In response to an emerging electricity sector, Congress passed the Federal Power Act (FPA) in 1935 and enshrined a division of jurisdiction between the federal government and the states. Federal jurisdiction would control wholesale electricity and transmission while state jurisdiction would control retail electricity. While Congress intended to establish a jurisdictional bright line...
Election Speech and Collateral Censorship at the Slightest Whiff of Legal Trouble
Collateral censorship occurs when an intermediary refuses to carry a speaker’s message for fear of legal liability. Election speech intermediaries are prone to engage in collateral censorship because their interests do not align with the interests of election speakers, yet the common law places liability on intermediaries and speakers alike. But collateral censorship is not a problem unique to...
The Misuse of Asian Americans in the Affirmative Action Debate
Opponents of affirmative action often claim that Asian Americans are injured by affirmative action. This argument is both inaccurate and strategic rather than motivated by real concern for Asian Americans. This Essay explains how Asian Americans in fact benefit from affirmative action. It also exposes the way that framing opposition to affirmative action as concern for Asian Americans serves the...
The Indignities of Color Blindness
Introduction Imagine an applicant to a public university who is an accomplished pianist, grew up in a rural town in central Texas, and is African American. Each of these aspects of her background has played a formative role in shaping her identity. Now imagine that the university’s admissions office, which is reviewing her application, has been directed not to consider her race or the race of...
Why Race Matters in Physics Class
Introduction The following is an excerpt from the transcript of oral argument in Fisher v. University of Texas at Austin,1 argued before the U.S. Supreme Court on December 9, 2015. Gregory G. Garre represented the University of Texas. Chief Justice Roberts: What—what unique—what unique perspective does a minority student bring to a physics class? Mr. Garre: Your Honor— Chief Justice Roberts:...
Lessons From Social Science for Kennedy’s Doctrinal Inquiry in Fisher v. University of Texas II
This Essay considers the lessons social science research brings to the constitutional inquiry in Fisher II, and to Justice Kennedy’s decisive vote in particular. The author summarizes empirical findings demonstrating the harm that further restrictions on the consideration of race in admissions would bring to student body diversity and to institutions’ ability to support the success of all...
Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law
Decarbonizing the electric power sector will be central to any serious effort to fight climate change. Many observers have suggested that the congressional failure to enact a uniform system of electricity regulation could stifle the transition to a low-carbon electricity grid. This Article contends that the critique is overstated. In fact, innovation is occurring across different aspects of the...
Protecting Disfavored Minorities: Toward Institutional Realism
Constitutional theorists in the United States once believed courts could protect politically disfavored minorities from the excesses of democracy. Eventually, many lost faith in constitutional reform through litigation, as they saw courts fail to effectively implement rights protections. Given the judiciary’s institutional limitations, it appeared the only reliable way to secure constitutional...