VOLUME 168, ISSUE 5 September 2020

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law—focusing on horizontal rights, privileges, and private liability—copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and lawmaking that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. In the Legal Process conception, determining the substantive content of the law is fundamentally a matter of identifying the institution with formal competence (and legitimacy) to decide the matter, and then deciphering its policies and directives for an area of law in a purposive manner. The heyday of the Legal Process School, the 1950s and 1960s, coincided with the period during which the current U.S. copyright regime was being constructed. Several of its core lessons find direct veneration therein, including: the centrality of legislation as the harbinger of copyright’s policy and purposes; the primacy of collectivist copyright policy over individual copyright principles; a recognition of the limitations of courts and judge-made law; and the treatment of copyright as a specialized but autonomous body of law requiring expert administration. As this Article argues, the U.S. copyright regime is today better conceived of as a “legal process,” wherein the law is dynamic, purposive, and multi-institutional in origin. Modern copyright thinking would do well to embrace this reality and develop mechanisms to deal with this fundamental—yet unacknowledged—transformation, which explains a variety of perceived anomalies and puzzles within the working of the system.

Rather than quietly revive cost-of-service rate regulation, this Article argues that FERC should simplify reserve requirements, stop counteracting state clean energy programs, and support the development of competitive markets for services that support grid reliability. Specifically, FERC and grid operators need not administratively reprice resources or force load-serving entities (LSEs), which distribute electricity to consumers, to transact with specific generators. Instead, the Commission should support long-term resource procurement markets that would be built on top of today’s short-term energy markets. Wholesale markets would consist primarily of short-term energy dispatch and balancing markets. They would not be relied on to ensure that revenues are sufficient to maintain resource adequacy. If LSEs were permitted to determine for themselves how to comply with resource procurement requirements, they could balance renewable policies, flexibility needs, and reserve mandates. This approach would maintain reliability while respecting FERC’s jurisdictional limits. Most importantly, it would prevent the Commission from quietly reviving cost-of-service regulation in regions that ostensibly abandoned that market structure decades ago.

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth- century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security. This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives—including records of drafting, legislative, and ratification debates, committee files, private and official correspondence, diaries, newspapers, pamphlets, poetry, and other publications—this Article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.