The well-known Chevron doctrine is under siege as courts continue to carve out exceptions to its scope and some scholars and judges question whether it should be overruled entirely. One ongoing battle concerns whether the doctrine, which requires courts to defer to reasonable agency interpretations of ambiguous statutes, applies to certain “split-authority” statutes administered by multiple agencies, such as the Sarbanes-Oxley Act’s whistleblower provisions (“SOX”) and similar employment statutes. Both the Department of Labor (“DOL”) and the Securities and Exchange Commission (“SEC”) administer SOX’s whistleblower provisions, with the DOL having formal adjudicative authority and the SEC having rulemaking authority, leading to the risk of the agencies rendering conflicting interpretations. This risk has led some courts and scholars to conclude that Chevron should not apply to these statutes in any circumstance. This article argues, as both a doctrinal and normative matter, that courts should accord Chevron deference to agency interpretations of SOX and similar statutes where no conflict exists (as opposed to courts constructing their own interpretations with no deference accorded to agency interpretations or applying some lesser form of deference to agency interpretations). This article further contends that the risk of a conflict occurring is greatly overstated (and certainly does not justify the rejection of Chevron to a whole category of statutes), and if a conflict does arise, it can be easily resolved as set forth herein. Other administrative law scholars have generally conducted only a cursory analysis of whether the Chevron doctrine is applicable to agency interpretations of statutes administered by multiple agencies, addressing this question in the abstract. This article, however, analyzes the issue as to SOX in particular, and in doing so, is better able to examine the multiple practical and theoretical considerations involved in the inquiry as to whether Chevron should apply. In analyzing the Chevron doctrine’s applicability to agency interpretations of SOX, this article also seeks to contribute to the scholarship on whistleblowing more generally. Although the literature is rich with discussion as to the substantive standards applicable to whistleblowing claims, scholars generally overlook the initial question of whether agencies or courts have primary interpretative authority as to split-authority whistleblowing statutes, despite this question having a significant impact on the effectiveness of these statutes. As the administrative framework utilized by SOX is similar to that of other whistleblowing statutes, this article seeks to provide insight on this foundational question of whether courts should apply Chevron deference to agency interpretations of these statutes and seeks to resolve the uncertainty that currently exists.
We root for the underdog, and nascent and potential competitors are the antitrust version of underdogs. They introduce a promising product and innovation with the hopes of challenging the incumbent for supremacy in a market. Yet, are those hopes cancelled before they even begin with powerful incumbents acquiring these nascent and potential competitors? Some even refer to these acquisitions as “killer.” However, is this the full story? Assessments of nascent and potential competition are ultimately about “what if.” What if the upstart competitor grows into the next dominant platform or develops the next blockbuster drug? What if the incumbent knows its market position has a weakness that the entrant will exploit so the incumbent must end the competition before it even begins? On the other hand, what if the nascent competitor never fully develops its potential and engages in a series of missteps? What if the nascent competitor’s innovation can be improved upon and reach the market faster and more widely through the well-oiled machinery of the incumbent? These are all possible scenarios. The problem is that the counterfactual world is never actually observable. Thus, speculative “what ifs” cannot guide antitrust policy—whether in an overly permissive or aggressive manner. What are we left with? What should agencies and courts do in face of such uncertainty? This Article offers a number of propositions to address these concerns and questions in regard to competition that has not been fully realized. First, the Article offers a clear legal and analytical delineation between the doctrines of nascent and potential competition—as there has recently been a degree of “semantic satiation” between these two concepts. Second, some have argued that the acquisition of nascent competitors should be adjudicated using legal standards developed under the Sherman Act, Section 2, which covers monopolization, rather than under the traditional Clayton Act, Section 7, which governs mergers and acquisitions. Yet, the counterfactual exercise is fundamentally different between ex ante merger evaluations (Section 7) and ex post monopolization claims (Section 2). Consequently, based on this fact alone, courts should be cautious to adopt Section 2 approaches to Section 7 issues. Third, when evaluating the wider set of proposals to address the nascent and potential competition problem, which the Article comments on, we must ask whether there is a problem in the first place. To that end, the Article examines a number of recent merger retrospectives. Finally, while using the past to predict the future can be a difficult and uncertain exercise even within mature markets, these hinderances can be overstated. Economic tools are available to frame our approach, and agencies and courts should focus particularly on whether the characteristics and nature of the acquired nascent competitor are sufficiently differentiated from the remaining competitors to warrant increased scrutiny.
