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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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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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The Truth of Erasure: Universal Remedies for Universal Agency Actions
T. Elliot Gaiser

T. Elliot Gaiser is the Solicitor General of Ohio. He previously clerked for Associate Justice Samuel A. Alito, Jr., at the Supreme Court of the United States; for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit; and for Judge Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. He holds a J.D. from The University of Chicago Law School and a B.A. in Political Economy and Rhetoric & Public Address from Hillsdale College.

Mathura Sridharan

Mathura J. Sridharan is the Director of Ohio’s Tenth Amendment Center and serves as a Deputy Solicitor General in the Ohio Attorney General’s Office. She previously clerked for Judge Steven J. Menashi on the U.S. Court of Appeals for the Second Circuit and Judge Deborah A. Batts on the U.S. District Court for the Southern District of New York. She holds a J.D. from New York University School of Law, and an M.Eng. in Electrical Engineering & Computer Science and a B.S. in Electrical Engineering & Computer Science and Economics from Massachusetts Institute of Technology.

Nicholas Cordova

Nicholas A. Cordova is an associate at Boyden Gray PLLC and former Simon Karas Fellow to the Ohio Solicitor General. He previously clerked for Judge Paul B. Matey on the U.S. Court of Appeals for the Third Circuit. He holds a J.D. from Harvard Law School and a B.A. in Political Science from Waynesburg University.

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called “universal” injunctions: the proper scope of remedies under the Administrative Procedure Act (APA) and other statutes providing for judicial review of agency action is “erasure.” This Article aims to save scholars’ recent progress in showing the legality of stays and vacatur under the APA from muddled thinking that conflates these forms of relief with other universal remedies that face growing criticism.

Administrative Law Constitutional Law
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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.

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Volume 91.3
The Strange Career of Antisubordination
Justin Driver
Robert R. Slaughter Professor of Law, Yale Law School.

I received insightful feedback on this project from Kate Andrias, Jack Balkin, William Baude, Samantha Bensinger, Gregory Briker, Jonathan Entin, Laura Ferry, Owen Fiss, Heather Gerken, Julius Getman, Emma Kaufman, Randall Kennedy, Sanford Levinson, Jonathan Masur, Samuel Moyn, Kerrel Murray, Lucas Powe, John Rappaport, David Schleicher, Reva Siegel, Jordan Thomas, and Melvin Urofsky. I received excellent research and editorial assistance from Ella Bunnell, Rosemary Coskrey, Sydney Daniels, Sean Foley, Alex Friedman, Liam Gennari, Remington Hill, Eric Jjemba, Jim Huang, Alexandra Johnson, Charlotte Lawrence, Zoe Li, Romina Lilollari, Henry Wu, and Logan Wren. I am grateful to the University of Chicago Law Review’s editorial team for deftly shepherding this Article to publication.

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. On no issue have these competing perspectives clashed more intensely than affirmative action. This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

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Volume 91.3
Authoritarian Privacy
Mark Jia
Associate Professor, Georgetown University Law Center.

This Article was supported by outstanding research assistance from Margaret Baughman, Qi Lei, Yizhou Shao, and Joanna Zhang. For generous comments, I thank William Alford, Ngoc Son Bui, William Buzbee, Anupam Chander, Habin Chung, Donald Clarke, Julie Cohen, Rogier Creemers, Xin Dai, Hualing Fu, Tom Ginsburg, Jamie Horsley, Nicholas Howson, Wei Jia, Thomas Kellogg, Margaret Lewis, Benjamin Liebman, Daniel Rauch, Shen Kui, Yueduan Wang, Changhao Wei, Katherine Wilhelm, Angela Zhang, Jeffery Zhang, Taisu Zhang, as well as commenters at George Washington University’s Northeast Corridor Chinese Law Workshop, Oxford University’s Programme in Asian Laws Series, and Georgetown University Law Center’s Summer Faculty Workshop, Technology Law and Policy Colloquium, and S.J.D. and Fellows Seminar. Thanks finally to the insightful editors at the University of Chicago Law Review, especially Max Rowe, Jonathan Jiang, and Andy Wang.

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

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