Stanford Law Review

Most Recent Print Issue

Volume 74, Issue 5

May 2022

Article

Regulatory Diffusion

by Jennifer Nou & Julian Nyarko

Regulatory diffusion occurs when an agency adopts a substantially similar rule to that of another agency. Indeed, regulatory texts proliferate just like other forms of law do. While this insight has been explored across countries, this dynamic also occurs closer to home: American administrative agencies regularly borrow language from one another. Our research shows that,…

Article

Grid Reliability Through Clean Energy

by Alexandra Klass, Joshua Macey, Shelley Welton & Hannah Wiseman

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will…

Article

The Regulation of Foreign Platforms

by Ganesh Sitaraman

In August 2020, the Trump Administration issued twin executive orders banning tech platforms TikTok and WeChat from the United States. These were not the first actions taken by the Trump Administration against Chinese tech platforms. But more than any other, the ban on TikTok sparked immediate outrage, confusion, and criticism. This Article offers a new…

Note

Climate Protagonists?

Strategic Misrepresentation and Corporate Resistance to Climate Legislation

by Catherine Rocchi

Political resistance from industry has hindered climate legislation in the United States. Lobbying is one of the most important ways in which firms exert influence in Congress and other rulemaking bodies. Firms involved in the production and use of fossil fuels spend far more money on lobbying than do environmental organizations and the renewable energy…

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Recent Online Essays

Is Quasi-Judicial Immunity Qualified Immunity?

by William Baude

Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. This would be very important if it were true. But it is not.

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Election Law in an Age of Distrust

by Richard H. Pildes

Election law now operates in a sea of pervasive distrust. This essay argues that election law and practices must adapt to the context of this pervasive distrust. Policies and practices that might be fine under normal circumstances, but are likely to feed distrust today, should be re-thought. This short essay identifies seven initial measures that policymakers, election administrators, and even voters can take to help fend off distrust about the election process.

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Enforcing the Political Constitution

by Franita Tolson

This short essay argues that the congruence and proportionality test of City of Boerne v. Flores—which the U.S. Supreme Court applies to laws passed pursuant to Section 5 of the Fourteenth Amendment—should not apply to federal voting rights legislation. This test is inapplicable because the right to vote, although a judicially protected constitutional right, is also a political right beyond the purview of the courts. The right to vote implicates a number of constitutional provisions that are direct grants of power to Congress, the exercise of which can directly conflict with the notions of judicial supremacy that dominate our legal system.

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Ascertaining the President-Elect Under
the Presidential Transition Act

by Michael T. Morley

The Presidential Transition Act (PTA) requires the Administrator of the General Services Administration (GSA) to facilitate the transition to an incoming administration following a presidential election. The PTA does not provide any guidance for the GSA Administrator, however, in determining whether a presidential candidate qualifies as a President-elect. This Article provides a framework for Administrators to apply, and Congress to consider codifying, when ascertaining the results of presidential elections under the PTA. It further suggests that Congress should amend the PTA to avoid unnecessarily delays and argues that Congress should reduce the potential perceived significance of the Administrator’s ascertainment decision by changing the term “President-elect” as used in the PTA and related federal statutes to a less politically charged term, such as “federal designee.”

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The Post-Trump Rightward Lurch in Election Law

by Michael Kang

The United States Supreme Court’s decisions last Term, Brnovich v. Democratic National Committee and Americans for Prosperity v. Bonta, mark only the beginning of a conservative transformation of election law under the Court’s post-Trump personnel. This Essay argues that although neither decision itself is immediately transformative, both decisions boldly discard ideological compromises not long ago held as obviously sensible by the right and instead point toward a conservative deregulation of minority voting rights and campaign finance disclosure in the near future.

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