The Foreign Intelligence Surveillance Act (FISA) has never been more controversial. Enacted to bolster surveillance's institutional framework after the excesses of J. Edgar Hoover's FBI, FISA's deficits have been front and center due to the Justice Department Inspector General's report on the flawed Carter Page FISA request and disclosures of excessive FBI querying of U.S. person information under § 702 of the FISA Amendments Act. This paper suggests that current problems have their roots in the failure of both the FBI and the Department of Justice (DOJ) to learn the lessons of FISA's origins and history. Reading the pre-history of FISA requires a look at the troubled history of FBI-DOJ interaction on surveillance. From World War II to the wiretap on Dr. Martin Luther King, Jr. in the 1960s, the Justice Department has acquiesced in regulatory capture by the FBI. Under Hoover, the FBI used its information advantage and edge in personal relationships with the politically powerful to ramp up its surveillance mechanism. FISA was supposed to restore the institutional balance between DOJ and the FBI, but without commitment in practice FISA is just a flow chart. The Foreign Intelligence Surveillance Court (FISC) can reinvigorate dialogue between DOJ and the FBI, but it can do so only if DOJ and the FBI cooperate to provide the FISC with accurate information. That paradox has created an impasse that the Carter Page FISA request and § 702 querying excesses have highlighted. To remedy the regulatory capture that continues to afflict the FISA process, this paper proposes a public advocate at the FISC, de novo high-level administrative review of FISA requests, introduction of machine learning models for quality control, and appointment of a special master for technology. These measures will not eliminate the risk of regulatory capture. But they will spur cultural change, enabling the gatekeeping framework of FISA to better balance liberty and security.
The Racketeer Influenced and Corrupt Organizations Act came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as a partial explanation of how RICO’s “meaning” has been shaped. Along the way, I synthesize many years of my own legal scholarship and litigation experience into a retrospective of where RICO interpretation and application have been—and where they still must go.
Prescriptive easements form an important but often overlooked building block in the architecture of property law. Prescription, the doctrine that allows a long-term user of another’s land to acquire a prescriptive easement burdening that land without compensating the owner, transforms a trespass into a permanent property right good against the world. Of all the elements of prescription, adverse use or adversity is often the most intensely disputed and often proves to be outcome determinative. Given its importance to prescriptive easement claims, courts have developed a number of presumptions to frame their analysis of the adversity element. For many years, leading treatise writers have advised that if a prescriptive easement claimant establishes that otherwise unexplained use of another’s land has occurred in an open and notorious manner and continued without interruption for the statutory prescription period, the claimant’s use is presumed to have been adverse to the owner. The same leading authorities acknowledge that a minority of courts employ the opposite presumption—that otherwise unexplained use is presumed to be permissive.It turns out that the vast majority of U.S. courts employ a hybrid approach to this question, starting with a presumption of adverse use but then applying counter-presumptions of permissive use in a number of special circumstances. This Article urges the reporters currently preparing the Restatement of the Law Fourth Property (Restatement Fourth) to institutionalize this hybrid approach and fashion a black letter rule that mirrors the dominant judicial practice. In support of this position, this Article first reviews previous Restatement attempts to clarify the law of prescriptive easements. Next, it analyzes academic scholarship that has defended prescription and its doctrinal cousin, adverse possession, called for their abolition, or advocated for their reform. Finally, this Article offers a detailed discussion of relevant case law in all fifty states and explains why the hybrid approach, what this Article calls the Presumption of Adverse Use with Specialized Exceptions (the PAUSE approach), is consistent with many of the institutional goals of the Restatement Fourth reporters, especially their aim to articulate relatively invariant property rules and yet identify appropriate places for property law to be responsive to context, social norms, and customs.
Our criminal justice system must be democratic enough to allow for significant citizen participation. Unfortunately, our current system cuts the people out. Instead of juries, plea bargaining professionals like prosecutors, defense attorneys, and judges decide most cases. Plea bargaining does efficiently process cases but, in addition to its well-known coercive aspects that warp case outcomes, ignores what I call “criminal justice citizenship.” This refers to the people’s privilege to participate on an equal basis in the criminal justice system. That participation strengthens our democracy, shores up the legitimacy of the system, and helps to ensure that the system, within constitutional constraints, does not become untethered from the people it is supposed to serve. Because the jury trial has all but disappeared, other participatory democratic institutions, like grand juries and plea juries, must play a more prominent role. Criminal justice citizenship is best described by three key principles: membership, participation and deliberation. Participation refers to public participation in democratic processes, including jury service and advisory boards. Membership requires distributing opportunities to participate broadly and equally. Deliberation means public dialogues that are enriched by broad participation and which influence official action. This article’s distinct contribution to plea bargaining literature is in its analysis of plea bargaining reform through the lens of criminal justice citizenship. Plea bargaining is terrible for citizenship, and while many reforms to plea bargaining have been proposed, only a few support citizenship. Any reform that tends to increase the system’s reliance on juries would likely strengthen criminal justice citizenship. But even where jury trials are rare, other forms of citizen juries can still be devised to give a broader swath of the people a more direct role in influencing and deciding case outcomes.
