alien Enemies Act (AEA), as well as how the Trump administration may take advantage of the ruling to deport AEA detainees.

Understanding the magnitude of the mistakes requires a basic understanding of the class action rules. Under Federal Rule of Civil Procedure (FRCP) 23(a), any plaintiff class must: (1) be sufficiently numerous and have (2) common issues and (3) a typical representative capable of (4) adequate class representation. FRCP 23(b) requires that every plaintiff class be one of three types, and Rule 23(b)(2) is the provision applicable to classes seeking injunctive or declaratory relief. (The AEA class actions are Rule 23(b)(2) classes.) Even in the absence of Rule 23 certification, the near-unanimous position of the U.S. circuit courts is that the All Writs Act permits federal courts to facilitate analogous forms of representative litigation.

Trump’s 'Emergencies' Are Pretexts for Undermining the Constitution

Ilya Somin discussed Trump’s unprecedented assertion of emergency powers under the AEA and the International Emergency Economic Powers Act (IEEPA). Somin argued that these declarations violate civil liberties and called on Congress to place limits on presidentially declared emergencies to curb Trump’s abuse of power.

In the long run, constraining dangerous emergency powers requires both judicial and legislative vigilance. Courts would do well to enforce the ordinary language definition of “emergency” as a sudden unexpected crisis, not just any possible public policy problem. As a House of Representatives report leading to the enactment of IEEPA explained, “emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems.” The same goes for the IEEPA requirement that the statute can be used only in the event of an “unusual and extraordinary threat.” That, too, should be interpreted as requiring a sudden, unusual crisis—not an ongoing, normal state of affairs. Courts also should reject broad definitions of “invasion” that would enable the executive to use expansive emergency war powers in the absence of any actual military conflict.

Podcasts

Lawfare Daily: How China Might Coerce Taiwan: Daniel Byman spoke to Evan Braden Montgomery and Toshi Yoshihara about their recent Lawfare piece on how China may use coercive strategies to intimidate Taiwan. They discussed why Beijing may prefer not to invade, what a coercive approach would mean for Taiwan’s allies, and more.

Rational Security: The “Doodle Ordinance” Edition: Scott R. Anderson sat down with Natalie K. Orpett, Tyler McBrien, and Byman to discuss the week’s big national security news, including the ongoing hostilities between India and Pakistan, the recently announced ceasefire with the Houthis, reports that the Qatar royal family will gift Trump a luxury jet, and more.

Videos and Webinars

On May 16 at 4 p.m. ET, Benjamin Wittes will sit down with Anderson, Anna Bower, Roger Parloff, and James Pearce to discuss the status of the civil litigation against Trump’s executive actions, including the dismantling of federal agencies and freezing of federal funds. If you would like to be able to submit questions to the panelists and watch the livestream without ads, become a material supporter of Lawfare on Substack or Patreon. It will be livestreamed on YouTube for all other viewers. If you can’t attend the live event, the recording will be available immediately afterward on Lawfare’s YouTube channel or later on the Lawfare Podcast feed.

Announcements

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