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Public participation has long been a cornerstone of administrative law. Many administrative procedures require participation, and underlying normative theories embrace participation as a way to legitimate the administrative state. It is well recognized that interest groups dominate this participation. Yet the implications of interest-group dominance have been largely overlooked. Administrative...

Can otherwise constitutionally protected speech lose its protection because of the speaker’s supposedly improper purpose? The Supreme Court has sometimes said “no”—but sometimes it has endorsed tests (such as the incitement test) that do turn on a speaker’s purpose. Some lower courts have likewise rejected purpose tests. But others hold that, for instance, a purpose to annoy or distress can turn...

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...

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...

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...

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...

This Article argues that the emergence of algorithmic trading raises a significant challenge for the law and policy of insider trading. It shows that securities markets are dominated by a cohort of “structural insiders,” namely a set of traders able to utilize close physical and informational access to trade at speeds measured in milliseconds and microseconds, a practice loosely termed high...

The unprecedented U.S. system of mass incarceration and the intensifying merging of criminal and immigration law have devastated individuals, families, and entire communities, especially poor communities of color. Noncitizens who come into contact with the criminal justice system are too often stripped of even the slightest chance of reintegration; returning home means removal to their countries...

The U.S. Supreme Court’s jurisprudence on Parker state-action immunity from federal antitrust laws has remained largely muddled since its inception. The Court recently attempted to bring clarity to the doctrine in North Carolina Board of Dental Examiners v. FTC, holding that state occupational licensing boards with a controlling number of active market participants are subject to the same active...

This Comment uses a recent prisoners’ rights class action that challenges solitary confinement to demonstrate the way in which class action mootness procedure disadvantages inmates. With courts divided on how they should evaluate plaintiffs’ claims that are mooted before the court reaches a class certification decision, this unsettled area leaves prisons with creative ways to moot named...

Young people locked up in juvenile prisons have an enormous need for mental healthcare, one which juvenile prisons have consistently found themselves unable to meet. As a result, many incarcerated young people end up being denied the care they deserve. Yet for years, courts have implemented a confused, haphazard doctrine to evaluate youth right to mental healthcare claims—likely because the quasi...

A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question and plenary power doctrines to deprive tribes of meaningful judicial review when Congress has acted to the tribes’ detriment. Courts have applied these doctrines in tandem so as to frequently leave tribes without meaningful judicial recourse against breaches of the...

Deportation of so-called “criminal aliens” has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants’ rights advocates, conventional wisdom holds that if deportations must occur, “criminal aliens” should be the first to go. A voluminous “crimmigration” scholarship...

The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the equitable remedies and remedy-related doctrines that presently exist in American law can be understood as a system. The components of the system fall into three categories: (1) the equitable remedies themselves, (2) equitable...