The well-known Chevron doctrine is under siege as courts continue to carve out exceptions to its scope and some scholars and judges question whether it should be overruled entirely. One ongoing battle concerns whether the doctrine, which requires courts to defer to reasonable agency interpretations of ambiguous statutes, applies to certain “split-authority” statutes administered by multiple agencies, such as the Sarbanes-Oxley Act’s whistleblower provisions (“SOX”) and similar employment statutes. Both the Department of Labor (“DOL”) and the Securities and Exchange Commission (“SEC”) administer SOX’s whistleblower provisions, with the DOL having formal adjudicative authority and the SEC having rulemaking authority, leading to the risk of the agencies rendering conflicting interpretations. This risk has led some courts and scholars to conclude that Chevron should not apply to these statutes in any circumstance. This article argues, as both a doctrinal and normative matter, that courts should accord Chevron deference to agency interpretations of SOX and similar statutes where no conflict exists (as opposed to courts constructing their own interpretations with no deference accorded to agency interpretations or applying some lesser form of deference to agency interpretations). This article further contends that the risk of a conflict occurring is greatly overstated (and certainly does not justify the rejection of Chevron to a whole category of statutes), and if a conflict does arise, it can be easily resolved as set forth herein. Other administrative law scholars have generally conducted only a cursory analysis of whether the Chevron doctrine is applicable to agency interpretations of statutes administered by multiple agencies, addressing this question in the abstract. This article, however, analyzes the issue as to SOX in particular, and in doing so, is better able to examine the multiple practical and theoretical considerations involved in the inquiry as to whether Chevron should apply. In analyzing the Chevron doctrine’s applicability to agency interpretations of SOX, this article also seeks to contribute to the scholarship on whistleblowing more generally. Although the literature is rich with discussion as to the substantive standards applicable to whistleblowing claims, scholars generally overlook the initial question of whether agencies or courts have primary interpretative authority as to split-authority whistleblowing statutes, despite this question having a significant impact on the effectiveness of these statutes. As the administrative framework utilized by SOX is similar to that of other whistleblowing statutes, this article seeks to provide insight on this foundational question of whether courts should apply Chevron deference to agency interpretations of these statutes and seeks to resolve the uncertainty that currently exists.
Federal Rule of Evidence 404(b), which governs the admissibility of other-acts evidence, is a mess, and recently-promulgated amendments will not fix it. The amendments fail to address the two major problems underlying Rule 404(b). First, the rule is based on a categorical judgment about the relative probative value and unfair prejudice of other-acts evidence when it is offered as character evidence, that is, to prove the defendant acted in accordance with his or her character. In numerous cases, however, other-acts evidence is highly probative and the rule’s categorical judgment is decidedly wrong. Not surprisingly, courts often admit such evidence, typically by erroneously denying that the evidence is being offered to prove the defendant acted in accordance with his or her character. The second problem exacerbates the first. Although the rule prohibits only character evidence, no one knows what character means. Neither the rules nor the case law defines character in any meaningful way. Consequently, we have a body of case law that authorizes the admission of not only high-probative-value other-acts evidence, but also precisely the type of low-probative-value other-acts evidence that Rule 404(b) was designed to exclude. The way to reverse this practice is, paradoxically, to make it easier for courts to admit high-probative-value other-acts evidence. Rule 404(b) should be written and applied in a manner that aligns with its goal of furthering accurate factfinding. This Article suggests two ways of doing this. First, courts must confront the issue they have so long avoided: they must grapple with the meaning of character. By doing so, courts can recognize that some types of high-probative-value other-acts evidence should not be considered character evidence. That will permit them to admit such evidence while acknowledging that it requires a propensity inference. Likewise, evidence of a person’s attitudes or psychological or medical conditions should not be considered character. Second, Rule 404(b) should be amended to provide a true exception for one particular category of other-acts evidence whose probative value is categorically greater than its prejudicial effect. Other-acts evidence should be admissible to prove a defendant’s intent, except when the defendant agrees not to controvert intent. Providing courts legitimate grounds for admitting such high-probative-value other-acts evidence even when its probative value flows from a propensity inference will mean that courts will no longer have to engage in propensity-inference denial. In time, a new body of case law should emerge that gives prosecutors fewer avenues for arguing that low-probative-value other-acts evidence should be admitted.
Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable and/or subject to congressional control. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction. After reviewing the academic literature, this Article examines the relevant evidence on convention composition and protocols, including Founding-era records, later historical records, and a widely-overlooked Supreme Court decision. This evidence clearly contradicts assertions that convention protocols and composition are unknowable or subject to congressional control. Rather, the evidence informs us that an amendments convention is what the founders called a “convention of the states”—a gathering whose composition and protocols were universally understood by the time the Constitution was ratified. This Article also describes the composition and protocols and explains how the “convention of states” model fits within the Constitution’s structure.
Many commentators have argued that high levels of public fear and anger regarding violent crime result, at least in part, from distorted coverage of crime in the news media. Among other distortions, it is said that the news media devote greatly disproportionate coverage to the most outrageous instances of violent crime, and that the media fail to provide information that would helpfully contextualize the offenses or humanize the perpetrators. In order to test these latter claims, crime stories from a daily newspaper and an Internet news site in one mid-sized city were collected for one year. As expected, in comparison with actual crime rates, the news sources disproportionately covered violent crime, and, within the violent-crime category, disproportionately covered homicides. Homicides accounted for 61% of the coverage in one news source, and 27% in the other. Also as expected, the news sources only infrequently supplied contextualizing/humanizing information. However, it remains unclear whether and to what extent such patterns in news coverage affect public attitudes toward crime and punishment.
Whether incarceration heightens an individual’s likelihood of recidivating is at the center of prison policy discussions. Yet rigorous empirical studies on the nature of the incarceration—recidivism link are limited. As a whole, existing research suggests that the effect of imprisonment, relative to noncustodial sanctions, is either null or slightly criminogenic. These findings call into question the ability of prisons to exert a specific deterrent effect. They also suggest that prisons are failing to address the underlying causes of recidivism among inmate populations. An important consideration, however, is the extent to which the effects of imprisonment are heterogeneous. The current discussion further unpacks the effect of prison by considering whether and how imprisonment influences the risk of violent recidivism. This Article reviews the different theoretical perspectives invoked to explain the association between incarceration and future violence, as well as the existing research evidence. This Article concludes with implications for theory, research, and policy .
Cannabis is widely used in the U.S. and internationally despite its illicit status, but that illicit status is changing. In the U.S., 33 states and the District of Columbia have legalized medical cannabis, and 11 states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation. From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity to improve on existing legalization models passed using the initiative process that strongly favor business interests over public health. To assess whether state legislatures are acting on this opportunity, this article examines provisions of proposed adult use cannabis legalization bills active in state legislatures as of February 2019 to evaluate the inclusion of key public health best practices based on successful tobacco and alcohol control public health policy frameworks. Given public support for legalization, further adoption of state adult use cannabis laws is likely, but legalization should not be viewed as a binary choice between total prohibition and laissez faire commercialization. The extent to which adult use cannabis laws incorporate or reject public health best practices will strongly affect their impact, and health advocates should work to influence the construction of such laws to prioritize public health and learn from past successes and failures in regulating other substances.
The thesis of this article is that a claimant in a civil forfeiture proceeding can assert a counterclaim against the United States government. This assertion is based upon the scope of the Supplemental Rules and in rem jurisdiction. In rem jurisdiction does not prohibit a claimant from asserting a counterclaim if she can meet the modern personal jurisdiction requirements. And both the purpose and history surrounding counterclaims — to allow litigants to resolve their claims before a court within one civil action — support this expedient practice. Furthermore, admiralty practice and the Supplemental Rules implicitly endorse counterclaims in forfeiture. Thus, courts should adopt the Fifth Circuit’s approach. Even though a claimant can assert a counterclaim in an in rem civil forfeiture proceeding, sovereign immunity likely serves as a mostly impregnable bulwark to his recovery. Any claims arising out of the forfeiture must coincide with the narrow grounds for recovery under CAFRA, which only allows a claimant to recover attorney’s fees, litigation costs and various forms of interest. While this may eclipse a claimant’s constitutional tort or state law tort claims, the claimant can still recover those costs as laid out in CAFRA. This is the correct result because it balances competing interests — the FRCP’s goal to provide an efficient mechanism for litigants to assert their claims and CAFRA’s reform to civil forfeiture. The FRCP obviously contemplates liberal counterclaim rules that extend to civil forfeiture claimants, under both the Supplemental Rules and the history and scope of Rule 13. If the purpose of the FRCP and the Supplemental Rules are to give litigants an expedient way to dispose of all of their claims at once that they have against each other, then allowing counterclaims in a civil forfeiture proceeding that arises out of the forfeiture falls within that. This result protects the FRCP’s purpose and promotes judicial economy.
