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Volume 91.6
Against Associational Standing
Michael T. Morley
Sheila M. McDevitt Professor, Florida State University (FSU) College of Law.

The authors are grateful for helpful feedback and suggestions from Aaron Bruhl, John C. Harrison, Carissa Hessick, Doug Laycock, Jake Linford, Darrell Miller, Caprice Roberts, and the participants in the Notre Dame Remedies Roundtable, the Standing Doctrine Conference at the Constitutional Law Institute at the University of Chicago, the Florida State University (FSU) College of Law Faculty Workshop, and the Remedies Works-in-Progress Session at the 2024 Annual Meeting of the Association of American Law Schools (AALS).

F. Andrew Hessick
Judge John J. Parker Distinguished Professor of Law and Associate Dean, University of North Carolina School of Law.

The authors are grateful for helpful feedback and suggestions from Aaron Bruhl, John C. Harrison, Carissa Hessick, Doug Laycock, Jake Linford, Darrell Miller, Caprice Roberts, and the participants in the Notre Dame Remedies Roundtable, the Standing Doctrine Conference at the Constitutional Law Institute at the University of Chicago, the Florida State University (FSU) College of Law Faculty Workshop, and the Remedies Works-in-Progress Session at the 2024 Annual Meeting of the Association of American Law Schools (AALS).

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective litigation, but rather ensure that such cases proceed through the proper channels (i.e., Rule 23) while preventing a range of unnecessary procedural, preclusive, remedial, and other complications.

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Volume 91.6
Administrative Subordination
Bijal Shah
Professor of Law and Provost Faculty Fellow, Boston College Law School.

I am grateful to Nick Almendares, Sahar Aziz, Monica Bell, Anya Bernstein, Emily Bremer, Emily Chertoff, Charlton Copeland, Blake Emerson, Sheila Foster, Andrew Hammond, Emily Hammond, Chris Havasy, Lisa Heinzerling, Sharon Jacobs, Amy Kapczynski, Joy Milligan, Athena Mutua, Eang Ngov, David Noll, Anne Joseph O’Connell, Nick Parrillo, Eloise Pasachoff, Aziz Rana, Ed Rubin, Fred Smith, David Zaring, and participants in the Yale Law School Administering a Democratic Political Economy Conference; Duke University School of Law Critical Legal Collective Convening; University of Minnesota Administrative Law New Scholarship Roundtable; American Constitution Society Junior Scholars Public Law Workshop; National People of Color Legal Scholarship Conference on Undoing Democracy; Association of American Law Schools Critical Leadership, Accountability, and Justice Within Organizations Panel; Power in the Administrate State Workshop; Critical Approaches to Public Law Workshop; George Washington University Law School Constitutional Law Colloquium; and the Indiana Maurer School of Law Workshop on Administrative Justice. Many thanks to Maxine Hart and Madeleine Kausel for their research assistance. All errors are my own.

Much of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration. This Article’s prescription is for institutional redesign. First, from the top down, Congress could utilize appropriations and pointed procedural interventions to influence how agencies exercise discretion. Second, from the bottom up, the President or agencies themselves could instigate efforts to use more accurate information and more meaningful process. Third, a focus on reviving a government of small, discrete agencies could constrain administrative discretion in ways that encourage agencies to rebalance their priorities.

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Volume 91.6
Vacancy Taxes: A Possible Taking?
Christine Dong
B.A. 2017, University of Chicago; J.D. Candidate 2025, The University of Chicago Law School.

Vacancy taxes are an increasingly popular solution to the paradoxical problem of high housing demand coupled with high vacancy. Soon after San Francisco adopted a vacancy tax with one of the broadest definitions of vacancy, property owners lobbed a constitutional challenge under the Takings Clause, taking advantage of a moment of doctrinal instability. This Comment seeks to make sense of how this and similar potential challenges would fare. Using the San Francisco vacancy tax as a concrete example, this Comment evaluates possible arguments that the tax effects a regulatory or physical taking. It contends that even this stringent vacancy tax would not be a taking, and highlights elements of a different vacancy tax or regulation that may tip the scales of this analysis. It explores original understandings of land use (and nonuse) regulations to argue that fines levied on the nonproductive use of property are a background principle of property law that generally precludes the conclusion that vacancy taxes are takings.

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Volume 91.6
TikTok the Tortfeasor: A Framework to Discuss Social-Platform Externalities and Arguments Favoring Ex Ante Mitigations
Karan Lala
B.S. 2018, University of California, San Diego; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Omri Ben-Shahar and the editors and staff of the University of Chicago Law Review for their thoughtful advice and support.

