Volume 91.5

September

2024

A basic principle of virtually every regulation to improve grid reliability and reduce power sector emissions is that market participants change their behavior when regulations make it more expensive to engage in socially harmful activities. But this assumption does not apply to large parts of the electricity industry, where investor-owned utilities are often able to pass the costs of climate and reliability rules on to captive ratepayers. The underlying problem, I argue, is that the U.S. legal system outsources investment and market design decisions to private firms that will be financially harmed if state and federal regulators pursue deep decarbonization or take ambitious steps to improve grid reliability. Structural changes such as full corporate unbundling, market liberalization, and aggressive governance reforms are needed to make climate and reliability policies more effective and easier to administer.

There are two conventional methods for resolving separation of powers disputes: formalism and functionalism. Although both approaches have been around for decades, neither has proven capable of resolving the difficult separation of powers disputes that actually arise today. This Article proposes a method built to resolve precisely such cases: interest balancing. Accepting that both branches might have power to act over a matter, interest balancing asks whether one branch’s exercise of power has infringed upon the other’s and, if so, whether such infringement is justified by a sufficiently strong interest. Despite the long history of interest balancing in individual rights cases, scholars have failed to appreciate its utility in resolving separation of powers disputes. This Article identifies interest balancing as a coherent method of separation of powers analysis that is both conceptually and practically well suited to address the separation of powers disputes that actually arise today.

Telemedicine abortions allow women to meet virtually with abortion providers and receive abortion medication through the mail, all without ever leaving their homes. This development could be instrumental in facilitating access to abortion care for women living in abortion-restrictive states after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. However, many abortion-restrictive states have moved to restrict remote abortion care and impose legal liability on out-of-state telemedicine abortion providers. This Comment outlines a novel argument that these state restrictions on telemedicine abortions violate the Dormant Commerce Clause, which prohibits state regulation that discriminates against or unduly burdens interstate commerce.

Partisan gerrymandering distorts voter preferences and undermines electoral competitiveness. Single-state redistricting reform has stalled because legislators and voters alike face diminishing incentives to reallocate power to their state’s minority party as partisan polarization increases. In the congressional redistricting context, however, interstate compacts could replace those incentives to compete with incentives to cooperate. The Constitution’s Compact Clause permits states to collaborate with each other but requires congressional consent. Yet the Constitution remains silent about which interstate agreements trigger this requirement, how Congress may provide consent, and how the Compact Clause interacts with the Elections Clause. This Comment explains how states could form redistricting compacts even without affirmative congressional approval.

Contributing to the literature on “super statutes,” I suggest that an analogy to the philosophical concept of weakness of will can illuminate circumstances under which some statutes ought to stand above others. Analogizing to philosopher Richard Holton’s account of weak will, I develop an account in which some statutes express long-term commitments, are intended to foreclose future deliberation, and enact reasons into the law. Such statutes have the status of what Holton calls “resolutions.” Congress can be weak willed when it violates such statutes, and this weak-willed action jeopardizes the advantages of enacting such statutes in the first place. I propose that courts may apply familiar canons of statutory interpretation to hold Congress accountable to its commitments.