Josh Macey

Resurrecting the Trinity of Legislative Constitutionalism From 1919 to 1969, the Offices of the Legislative Counsel in the Senate and House drafted precedential opinions to advise lawmakers on constitutional and subconstitutional questions. This Article lift...

/1 Just realized that my latest article with @yalelawjournal.bsky.social just dropped! This is obviously a huge honor. I really appreciate the editors taking a chance on a young, no-name scholar with an idiosyncratic story to tell.

www.yalelawjournal.org/article/resu...

Thank you to the “What Is Distinctive About LPE and L&E?” panelists, @akapczynski.bsky.social, @jocelynsimonson.bsky.social, @sonofdavid.bsky.social, @adamchilton.bsky.social, @joshuamacey.bsky.social, Mila Versteeg Sarath Sanga, and moderator Joe Schottenfeld.

President Trump in the Era of Exclusive Powers - Harvard Law Review The defining doctrinal innovation of the second Trump administration has been to take the Supreme Court at its word. In recent years, the Court...

I have an essay out in the @HarvLRev blog on "President Trump in the Era of Exclusive Powers."

The basic claim is that we can understand Trump 2.0 as an exercise in taking the Supreme Court's recent separation of powers jurisprudence at its word.

harvardlawreview.org/blog/2025/04...

I hope the piece might be of interest to among others, @jacklgoldsmith.bsky.social @becingber.bsky.social @debpearlstein.bsky.social @joshuamacey.bsky.social @blakeprof.bsky.social @narosenblum.bsky.social @jdmortenson.bsky.social @jedshug.bsky.social @dandeacon.bsky.social @curtbradley.bsky.social

"Ohio Confidential" debuts at 9 p.m. on Tuesday, April 15.

Similarly proud to be a WilmerHale* alum (if they fight this).

*As Leah should know, it’s WilmerHale (marketing name, with camel case) or Wilmer Cutler Pickering Hale and Dorr LLP. I don’t think Lloyd Cutler would back down from this.

Last week, a federal court lifted an injunction that had blocked Indiana's anti-competition transmission law (ROFR). The court threw out the injunction on a legal technicality. This paves the way for MISO to award LRTP projects to IN utilities w/o competition media.ca7.uscourts.gov/cgi-bin/Opin...

We filed this amicus yesterday on Wilcox v Trump

1. Firing Wilcox from NLRB was illegal,
b/c Humphrey's Executor remains good law.
2. New historical evidence confirms Humphrey's.
3. Unitary responses expose that they have no evidence.

@ssrn.bsky.social link:
papers.ssrn.com/sol3/papers....

It’s usually bad news if scholarship on free speech becomes timely, so I am pleased/dismayed that I have a timely new paper, forthcoming in U Chicago Law Review, about one of the Trump admin’s most powerful tactics of censorship: jawboning 🧵https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5162523

Extracting Profits from the Public: How Utility Ratepayers Are Paying for Big Tech’s Power
My new paper with Eliza Martin uncovers how utilities are forcing ratepayers to fund discounted rates for data centers
🔌💡
eelp.law.harvard.edu/extracting-p...

Thanks Dan!

But would be interested in learning more about the conduct you're describing

Utilities Are America's Real Monopoly Problem and Need Scrutiny R Street Institute’s Kent Chandler and Yale Law’s Joshua Macey say a Fourth Circuit antitrust case is a lesson for greater federal enforcement against state utility companies’ dominance.

Your timing is good. Jim Rossi and I have a non-public draft of a paper on this. It's not ready for circulation yet, but it's about antitrust and public utility regulation. at a high level, kent chandler and I recently wrote this op-ed: news.bloomberglaw.com/us-law-week/...

Have been mostly trying to avoid the news today. But a few initial reactions upon quick skim of EOs:
* Attempt to halt dispursements of BIL and IRA awards. This is extremely aggressive and, if it sticks, will undermine investments (largely in GOP districts). Probably the sleeper provision.

Hedging and tail risk in electricity markets One of the persistent concerns in scarcity-based electricity market designs is that markets for long-term contracts are highly illiquid or ‘missing’. …

🔌💡 Our new study led by @fnbillimoria.bsky.social, "Hedging and tail risk in electricity markets," is now out in Energy Economics. 50-day access link: www.sciencedirect.com/science/arti...

For Ari’s early work that seems to have influenced this, see: www.eba-net.org/wp-content/u...
And: www.eba-net.org/wp-content/u...

Call for Papers - 14th Annual Junior Federal Courts Workshop - Cornell Law School, 4/25/2025. Junior scholars in fields of federal courts, civil procedure, civil rights litigation, constitutional law are encouraged to apply. Abstracts due 1/15/25.

community.lawschool.cornell.edu/junior-facul...

ABSTRACT As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of today’s scenarios in corporate governance. Scenarios are a useful tool, but who makes them matters

Up now on ssrn: a sort of odd piece I wrote about the history and future of scenario analysis as a corporate governance tool for a symposium on "The Corporation at the Intersection of Law and Information." Forthcoming soon in the Seattle Law Review!

papers.ssrn.com/sol3/papers....

Some really gross stuff is in your utility bill.

The US often outsources electricity market design decisions to investor-owned utilities 🔌💡

"This explanation is unconvincing, however, because PacifiCorp does not have any competitors."

Good humor in @joshuamacey.bsky.social 's new paper: lawreview.uchicago.edu/print-archiv...

Okay, back to #energysky agreeing on 80% of climate policy… The Kleinman Energy podcast is great and this episode with @joshuamacey.bsky.social and @shelley-w.bsky.social should definitely be in your weekly queue.

Grid governance needs serious reform—not just for RE but for reliability, load, etc.

🚨New paper: State Capacity for Building Infrastructure

US infrastructure construction (transportation, energy, etc.) is often costly & slow.

I discuss the data & propose reforms. 🧵

Here is the paper: papers.ssrn.com/sol3/papers....

#EnergySky 🔌💡

FERC's update to its transmission planning rule dodged the "Atlantic City" issue. Ah well.
Atlantic City refers to a 2002 decision by the DC Circuit that holds utilities have a right under federal law to file changes to its transmission rates and terms. Might not seem important but...

Lastly, can refusal to deal be a means of recoupment?

Got it. So it seems the predatory pricing claim is stronger than the duty to deal claim. The duty to deal allegation looks a lot like trinko. But it does seem like Duke expected to recoup its losses from captive ratepayers.

Also, to what extent do predatory pricing tests consider the realities of the retail market. Here duke expected to recover losses in the wholesale market in retail rates. It was entitled to automatic rate recovery. Do courts typically account for features of the market structure (sorry to spam!)

Thanks, Herb. I don’t know antitrust law as well as I should. if you have a duty to deal under non-antitrust federal law (here FERC order 2003 requires interconnection service), do you still need to satisfy every part of trinko to trigger Sherman act liability?