This Comment reviews Section 230 jurisprudence to develop a novel taxonomy for claims against social media platforms. It divides claims against platforms into three categories—content specific, content dependent, and content agnostic—based on the proximity of the alleged injury to user-generated content and the degree of the platform’s participation. This Comment also formalizes a remedies test that courts can use to distinguish legitimate content-agnostic claims from those in name only. Armed with this vocabulary, this Comment turns its attention to a number of cases pending against social platforms. Applying the remedies test, it determines that a handful of pending allegations give rise to legitimate content-agnostic claims. Noting that content-agnostic injuries are material but not yet fully understood, this Comment ultimately argues that an ex ante regulatory regime operationalized by an expert agency is better suited to address social-platform externalities than an ex post liability regime.

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Volume 91.6
Rogue AI Patents and the USPTO's Rejection of Alice
Joshua A. Zuchniarz
B.S. 2017, University of Miami; Ph.D. 2023, University of Chicago; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Jonathan S. Masur, Tanvi Antoo, and all of the University of Chicago Law Review editors and staff for productive comments and feedback.

AI inventions have taken the world by storm. Many of these inventions are protected by patents. Yet a large number of AI patents are flawed, prone to invalidation in court. This Comment asks which AI inventions ought to receive patents. It concludes that AI methods and models should be patent eligible because they are likely to be incentivized by patents and unlikely to chill follow-on innovation. This Comment further argues that both the USPTO’s guidance and much of the Federal Circuit’s recent eligibility case law are inconsistent with finding these inventions patent eligible. However, the Federal Circuit demonstrated an understanding of eligibility that would allow patents for many AI methods and models in its 2016 McRO, Inc. v. Bandai Namco Games America Inc. decision. This Comment concludes by advocating that the Federal Circuit explicitly apply the holding of this case to hold that an AI invention is patent eligible at the first opportunity.

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Volume 91.5
Outsourcing Electricity Market Design
Joshua C. Macey
Associate Professor of Law, Yale Law School.

I am grateful to Hajin Kim, Sharon Jacobs, William Boyd, Allison Gocke, Sharon Jacobs, Brian Richardson, Heather Payne, Kristen van de Biezenbos, Jacob Mays, Shelley Welton, Jim Rossi, Hannah Wiseman, David Weisbach, Jonathan Macey, Taisu Zhang, John Morley, Daniel Markovits, Abbe Gluck. Thanks, also, to workshop participants at The American Law and Economics Association, Columbia, the University of Chicago, the University of Texas, the University of Virginia, Yale, and the Penn-Berkeley Energy Law Conference. Thanks, also, to Terra Baer, Elias van Emmerick, Ellie Maltby, and Elizabeth Martin for outstanding research support.

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.

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Volume 91.5
Balancing Interests in the Separation of Powers
Shalev Gad Roisman
Associate Professor of Law and Distinguished Early Career Scholar, University of Ari-zona James E. Rogers College of Law. The author served in the Office of Legal Counsel in the U.S. Department of Justice from 2015 to 2017.

Thank you to Payvand Ahdout, Zohra Ahmed, Haley Anderson, Jane Bambauer, David Barron, Curtis Bradley, Christine Chabot, Josh Chafetz, Andrew Coan, Blake Emerson, Dan Epps, Jack Goldsmith, Vicki Jackson, Xiaoqian Hu, Alyssa King, Joanna Langille, Eunice Lee, Daryl Levinson, Asaf Lubin, Joshua Macey, Toni Massaro, Fatma Marouf, Shefali Milczarek-Desai, Lindsay Nash, Diana Newmark, Daphna Renan, Noah Rosenblum, Alan Rozenshtein, Jonathan Shaub, Glen Staszewski, Stephanie Stern, Ilan Wurman, and participants in the University of Arizona Law Fall Faculty Workshop, the AALS New Voices in Administrative Law Session, the ACS Junior Scholar Public Law Workshop, and the Power in the Administrative State Workshop. Thank you to Vinny Venkat, Jacob Marsh, Bella Stoutenberg, and Molly Case for terrific research assistance and to the editors of the University of Chicago Law Review for superb editorial assistance. The views expressed are the author’s own and are based entirely on publicly available materials.

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.

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Volume 91.5
State Telemedicine Abortion Restrictions and the Dormant Commerce Clause
Laura Hu
B.A. 2019, The University of Chicago; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Bridget Fahey and the editors and staff of the University of Chicago Law Review for their invaluable feedback and insight.

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.

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Volume 91.5
Mutually Assured Democracy: Cooperating Under the Compact Clause to Combat Partisan Gerrymandering
Samuel P. LeRoy
B.S. 2018, University of Illinois; M.P.P. 2020, University of Michigan; J.D. Candidate 2025, The University of Chicago Law School.

