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Article

Governance Costs and the Reallocation of Administrative Agency Authority

by John Meisel

The Article examines competing approaches to delegation and the administrative state through the lens of governance costs. It argues that many longstanding debates concerning delegation, agency discretion, judicial review, and constitutional structure are best understood as disputes over the allocation of recurring governance risks, including accountability, agency drift, concentration of power, expertise, delay, coordination costs, and regulatory underproduction.

Rather than treating formalist, pragmatic, and institutional approaches as fundamentally incommensurable, the Article develops a governance‑cost taxonomy that provides a common analytical framework for comparing competing theories of administrative governance. The framework demonstrates how scholars, judges, and doctrines often address similar institutional concerns while assigning different weights to those concerns.

The Article applies this framework to leading administrative law theories and recent Supreme court decisions, including West Virginia v. EPA, SEC v. Jarkesy, and Loper Bright Enterprises v. Raimondo. It argues that contemporary administrative law disputes frequently reflect differing judgments regarding which institutions should bear particular governance risks and whether balancing should occur through ex ante constitutional allocations of authority or ex post institutional decision making.

By providing a common vocabulary for understanding doctrinal disagreement, the Article offers a new perspective on the evolving relationship among Congress, administrative agencies, and the judiciary in the modern administrative state.

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Article

Life After Moelis: A Trulia Moment for Governance Claims?

by Kyle A. Pinder

At the height of the merger-tax litigation bubble, the Delaware Court of Chancery issued its In re Trulia Stockholder Litigation decision, which disincentivized meritless M&A disclosure claims. Similarly, for the past several years, Delaware corporations have faced a wave of facial validity challenges to charter, bylaw, and governance-agreement provisions. Most of these claims end the same way: The corporation amends the challenged provision and pays a mootness fee, often while maintaining that the provision was lawful all along. Two recent Delaware Supreme Court decisions may disrupt that sequence. Kellner v. AIM ImmunoTech Inc. confirmed that a facial validity challenge fails unless the provision cannot operate lawfully under any set of circumstances, foreclosing claims built on hypothetical abuses. Moelis & Co. v. West Palm Beach Firefighters’ Pension Fund clarified that facial invalidity is not synonymous with voidness: A provision the corporation could have implemented by other lawful means is merely voidable, and challenges to it may be subject to cure, laches, and other equitable defenses. Because only a meritorious claim can support a mootness fee, those decisions substantially reduce the incentive to challenge long-standing, voidable governance provisions in the abstract. These opinions signal a preference to conserve judicial resources for live disputes challenging such governance arrangements where the plaintiff has real skin in the game, such as during a pending or threatened proxy contest.

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Article

Fines, Fees, and the Carceral Economic Conditions of Public Education

by Thalia González

In this Article, I apply an expanded concept of education carcerality to identify and analyze a largely unexamined modality of punitive economic governance—intra-system educational fines and fees. Distinguished from other forms of childhood financial sanctions, including the criminalization of ordinary child and adolescent behavior in schools through the use of municipal fines and fees, these carceral-penal practices are exclusively defined, imposed, and collected within school systems themselves. Drawing on original data from 101 publicly available policies governing the two largest school districts by student population in each state and the District of Columbia, this Article contributes to the literature with three principal findings. First, that intra-system educational fines and fees are nearly ubiquitous across jurisdictions. Second, these economic obligations give rise to compounding non-economic punishments when students and families are unable to pay, including the withholding of diplomas, grades, and transcripts. Third, existing protective policy provisions are highly variant, unevenly designed, and no districts examined provide categorical waivers. These findings affirm a central claim that this form of fines and fees constitute a pervasive and unregulated system of economic education carcerality and underscore the pressing need for critical praxis among economic justice, education law, and youth justice advocates and scholars to contest and dismantle the operation of institutionalized carceral economic conditions within public schools.

