Accidents of Federalism: Ratemaking and Policy Innovation in Public Utility Law

Decarbonizing the electric power sector will be central to any serious effort to fight climate change. Many observers have suggested that the congressional failure to enact a uniform system of electricity regulation could stifle the transition to a low-carbon electricity grid. This Article contends that the critique is overstated. In fact, innovation is occurring across different aspects of the electricity system and across different types of states in ways one would not expect to see under a single, national approach. As the Article demonstrates, this innovation stems in part from Congress’s failure to enact a single, national approach to electricity regulation, which has given states the ability to choose whether and how to participate in restructured electricity markets. This ability to opt into or out of wholesale and retail competition has resulted in three regulatory models now operating across the country, combining different approaches to wholesale and retail regulation. Under each of these models, a number of state public utilities commissions (PUCs) are using their powers to set utility rates in surprisingly innovative ways and are targeting different aspects of the electricity system in a manner that will help transition to an electricity grid that is greener, less carbon-intensive, more efficient, and more distributed than the current system. The Article claims that the diversity of policy innovations occurring across these different models, and the system-wide benefits they are producing, are unexpected outcomes of the distinctive structure of federalism that continues to animate the U.S. system of electricity regulation and the limited reach of policies to promote competition in the sector. When combined with specific federal policy nudges and subsidies to encourage state experimentation in ratemaking, the three-model system is producing significant and underappreciated benefits as the United States confronts the challenges of decarbonizing the electricity grid. While the current system may not be ideal, it is the system we will likely be working with for some time to come. As a result, understanding the nature of these ratemaking experiments, and the innovations they enable, will be key to the successful implementation of EPA’s Clean Power Plan or any other federal effort to cut greenhouse gas emissions from the power sector.

Protecting Disfavored Minorities: Toward Institutional Realism

Constitutional theorists in the United States once believed courts could protect politically disfavored minorities from the excesses of democracy. Eventually, many lost faith in constitutional reform through litigation, as they saw courts fail to effectively implement rights protections. Given the judiciary’s institutional limitations, it appeared the only reliable way to secure constitutional rights was through democratic politics itself. “Constitutionalism outside the courts” promises to endow rights with the legitimacy and implementation capacity of the political branches, catalyzed by the energy of social movements and broad public participation. The risk, however, in turning to constitutionalism outside the courts is that we may come to idealize the political branches—just as previous generations once romanticized the courts. Successes like the civil rights movement and the landmark statutes it produced tend to loom large in our collective imagination, while periods when Congress and the executive fail to vindicate minority rights appear inevitable, an inherent part of majoritarian democracy.

This Article argues that to be realists about constitutional rights, we must scrutinize the constitutional failures of all three branches. Doing so yields a sharply different perspective. Congress and the executive branch frequently fall short in implementing constitutional principles, for reasons that go beyond lack of majority support. The basic institutional structure of American government impedes constitutional reform in all three branches—even when a national majority favors it. Separated powers, federalism, and the representation of distinct majorities in each branch of government all operate to preserve the status quo, providing determined opponents multiple opportunities to block, undermine, and undo change. The Article illustrates this pattern using a historical case study of African American farmers’ long-running, largely unavailing claims for equal protection.

The implications are sobering, but illuminating, for those who care about protecting disfavored minorities. Institutional realism suggests that such groups often must win enduring supermajority support in order to obtain, implement, and preserve rights protections at the national level. The inertia-favoring design of American government is often claimed to protect liberty, but the obvious question is: Does our democracy really benefit from a constitutional structure that simultaneously stifles majority will and insulates the status quo?

Insider Trading and Market Structure

This Article argues that the emergence of algorithmic trading raises a significant challenge for the law and policy of insider trading. It shows that securities markets are dominated by a cohort of “structural insiders,” namely a set of traders able to utilize close physical and informational access to trade at speeds measured in milliseconds and microseconds, a practice loosely termed high frequency trading (HFT). By virtue of speed and physical proximity to exchanges, these HFT traders can systematically gain first access to new information, trade on it, and change prices before the rest of the market can see its content. This Article makes three contributions. First, it introduces and develops the concept of structural insider trading. Securities markets increasingly rely on automated traders utilizing algorithms—or pre-programmed electronic instructions—for trading. Policy allows traders to enjoy important structural advantages: (i) to physically locate on or next to an exchange, shortening the time it takes for information to travel to and from the marketplace; and (ii) to receive feeds of richly detailed data directly to these co-located trading operations. With algorithms sophisticated enough to respond instantly and independently to new information, co-located automated traders can receive and trade on not-fully-public information ahead of other investors. Indeed, by the time that the rest of the market sees this information, it has long since become out-of-date. Secondly, this Article shows that structural insider trading exhibits harms that are substantially similar to those regulated under conventional theories of corporate insider trading. Structural insiders place other investors at a persistent informational disadvantage. Through their first sight of market-moving data, structural insiders can capture the best trades and erode the profits of informed traders, reducing their incentives to participate in the marketplace. Despite the similarity in harms, however, this Article shows that current doctrine does not apply to restrict structural insider trading. Rather, structural insiders thrive in full public view, and with regulatory permission. Thirdly, this Article explores the implications of structural insider trading for the theory and doctrine of insider trading. It shows them to be increasingly incoherent in their application. In protecting investors against one set of insiders but not another, law and policy appear under profound strain in the face of innovative markets.

