The Public Law of Public Utilities

Vol. 42:179This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that modern efforts to invoke Article III to restrict agency adjudication do not reflect a consistent understanding of the public-private distinction, but instead revive the distinction in some contexts (adjudication) but not others (rulemaking). Third, we provide a new framework for understanding the Supreme Court’s turn to structural arguments to check administrative agencies. On the last point: for nearly five decades prior to 1935, courts used rights-based arguments, not structural ones such as the nondelegation doctrine, to deduce the scope and content of the legislative, executive, and judicial powers. Once the Supreme Court abandoned its freedom-ofcontract jurisprudence, it was a public utility case that breathed new life into the nondelegation doctrine. Public utilities were a natural battle ground for reshaping the public law of administration. Like today, private rights, delegation, and agency adjudication were all central preoccupations of this public utility moment, but the frameworks courts advanced to answer these puzzles have vanished from our modern debate. Today’s administrative law thus reflects an ad hoc revival of public utility legal concepts, and it reinvents these concepts such that they bear little resemblance to their public utility genealogy

Moody v. NetChoice: The Supreme Court Meets the Free Speech Triangle

Concerned that large social media companies discriminated against conservative voices, Texas and Florida passed laws regulating how social media companies could moderate posts, sanction speakers, and promote or demote content. Conservative politicians in the two states were deeply suspicious of the large social media companies headquartered in the Bay Area of liberal California. They believed that these social media companies, Meta, YouTube, and Twitter, were unfairly removing conservative speech, demoting it in social media feeds, or de-platforming conservative speakers. Texas and Florida sought to restore online ideological balance and prevent what they considered censorship by the companies’ progressive employees. The states argued that in curating and organizing content social media companies were not actually engaged in First Amendment speech; they were only engaged in private censorship. In the alternative, the states argued that they could treat social media platforms as common carriers or otherwise subject the platforms to nondiscrimination rules to promote a diversity of ideas and opinions. Because the state statutes were so broadly (and badly) drafted, the Supreme Court did not rule on the merits but instead sent the cases back to the lower courts with instructions about the First Amendment rights of social media companies. Justice Elena Kagan’s majority opinion in Moody v. NetChoice, LLC4 held that when social media companies curate posts, they make “editorial judgments” and create an “expressive product” protected by the First Amendment.5 The Supreme Court began considering internet speech cases almost three decades ago, in Reno v. American Civil Liberties Union.6 But social media companies as we know them today did not exist in 1997. Moody was the Court’s first attempt at explaining how the First Amendment applied to the business models of the social media companies that now dominate the digital public sphere. Moody was also the Court’s first attempt at thinking through the problems of a digital public sphere in which states are no longer the only governors and regulators of free expression and must contend with powerful global corporations that shape public opinion and dominate democratic life. Finally, Moody also offered brief hints about how the First Amendment might apply to content produced by algorithms and artificial intelligence (AI). In this Article, I explain how the digital public sphere differs from the world that produced most of the Court’s First Amendment doctrine. I then explain how the Court both recognized and failed to recognize those changes. Moody’s reasoning displays many of the limitations of American First Amendment doctrine. It asks whether states are abridging the speech of platforms, but it does not consider the free speech interests of end users. Focusing on platforms as speakers, it plays less attention to platforms as governors. Although Moody does not close the door on regulations designed to check the governing power of digital platforms, it bestows significant First Amendment protections on the ways that social media platforms govern end users

How Epic v. Apple Operationalizes Ohio v. Amex

Vol. 42:1The Supreme Court’s landmark decision in Ohio v. American Express (Amex) remains central to the enforcement of antitrust laws involving digital markets. The decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform; that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet their burden of production to establish harm to competition. Enter Epic v. Apple (Epic): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to evidence of both the procompetitive and anticompetitive effects, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out- of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct

The SCALES project: Making federal court records free

Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org

Removing the Bias of Criminal Convictions from Family Law

Vol. 35:1What happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors? The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants' lives, relationships, families, and communities. Judges' implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships

Valuing ESG

Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once non-pecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at $100 in its charter. The company would use that valuation as a metric in its assessment of projects, pursuing only those projects that would remain "profitable" after adjusting its forecasted cashflows by subtracting$100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than $100 per ton of carbon saved. Similarly, the fund might pick stocks for investment based on potential profitability at a carbon price of$100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing

The Founders' Common-Law Empire

Vol. 35:3The Northwest Ordinance of 1787 once had a sure spot in our constitutional canon. The New Deal Congress celebrated it as" one of the greatest civil documents of all time," in part because it marked" a complete change in the method of governing new communities formed by colonization." Rejecting the European model of" second-class colonies," the Ordinance instead framed an" empire of liberty" that treated old states and new territories as equals. That view still has prominent defenders: Professor Akhil Amar" celebrates" the Ordinance's" strong anti-imperialist thrust," while Judge Sutton would put it" on a Mount Rushmore of American laws.

Commodity's Propriety

I have known Greg Alexander for a very long time. Indeed, except for members of his family, I may have known Greg longer than anyone else at this conference celebrating Greg and his work. Since the beginning of this long friendship, we have had three notable encounters, and I would like to begin this Comment with those. The first encounter was at the University of Chicago Law School in the early 1970s. I was a student there at the time, and Greg was a Bigelow Fellow, one of the Law School’s much-sought-after year-long positions as legal writing instructors. I was already in my second year by then, so there was no chance that I would have had Greg as my Bigelow teacher, but somehow Greg and I and a fellow student and good friend, Martha Fineman, all gravitated together. Martha is now a very distinguished legal academic, holding a Woodruff Chair at Emory University School of Law. But even back then, both she and Greg were determined to go into law teaching. I, on the other hand, was not. I had just jettisoned a history teaching career to go to law school, and I had resolved to steer clear of anything like an academic career. But under Greg’s and Martha’s influence, I weakened. In that sense, Greg’s and Martha’s long-ago example explains why I now have the opportunity to say anything at all about Greg’s voluminous academic work

Parents in Fact

The Restatement of Children and the Law, protects a child's relationship with a "de facto parent"--a person who has "established a bonded and dependent relationship with the child that is parental in nature." De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement's full-throated embrace of a de facto parent doctrine--an immensely important development--in the context of family law's evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement's approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute's earlier endorsement of a de facto parent doctrine--the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement's approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents--from nonparent to parent--matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children's upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that "a parent consented to and fostered the formation of the parent-child relationship between the individual and the child." This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition

The Devotion of the Turtle Dove: The Aesthetics of the Legal Sacred in Anthony Trollope’s The Eustace Diamonds

35:2I am delighted to be included in this symposium to celebrate The Legal Imagination on its fiftieth anniversary. I was a student in Professor White’s class on civil procedure in my first quarter in law school—fifty years ago. He taught us common law pleading! Common law pleading was at once bizarrely alienating and revelatory. This was law. And I finished my legal education with The Legal Imagination in the spring of 1976. Some fifteen years later, after I had quit practicing law, Professor White served on my PhD examining and dissertation committees at the University of Chicago Divinity School. I now have the enormous pleasure of introducing graduate students in religious studies to his work. White’s writing speaks in a special way to those studying Islamic law who see in his work a humane approach to law that resonates with their efforts at repair of the western misunderstandings of Islamic law in contemporary scholarship. So, thank you, Jim. From me and from my students. This symposium celebrates the founding of a field now known as law and literature, but the field has always had a third implicit partner, religion. I will make that third partner more explicit here, drawing on my own field, law and religion