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Note

Education as a Right, Homelessness as a Crisis: The Displaced Futures of American Homeless Youth

by Tina Pham

Homelessness in the United States has been a humanitarian crisis affecting youth as one of its most vulnerable populations. Education is one of the few opportunities to break through this cycle of poverty. Recognizing the gap in education for homeless students and other students, Congress enacted the McKinney-Vento Act, which guarantees homeless youth educational rights to access public education. Following the Supreme Court’s decision in Grants Pass v. Johnson, however, the rise of criminalizing policies, such as encampment sweeps and anticamping ordinances, threatens the success of the Act. These policies not only destabilize families, but they also leave homeless youth disadvantaged because they obstruct educational access, displacing their futures.

This Note argues that criminalization measures directed at homelessness, such as encampment sweeps, undermine the educational rights of homeless youth under the McKinney-Vento Act. It examines current federal and state legislative frameworks governing homelessness against the rise of criminalizing policies post-Grants Pass. Then, it concludes that these policies create challenges for homeless students in violation of the Act. Finally, this Note proposes legal claims plaintiffs could bring under the Eighth Amendment’s Excessive Fines Clause and the McKinney-Vento Act in addition to a broader policy reform that would ensure state and local compliance with the Act. By shedding light on the barriers homeless youth face in accessing education and reframing education as an essential right, this Note emphasizes the urgent need for legal and fundamental interventions to preserve the futures of homeless youth.

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Development

Recognition Without Authority? Why Vesting Government Recognition in the U.N. Credentials Committee Would Be a Mistake

by Jorge Barrera-Rojas

When the legitimacy of a government is contested, courts, regional bodies, and states each decide independently who speaks for the state in law. In Recognition Rules, Justin Cole, Alaa Hachem, and Oona Hathaway argue that this fragmentation imposes real costs and propose to cure them by empowering the U.N. Credentials Committee to issue binding determinations of governmental authority across all international law contexts. This Article argues that, beyond Charter obstacles to such a reform, it would be a mistake. The effective-control criterion rewards actors who seize power by force over governments that retain democratic legitimacy; binding credentials decisions would strip international courts and regional bodies of the contextual judgment that standing, immunities, and treaty capacity actually require; and the fragmentation the proposal seeks to eliminate is not a failure of design but a reflection of the fact that legitimacy cannot be reduced to a single criterion decided by a political body. Preserving multiple sites of recognition authority is not a concession to disorder; it is the only approach adequate to the problem.

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Note

Or Else: Statutes Without Sanctions and the Doctrine of Meaningful Interpretation

by Christian Davis

Mankind has been fashioning laws for millennia. And while the form and substance of laws vary widely across times and places, all laws are unified by a fundamental reality that transcends the particular legal and political institutions of the day. To put it simply: laws only work if someone is prepared to enforce them.

As arbiters of the American legal system, state and federal judges are aware that—in order for a law to have the conduct-influencing effect it was designed to have—it must be supported by some version of an “or else” clause, a punishment or penalty sufficient to dissuade the public from ignoring the law’s content. Because of this reality, judges are necessarily placed in a difficult position when the legislature passes a law that proscribes certain conduct but fails to denote a penalty for violation.

This Note examines the application of statutes without sanctions in cases of evidentiary exclusion. To that end, this Note considers policies of default nonenforcement, causal relation analysis, and a basic purpose inquiry. Because the role of the judiciary is—at its core—to effectuate the will of the people as expressed by their legislative representatives, this Note concludes that applying a causal relation test or a basic purpose test is the best way for judges to navigate the application of statutes without sanctions.

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Note

Scraping Bad: The Case for a Unified Scraping Framework

by Eunchong Moses Park

This Note explores the growing legal and regulatory landscapes of web scraping in the United States and argues that web scraping should be regulated through a unified federal framework tailored to its unique technological and economic realities. Web scraping allows organizations to collect massive amounts of data essential to their operational needs—often without the consent of data holders. Thus, web scraping has become a powerful engine of innovation used across virtually every sector of the economy but with a serious risk to privacy and property interests. Yet the current U.S. legal framework lacks a coherent regulating structure. Courts and litigants are forced to rely on outdated federal law, state privacy laws, and various common law doctrines—none of which were designed to address web scraping.