Defending Criminal(ized) “Aliens” After Padilla: Toward a More Holistic Public Immigration Defense in the Era Of Crimmigration

The unprecedented U.S. system of mass incarceration and the intensifying merging of criminal and immigration law have devastated individuals, families, and entire communities, especially poor communities of color. Noncitizens who come into contact with the criminal justice system are too often stripped of even the slightest chance of reintegration; returning home means removal to their countries of origin. Removal is often impossible to fight post conviction and is thereby virtually inevitable. And civil immigration legal service providers are not equipped to meet the immense need for immigration representation. Therefore, public defenders are usually the first and last line of legal defense for indigent noncitizens charged with crimes. Indeed, in light of recent U.S. Supreme Court decisions, including its groundbreaking decision in Padilla v. Kentucky requiring that counsel provide affirmative advice on the immigration consequences of criminal dispositions, public defenders must provide effective immigration defense. Padilla can be an opening for public defender offices committed to serving all their clients—citizens and noncitizens alike—to proactively fight for equality and racial justice and defend immigrants’ rights.

This Comment provides the first in-depth exploration of the holistic model of immigration defense within public defender offices. It does so by presenting case studies of two public defender organizations that have developed more holistic models: The Bronx Defenders (Bronx County, New York) and the Office of the Alameda County Public Defender (Alameda County, California). By introducing original information, the case studies emphasize insights and best practices both for immigration defense within public defender offices and for strategies to develop more holistic models. The holistic model of immigration defense is three-fold. First, immigration defense attorneys are embedded within the public defender office, working seamlessly alongside criminal defenders to avoid or mitigate negative immigration consequences. Second, offices provide full services, including direct representation in immigration court, to address clients’ underlying immigration needs. Third, offices organize and advocate for structural reform to roll back mass incarceration and sever the criminal-immigration link. Ultimately, this Comment argues for public defender offices to launch and build more holistic immigration practices.

Public-Private Divide in Parker State-Action Immunity

The U.S. Supreme Court’s jurisprudence on Parker state-action immunity from federal antitrust laws has remained largely muddled since its inception. The Court recently attempted to bring clarity to the doctrine in North Carolina Board of Dental Examiners v. FTC, holding that state occupational licensing boards with a controlling number of active market participants are subject to the same active supervision requirement as private actors performing state governmental functions. Given that most state licensing boards are comprised of active market participants in the industry they are charged with regulating, state licensing boards can no longer assume they are immune from antitrust suits.

In response, states have been scrambling to reassess the composition and oversight of their regulatory bodies in order to reduce antitrust liability for board members. In addition, litigants are bringing more claims against these boards for alleged antitrust violations. Lower courts are left with the task of determining whether these boards are closer to private actors or to prototypical state agencies. For those boards classified as private, lower courts are left with the task of determining whether the regulatory regimes overseeing the boards’ anticompetitive conduct satisfy the active supervision requirement.

In light of these rapid developments, however, doctrinal confusion about Parker immunity persists. This confusion largely stems from the Court’s failure to formally adopt a rule of decision incorporating the two bedrock principles that have explained Parker immunity doctrine since its inception: financial disinterest and political accountability. In pursuit of bringing much-needed clarity to the doctrine, this Comment makes a descriptive case, inspired by Professor Einer Elhauge’s seminal article on Parker immunity, that Parker immunity jurisprudence has been shaped by inquiring into the functional purposes the public-private distinction serves in the context of delegating state power to municipalities, prototypical state agencies, and private entities. This Comment will argue that the U.S. Supreme Court should formally adopt a rule of decision inspired by the principles of financial disinterest and political accountability to govern Parker immunity doctrine. The Comment will lastly incorporate this rule of decision and square it directly with the Court’s recent opinion in North Carolina Board of Dental Examiners v. FTC.