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Volume 92.3
Noisy Factors in Law
Adriana Z. Robertson
Donald N. Pritzker Professor of Business Law, The University of Chicago Law School.

We thank Lucian Bebchuk, Alon Brav, Ryan Bubb, Ed Cheng, Quinn Curtis, Elisabeth de Fontenay, Jared Ellias, Jill Fisch, Joe Grundfest, Cam Harvey, Scott Hirst, Colleen Honigsberg, Marcel Kahan, Louis Kaplow, Jonathan Klick, Brian Leiter, Saul Levmore, Dorothy Lund, John Morley, Mariana Pargendler, Elizabeth Pollman, Roberta Romano, Paolo Saguato, Holger Spamann, George Vojta, and Michael Weber for valuable suggestions and discussions. This Article has benefited from comments by workshop participants at Columbia Law School, George Mason University Antonin Scalia Law School, Georgetown University Law Center, Harvard Law School, Stanford Law School, UC Berkeley School of Law, the University of Chicago Law School, the University of Oxford Faculty of Law, the University of Pennsylvania Carey Law School, the University of Toronto Faculty of Law, the University of Virginia School of Law, and the Washington University School of Law, as well as at the American Law and Economics Association Annual Meeting, the Corporate & Securities Litigation Workshop, the Labex ReFi-NYU-SAFE/LawFin Law & Banking/Finance Conference, and the Utah Winter Deals Conference. Robertson gratefully acknowledges the support of the Douglas Clark and Ruth Ann McNeese Faculty Research Fund. Katy Beeson and Levi Haas provided exceptional research assistance. All errors are our own.

Pat Akey
Associate Professor of Finance, University of Toronto; Visiting Professor, INSEAD.

We thank Lucian Bebchuk, Alon Brav, Ryan Bubb, Ed Cheng, Quinn Curtis, Elisabeth de Fontenay, Jared Ellias, Jill Fisch, Joe Grundfest, Cam Harvey, Scott Hirst, Colleen Honigsberg, Marcel Kahan, Louis Kaplow, Jonathan Klick, Brian Leiter, Saul Levmore, Dorothy Lund, John Morley, Mariana Pargendler, Elizabeth Pollman, Roberta Romano, Paolo Saguato, Holger Spamann, George Vojta, and Michael Weber for valuable suggestions and discussions. This Article has benefited from comments by workshop participants at Columbia Law School, George Mason University Antonin Scalia Law School, Georgetown University Law Center, Harvard Law School, Stanford Law School, UC Berkeley School of Law, the University of Chicago Law School, the University of Oxford Faculty of Law, the University of Pennsylvania Carey Law School, the University of Toronto Faculty of Law, the University of Virginia School of Law, and the Washington University School of Law, as well as at the American Law and Economics Association Annual Meeting, the Corporate & Securities Litigation Workshop, the Labex ReFi-NYU-SAFE/LawFin Law & Banking/Finance Conference, and the Utah Winter Deals Conference. Robertson gratefully acknowledges the support of the Douglas Clark and Ruth Ann McNeese Faculty Research Fund. Katy Beeson and Levi Haas provided exceptional research assistance. All errors are our own.

Mikhail Simutin
Professor of Finance, University of Toronto.

We thank Lucian Bebchuk, Alon Brav, Ryan Bubb, Ed Cheng, Quinn Curtis, Elisabeth de Fontenay, Jared Ellias, Jill Fisch, Joe Grundfest, Cam Harvey, Scott Hirst, Colleen Honigsberg, Marcel Kahan, Louis Kaplow, Jonathan Klick, Brian Leiter, Saul Levmore, Dorothy Lund, John Morley, Mariana Pargendler, Elizabeth Pollman, Roberta Romano, Paolo Saguato, Holger Spamann, George Vojta, and Michael Weber for valuable suggestions and discussions. This Article has benefited from comments by workshop participants at Columbia Law School, George Mason University Antonin Scalia Law School, Georgetown University Law Center, Harvard Law School, Stanford Law School, UC Berkeley School of Law, the University of Chicago Law School, the University of Oxford Faculty of Law, the University of Pennsylvania Carey Law School, the University of Toronto Faculty of Law, the University of Virginia School of Law, and the Washington University School of Law, as well as at the American Law and Economics Association Annual Meeting, the Corporate & Securities Litigation Workshop, the Labex ReFi-NYU-SAFE/LawFin Law & Banking/Finance Conference, and the Utah Winter Deals Conference. Robertson gratefully acknowledges the support of the Douglas Clark and Ruth Ann McNeese Faculty Research Fund. Katy Beeson and Levi Haas provided exceptional research assistance. All errors are our own.