Through a comparative analysis of U.S. and European law and a relevant case study, this Note suggests that the current U.S. approach is inadequate in protecting some of the most fundamental rights and interests. Instead, web scraping should be regulated through a unified federal framework, incorporating a tiered regulatory regime that distinguishes different types of data and methods of collection to balance innovation with individual rights.

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Development

The Ten Commandments, Stripped of Slavery, Exodus & Jubilee

by Christopher D. Hampson

The Ten Commandments are back on public classroom walls and in federal court, after several states passed new laws requiring school districts to post the text. As attorneys, judges, and amici debate whether First Amendment law has changed enough since Stone v. Graham in 1980 to allow the posting of the ancient religious text, this Essay comes at the situation from an entirely different angle. The precise text proposed by the states might be a good example of “ceremonial deism,” but it removes biblical law from biblical narrative – and, in doing so, unsets the Ten Commandments from their original narrative setting of slavery, Exodus, and Jubilee. Drawing from Roger Williams, this Essay argues that the Establishment Clause operates to preserve religion from the corroding influence of political expediency and suggests that thick, age-appropriate discussions are a more appropriate way to honor the Decalogue than posterization.

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Development

Rules of the Game: Lessons from Sports to Understand Antitrust Law’s Fairness Foundations

by Tara Pincock and Daniel A. Hanley

Traditionally, courts and practitioners assert that the antitrust laws are simply about protecting competition, not competitors. In essence, these parties perceive competition to be inherently desirable, rather than recognizing that it can be beneficial or harmful depending on its intensity and scope. As a result of this mistaken belief, courts hold that certain conduct is legal under the antitrust laws simply because they determine it to be procompetitive, while conduct deemed anticompetitive is condemned. Courts seldom provide definitive boundaries to this pro-competition trope and instead assert it as if it were a well-established truism and universal societal good.

Without details regarding what specific kind of competition the antitrust laws should promote or condemn, confusing situations arise, such as when a firm purposefully deceives its competitors to obtain a monopoly, but its actions are not seen as rising to the level of an antitrust violation. The confusion is exacerbated when the courts treat conduct that appears fundamentally unfair as procompetitive, or even hypercompetitive, therefore allowing it. Using fairness as a foundational principle would curtail much of the uncertainty that is currently infused into the antitrust jurisprudence.

In this Article, we describe how sports provide a solid, though admittedly incomplete, reference point to refine and conceptualize the contours of the antitrust law’s intrinsic notions of fairness. For too long, the lack of a definitive definition of competition has plagued antitrust law. A more detailed definition of what constitutes fair competition would help antitrust enforcers and judges determine which competitive strategies and tactics should be prohibited or encouraged under the antitrust laws. With a more precise definition, the goals and purpose of the antitrust laws would become much more explicit, ultimately structuring the economy in the way Congress desired.

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Note

Stealth Consolidation: Healthcare’s Process of Quietly Dodging Antitrust Enforcement

by Nathan Rush

The healthcare industry has become highly concentrated due to increased rates of consolidation. Mergers and acquisitions among healthcare providers have become extremely common, making dominant hospital systems the norm. When healthcare provider markets are highly concentrated, competition deteriorates, leaving patients to suffer the consequences: higher prices for lower quality care.

The federal antitrust agencies tasked with preserving competition have failed to combat the consolidation trends that are plaguing the healthcare industry. Vertical consolidation between hospitals and physician groups has especially gone unchecked. The Hart-Scott-Rodino Act, a federal antitrust law, requires merging parties to give the agencies pre-merger notice. This law, however, requires notice of only the largest transactions. Because most vertical hospital-physician acquisitions are too small to require reporting, hospitals and hospital systems can conduct several acquisitions without drawing attention from the antitrust enforcement agencies. As a result, hospital systems are able to gradually and quietly amass market power, thereby obtaining the leverage to increase prices, reduce innovation, and offer lower quality care. This is the process of “stealth consolidation.”

This Note examines the types of mergers and acquisitions that occur between healthcare providers. It then explains why antitrust enforcement in this industry has been insufficient and how acquiring parties have been able to successfully pull off stealth consolidation. This Note concludes by providing methods to address stealth consolidation and preserve patients’ access to affordable, quality healthcare.

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