VOLUME 168, ISSUE 3 JANUARY 2020

Articles

This Article radically rethinks the treatment of statistical estimation evidence in civil litigation, focusing for convenience on the federal courts. It proposes an approach that harmonizes legal standards and statistical concepts, replacing the arbitrary and elevated standards of conventional hypothesis testing with an approach that fits what we otherwise think the preponderance standard means.

For decades, the Supreme Court has expanded the Federal Arbitration Act (FAA) and companies have placed arbitration clauses in hundreds of millions of contracts. This Article examines a less‐obvious way in which arbitration’s tendrils are growing. Once, even the broadest arbitration provisions only governed allegations that were somehow connected to the agreement between the parties (the “container contract”). As a result, they often did not cover shocking and unforeseeable misconduct, or parties who did not sign the container contract, or claims that arose after the agreement lapsed. But now businesses are experimenting with what this Article calls “infinite” arbitration clauses: those that mandate arbitration for all disputes between any related party in perpetuity. Moreover, to cut courts out of the loop, drafters are coupling infinite provisions with so‐called “delegation” clauses, which give the arbitrator the exclusive right to determine whether to send a cause of action to arbitration.

When agencies implement their statutes, administrative law doctrine describes what they do as interpretation. This raises the question of how much deference courts ought to give to such agency interpretations of law. This Article claims, however, that something else is usually going on when agencies implement statutory schemes. Although agencies interpret law, as they must, as an incident to enforce the law, agencies also exercise another power altogether: an interstitial lawmaking, gap‐filling, policymaking power, a power that I shall call the “specification power.” This Article aims to advance existing accounts of agency activity and judicial deference by demonstrating that agencies exercise distinct powers of law‐interpretation and law‐specification when implementing a statutory scheme. Most significantly, it provides a constitutional account for why agencies may exercise this specification power as a formalist matter, even if they cannot have final say over the interpretation of law. If this account is correct, then calls to overturn modern judicial deference may be overblown if agencies are usually exercising their powers not of interpretation, but of specification.

Comments

The doctrine that carves out “true threats” from First Amendment protection has been unclear, in its scope and operation, since the exception was first recognized more than half a century ago. This category of unprotected speech was recognized by the Supreme Court in 1961, in a decision that identified “true threats” as distinct from other, protected, potentially threatening speech, but did not articulate a standard which lower courts could apply to distinguish the two. In the fifty years since, the Court has addressed the constitutional bounds of the true threat doctrine only once, clarifying that true threats require some showing of intent.

Article II, Section 3 of the Constitution is the source of the President’s recommending function, stating that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . .” Presidents dating back to George Washington have relied on the Recommendations Clause as a positive source of authority to make legislative recommendations to Congress. In an interesting twist, however, recent administrations have also frequently wielded it as a source of negative power to escape statutory requirements to provide information to Congress.

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