An integrated confidentiality system now pervades American dispute resolution. This system was created over the course of decades by legislatures, rule makers, and courts. Proponents of confidentiality have long justified expansive secrecy by claiming that the benefits of withholding litigation information outweigh any potential public harm. Recent evidence undermines this premise. In some of the most important public-harms cases of the past two decades, critical health-and-safety information was kept secret in court files. People died or were injured in the meantime. It has also become apparent that consolidating cases in multi-district litigation has the potential to accelerate and homogenize confidentiality nationally. The recent evidence of these trends is concerning and would prompt any conscientious observer to reconsider the status quo. This Article first considers the structure and impact of court confidentiality. Much of the current system is driven by inertia, tradition, and player incentives (in addition to formal rules). Next, the Article examines some of the existing limitations on court confidentiality and proposes a few alternatives. These proposals include new limitations on private confidentiality agreements for litigation information, an appropriately expanded role for the First Amendment in protective-order disputes, and limitations on umbrella protective orders and sealing orders.
American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply … rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, and in real time.” Even well-meaning and diligent university faculty and staff members cannot serve as competent hearing officers under the revised regulations, at least not without robust training that campus officials will have trouble providing. Under the prior regime, faculty and staff hearing officers often required that parties submit written questions, which the officer would then consider asking of witnesses. Further, many universities prohibited parties’ advisors from speaking at hearings, other than by whispering to their clients, who might then propose a question suggested by counsel. These practices are forbidden under the revised regulation. A marketing or biology professor who muddled through under the old system—carefully considering questions scribbled by college students—will encounter an entirely new challenge when asked to rule in real time upon the propriety of questions asked by skilled lawyers. Necessary training would be expensive. This Article proposes that colleges and universities solve this problem by hiring external hearing officers. At the same time, institutions can retain autonomy over internal discipline decisions by using faculty and staff as jurors who decide the merits of a case after a trained professional has presided at a hearing.
"Some people see in all earthly things only a dreary cyclical movement," Heinrich Heine wrote around 1833.1 "In contrast to the fatal and indeed fatalistic view," he added, "there is a brighter view, more closely related to the idea of providence." As Heine described it, from this alternative perspective "all earthly things are maturing towards a beautiful state of perfection ... a higher, godlike condition of the human race, whose moral and political struggles will at last lead to the holiest peace, the purest brotherhood, and the most everlasting happiness." Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law.4 As such, constitutionalism began its life linked to "dreary cyclical" stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long.
New Deal cooperatives succeeded in electrifying rural America when for-profit utilities would not. Today, however, rural electric cooperatives are lagging behind when it comes to meeting the challenge of climate change. Cooperatives have collectively been slower to embrace the shift to low-carbon electricity than for-profit and municipal utilities and have served as a drag on state and federal clean energy and climate policies. This is partially because of the structural differences between cooperatives and other utilities, but also because of a weak and under-determined federal and state regulatory structure. A few cooperatives in Colorado and New Mexico are seeking to lead the charge to a low-carbon electricity system, but they are finding themselves stymied by their own power supply cooperative. Drawing on insights from organization, public choice, and energy regulation theories, this Article argues that institutional incentives at power supply cooperatives inhibit prudent resource planning in a time of climate change. It concludes that cooperatives need significant changes to state and federal regulatory structures to counter these factors. These changes include subjecting power supply cooperatives to rigorous integrated resource planning requirements and providing state utility commissions oversight over power supply contract buy-out fees. It also includes reconsidering the wholesale electricity rate structure between power supply and distribution cooperatives.
For better or for worse, election polls drive the vast majority of political journalism and analysis. Polls are frequently taken at face value and reported breathlessly, especially when they show surprising or unexpected results. Though most pollsters adhere to sound methodological practices, the dependence of political journalism – and campaigns, independent political organizations, and so on – on polls opens a door for the unsavory. Fake polls have started to proliferate online. Their goal is to influence online political betting markets, so that their purveyors can make a quick buck at the expense of those they’ve tricked. This Article argues that these actions – the creation and promulgation of fake polls to influence betting markets – is a classic case of either commodities fraud, or wire fraud, or both, or conspiracy to commit either. It argues that publishing fake polls, even for the relatively esoteric purpose of influencing political prediction markets, could have adverse societal consequences if left unpunished. Accordingly, it makes the case for criminal liability and provides federal prosecutors with a roadmap of how to see it through.