For years, academic experts have championed the widespread adoption of the “Fama-French” factors in legal settings. Factor models are commonly used to perform valuations, performance evaluation and event studies across a wide variety of contexts, many of which rely on data provided by Professor Kenneth French. Yet these data are beset by a problem that the experts themselves did not understand: In a companion article, we document widespread retroactive changes to French’s factor data. These changes are the result of discretionary changes to the construction of the factors and materially affect a broad range of estimates. In this Article, we show how these retroactive changes can have enormous impacts in precisely the settings in which experts have pressed for their use. We provide examples of valuations, performance analysis, and event studies in which the retroactive changes have a large—and even dispositive—effect on an expert’s conclusions.

Bankruptcy Corporations Law and Economics Securities Law
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Volume 92.1
Scrutinizing Sex
Jessica A. Clarke
Robert C. and Nanette T. Packard Professor of Law, University of Southern California Gould School of Law.

Thanks to Courtney Cahill, Mary Anne Case, David Cruz, Mike Dorf, Ben Eidelson, Katie Eyer, Aziz Huq, Courtney Joslin, Craig Konnoth, Laura Lane-Steele, Chan Tov McNamarah, Laura Portuondo, Camille Gear Rich, Naomi Schoenbaum, Ann Tweedy, Ezra Young, Adam Zimmerman, and workshop participants at the 2024 West Coast Sexuality & Gender Law Workshop, Cornell Law School, and Vanderbilt Law School for feedback, and to Molly Gray for research assistance.

Critics of the Supreme Court’s equal protection jurisprudence despair that the Court conceives of discrimination as the mere classification of individuals on forbidden grounds, such as race and sex, rather than systemic patterns of subordination. On the Court’s anticlassification theory, affirmative action, which relies on overt racial or gender classifications, is generally forbidden. Such context-insensitive anticlassification rules could, in principle, extend to individuals who are members of groups often regarded with hostility and suspicion, such as transgender people. Indeed, this is how most trial courts have approached recent laws that classify individuals based on sex to exclude transgender people. However, appellate courts have refused to take anticlassification rules seriously. This Article argues that all sex classifications, like all race-based ones, ought to trigger heightened constitutional scrutiny. It draws support from the principles undergirding anticlassification rules announced by the Roberts Court, most recently in its university affirmative action decisions.

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Volume 92.1
Shedding Light on Secret Settlements: An Empirical Study of California's STAND Act
David Freeman Engstrom
LSVF Professor of Law at Stanford Law School (SLS) and Co-Director of the Deborah L. Rhode Center on the Legal Profession (Rhode Center).

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Nora Freeman Engstrom
Ernest W. McFarland Professor of Law at SLS and Co-Director of the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Jonah B. Gelbach
Herman F. Selvin Professor of Law at UC Berkeley School of Law and a Non-Resident Fellow at the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Austin Peters
Non-Resident Fellow at the Rhode Center and a Harry A. Bigelow Teaching Fellow at the University of Chicago Law School. He is also a recent graduate of SLS and holds a Ph.D. in Political Science from Stanford.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Garrett M. Wen
Recent graduate of SLS and former Civil Justice Fellow at the Rhode Center.

We are grateful to Ari Berman, Devin Flynn, and Jessica Seigel for excellent research assistance and to SLS, the Rhode Center, and the Arthur & Charlotte Zitrin Foundation for supporting this research. We are additionally grateful to The Honorable Carolyn B. Kuhl for her enormous help with this project, as well as to Timothy Dai, Eric Helland, and Daniel Kang. Finally, we are indebted to the many practitioners and judges who spoke to us to share their experiences, wisdom, and insight.

Catalyzed by the #MeToo movement, states have adopted a spate of laws restricting secret settlements. In 2018, California led the charge with the Stand Together Against Non-Disclosure (STAND) Act, which targets secrecy in the resolution of sex discrimination, harassment, and abuse cases. Transparency advocates hail these reforms as a major win for victims. Critics, meanwhile, warn that the reforms will hurt those they intend to help.

Nested within this debate sit a raft of confident, conflicting—and eminently testable—claims about what exactly happens in the wake of reform. Will defendants still settle, even if secrecy isn’t on offer? Will case filings disappear? Debate over these questions has raged since the 1980s, and, over these decades, the debate has always centered on fervent predictions regarding each.

Our findings tell a clear and consequential story. Contrary to critics’ fears, the STAND Act did not yield a sharp increase or decrease in case filings. Nor did the Act appear to significantly prolong cases or amplify their intensity. The upshot: cases still settle even when secrecy isn’t on offer. Perhaps most importantly, it appears that positive effects did come to pass.

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Volume 92.1
Reestablishing Religion
Richard Schragger
Walter L. Brown Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Micah Schwartzman
Hardy Cross Dillard Professor of Law, University of Virginia School of Law.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

Nelson Tebbe
Jane M.G. Foster Professor of Law, Cornell Law School.