I thank Professor Bridget Fahey, Professor Curtis Bradley, and my colleagues of the University of Chicago Law Review for their generous advice. I dedicate this Comment to my parents, Janet and Michael LeRoy, who continue to inspire a lifelong love for learning. All errors are my own.

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.

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Volume 91.5
Weak-Willed Legislatures and Statutory Interpretation
Helen Zhao
B.A. 2021, Yale University; MPhil 2022, University of Cambridge; J.D. Candidate 2025, University of Chicago Law School.

I would like to thank Professor Brian Leiter and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insights.

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.

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Volume 91.4
Legitimizing Agencies
Brian D. Feinstein
Assistant Professor, The Wharton School of the University of Pennsylvania.

I thank Vince Buccola, Drew Carton, Peter Conti-Brown, Blake Emerson, Yuval Feldman, Christopher Havasy, Luke Herrine, Sarah Light, James Macleod, Susan McCafferty, Katy Milkman, Jennifer Nou, Eric Orts, Ryan Sakoda, Maurice Schweitzer, Stuart Shapiro, Austin Smith, Roseanna Sommers, Jed Stiglitz, Nina Strohminger, Anirudh Tiwathia, Daniel Walters, David Zaring, and workshop participants at the University of Michigan Ross School of Business, the Chicago/Michigan Psychology & Lab Studies Group, and the 2023 Conference on Empirical Legal Studies for helpful comments. I also thank James Morrison, Anna Sheu, Laura Weiner, Jessica Yuan, and Jessie Zou for excellent research assistance. I gratefully acknowledge the Wharton School Dean’s Research Fund and the Wharton Behavioral Lab for financial support.

The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. Despite the pitch of debate in elite legal circles, however, little is known about the views of ordinary citizens—the very people whose beliefs constitute popular legitimacy. This Article provides evidence of Americans’ actual views concerning what features contribute to agencies’ perceived legitimacy. It presents the results of a set of experiments in which each participant views a policy vignette with varied information concerning the structures and procedures involved in generating the policy. Participants are then asked to assess, by their own lights, the policy’s legitimacy. The results support the century-old idea that empowering politically insulated, expert decision-makers legitimizes agencies. This finding implies that, for proponents of a robust administrative state, an independent and technocratic civil service is worth defending. There also is some evidence that public participation in agency decision-making bolsters agencies’ perceived legitimacy. By contrast, the theory that greater presidential involvement enhances legitimacy receives no support.

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Volume 91.4
The Information Costs of Exclusion
Jonathan Sarnoff
Law Clerk to the Hon. Michael A. Chagares, Chief Judge, United States Court of Ap-peals for the Third Circuit; Ph.D., Department of Philosophy, University of Michigan at Ann Arbor (2022); J.D., Yale Law School (2020).

The views expressed in this Article are those of the author alone; they do not reflect the opinions of the federal judiciary or of any of its members. An earlier version of this Article was presented in spring 2020 to the Yale Law School Center for Private Law Student Scholarship Workshop, and in fall 2020 to the University of Michigan Philosophy Department Candidacy Seminar. I am grateful to Dhruv Aggarwal, Lingxi Chenyang, Shlomo Klapper, Mitchell Jonston, Daniel Markovits, Przemysław Pałka and Maren Woebbeking for their comments on the former occasion, and to Lingxi Chenyang, Mercy Corredor, Brendan Mooney, Sumeet Patwardhan, Caroline Perry, Ariana Peruzzi, Laura Soter, Alvaro Sottil de Aguinaga, Angela Sun, Jamie Tappenden, and Elise Woodard for their comments on the latter occasion. In addition, I would like to thank Rachel Brown, Gabriel Mendlow, Henry Smith, Brian Weatherson, and James Whitman for the generous, detailed, and enormously helpful advice they gave me during the process of revising this Article, which has benefited it tremendously. Lastly, I would like to thank Robert Ellickson, who supervised this project at its origin and whose guidance substantially influenced the form it takes today.

The appropriate scope of the right to exclude is among the most contentious topics in property theory. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because everyone must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to keep off property unless the owner allows them on, is simple enough to be understood easily by those who must respect it. This Article defends an alternative analysis of how the information costs of property bear on the proper scope of exclusion. Legal rules generate two kinds of information costs: the costs of learning rules and the costs of applying them. While simpler rules may be easier to learn, they need not be easier to apply. Instead, a rule is easy to apply if individuals can easily determine whether a particular action would violate it. Once the costs of applying the right to exclude are considered, I claim, the law sometimes reduces information costs not by respecting exclusion but rather by restricting it. Information costs do not uniformly support greater exclusion, then, as exclusion’s defenders have argued; rather, those costs sometimes favor restricting it.