For comments and discussion, we thank Arvind Abraham, Alan Brownstein, Richard Garnett, Frederick Gedicks, Linda Greenhouse, Aziz Huq, John C. Jeffries, Jr., Michael Klarman, Andrew Koppelman, Martin Lederman, Leah Litman, Ira C. Lupu, James Nelson, James Oleske, Richard Primus, Frank Ravitch, Kate Redburn, Zalman Rothschild, James E. Ryan, Elizabeth Sepper, Anna Su, Mark Tushnet, and participants in the Nootbaar Workshop at Pepperdine Caruso Law; the Workshop in Law, Philosophy, and Political Theory at the Kadish Center for Morality, Law & Public Affairs at UC Berkeley School of Law; the “Text and (What Kind of) History?” conference hosted by the Stanford Constitutional Law Center at Stanford Law School; and the Cornell Summer Faculty Workshop. Generous support was provided by the Milton and Eleanor Gould Fund at Cornell Law School. For research assistance, we thank Io Jones, Mackenzie Kubik, Leah Schwartz, and Mary Triplett.

In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. Now, the government must treat religion equally with respect to providing public benefits. But it must also grant special exemptions from regulations that burden religion. We refer to this regime as structural preferentialism. This Article offers an external, political account of changes in Free Exercise and Establishment Clause jurisprudence by analyzing them as if they were the result of political conflicts between competing interest groups. Focusing on the role of religion in political polarization, rapid disaffiliation from denominations, and shifting strategies to fund religious schools, this political perspective has explanatory and predictive power that extends beyond conventional legal arguments about text, history, and precedent. Applying this approach, we predict that structural preferentialism will transform First Amendment doctrine and provide material grounds for its own entrenchment.

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Volume 91.8
The Reconciliation Roots of Fourth Amendment Privacy
Sophia Z. Lee
Professor of Law, University of Pennsylvania Carey Law School.

I am indebted to my Penn Carey Law colleagues, fellow members of the Writers’ Bloc(k), participants in the Privacy Law Scholars Conference, the Harvard Law School Legal History Workshop, the American Bar Foundation’s Legal History Roundtable, as well as Laura Edwards, Scott Heerman, Orin Kerr, Sandra Mayson, Ajay Mehrotra, Shaun Ossei-Owusu, Nicholas Parrillo, and David Rudovsky for especially generous and helpful feedback. I am immensely grateful to Alana Bevin, Madeline Bruning, Miles Gray, Susan Gualtier, Paul Riermaier, Anna Rosenfeld, Austin Severns, Mary Shelly, and David Sowry for their phenomenal research assistance, as well as to the National Archives and Records Administration staff who made accessing case records amid a pandemic possible.

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

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Volume 91.7
Intervention and Universal Remedies
Monica Haymond
Assistant Professor of Law, Northwestern Pritzker School of Law.

For helpful comments and discussions on this Article, I am thankful to Payvand Ahdout, Rachel Bayefsky, Judge Stephanos Bibas, Josh Bowers, Upnit K. Bhatti, Sergio Campos, Maureen Carroll, Guy-Uriel Charles, Zachary Clopton, I. Glenn Cohen, Ryan Doerfler, Richard Fallon, Jonathan Gould, James Greiner, Andrew Hammond, Judge Adalberto Jordan, Brian Lipshutz, Caleb Nelson, Andrea Olson, Richard Re, William Rubenstein, Stephen Sachs, Joanna Schwartz, David Simon, Susannah Tobin, and the participants in workshops at Harvard Law School, the Annual Civil Procedure Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Junior Faculty Federal Courts Workshop, and the Association of American Law Schools Remedies Workshop. I am also grateful to the editors of the University of Chicago Law Review for their invaluable editorial assistance.

This Article examines over 500 nationwide-injunction cases and shows that a surprising participant is influencing the result: an outsider who has joined as an intervenor. Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation.

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Volume 91.7
Judicial Dark Matter
Nina Varsava
Associate Professor of Law, University of Wisconsin Law School.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Michael A. Livermore
Class of 1957 Research Professor of Law, University of Virginia School of Law.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Keith Carlson
Tuck School of Business, Dartmouth College.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Daniel N. Rockmore
Professor, Department of Computer Science, Dartmouth College; External Professor, Science Steering Committee, Santa Fe Institute.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Judicial reform aimed at rectifying historical inequalities understandably focus on increasing the number of women and people of color on the bench. This Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments: the understudied and opaque practices of judicial administration. Through an empirical study of federal appellate decisions, we find systematic gender and racial imbalances across decision panels. These imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, distorting the representation of judges in reported cases. Our findings suggest that assessing the distribution of legal power across gender and racial groups based on the numbers of judges from these groups may create an inflated sense of the influence of judges from underrepresented groups. We propose reforms to protect against the demographic biases that we uncover.

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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 91.5
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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