At retirement, workers want to have enough income to support themselves throughout their retirement years. In that regard, financial planners often suggest that retiring workers should aim to replace 70 to 80 percent of their annual preretirement earnings. Social Security benefits typically replace around 35 percent of the typical worker’s preretirement earnings, and the purpose of this Article is to show how pensions could and should be designed to replace, say, 40 percent of the typical worker’s preretirement earnings throughout her retirement years. In particular, because so many public and private pension plans are underfunded, this Article is focused on how to fully fund those pensions. At the outset, Part II provides an overview of Social Security, pensions, annuities, and other lifetime income mechanisms. In particular, Part II explains how Social Security works, how traditional pensions work, and how newer 401(k) plans and individual retirement accounts (IRAs) work. Part III then focuses on funding issues for Social Security and pensions. In particular, Part III shows that the Social Security system is currently underfunded by at least $13.9 trillion, that State and local government pension plans are currently underfunded by at least $4.7 trillion, that the U.S. government’s civilian pensions are currently underfunded by at least $911 billion, and that the U.S. government’s military pensions are currently underfunded by at least $767 billion. Part III also shows that private-sector pensions are also severely underfunded. In that regard, traditional defined benefit pensions are currently underfunded by at least $553 billion. Moreover, Part III shows that most workers with 401(k) plans or individual retirement accounts (IRAs) are not saving anywhere near enough to have pensions that could replace 40 percent of their preretirement income; and many workers have no retirement savings of any kind. Part IV then looks at some basic compound-interest and pension mathematics, and Part V explains pension benefit accrual and funding in traditional defined benefit plans. First, Part V.A develops a model, traditional defined benefit plan; and Part V.B then shows how that model defined benefit plan could provide a typical retiree with a pension that would replace 40 percent of her preretirement earnings. Part V.C then uses that model defined benefit plan to explain and compare the various mechanisms that are currently used to fund such traditional pensions, including everything from the pay-as-you-go method to the principal actuarial cost methods that are used to prefund those traditional pensions. Part VI then looks at benefit accrual and funding in defined contribution plans (and IRAs). Part VI develops two alternative model plans that could replace 40 percent of a typical worker’s preretirement earnings. For these model plans, the idea is for the worker to save enough money in her individual account by age 65 so that she could then buy a lifetime annuity that would replace 40 percent of her preretirement earnings. Part VII then expands the defined benefit and individual account models to address some of the most important problems of providing pensions in the real world, including, for example, the problem of postretirement inflation. Part VIII then offers some recommendations about how to redesign—and fully fund—real-world defined benefit plans, defined contribution plans, and IRAs; and, finally, Part IX offers some concluding remarks.
Academics have never agreed on a theory of proof. The darkest corner of disagreement concerns how legal factfinders logically should find facts. This Article pries open that cognitive black box. It does so by employing multivalent logic, which enables it to overcome the traditional probability theory that impeded all prior attempts. The result is the first-ever exposure of the proper logic for finding a fact or a case’s facts.The focus is the evidential processing phase, rather than the application of the standard of proof as tracked in my prior work. Processing evidence involves (1) reasoning inferentially from a piece of evidence to a degree of belief and of disbelief in the element to be proved, (2) aggregating pieces of evidence that all bear to some degree on one element in order to form a composite degree of belief and of disbelief in the element, and (3) considering the series of elemental beliefs to reach a decision. Zeroing in, the factfinder in step #1 should connect each item of evidence to an element to be proved by constructing a chain of inferences, employing multivalent logic’s rules for conjunction and disjunction to form a belief function that reflects the belief and the disbelief in the element and also the uncommitted belief reflecting uncertainty. The factfinder in step #2 should aggregate, by weighted arithmetic averaging, the belief functions of all the items of evidence that bear on any one element, creating a composite belief function for the element. The factfinder in step #3 does not need to combine elements, but instead should directly move to testing whether the degree of belief from each element’s composite belief function sufficiently exceeds the corresponding degree of disbelief. In sum, the factfinder should construct a chain of inferences to produce a belief function for each item of evidence bearing on an element, and then by weighted average produce for each element a composite belief function ready for the element-by-element standard of proof.This Article performs the task of mapping normatively how to reason from legal evidence to a decision on facts. More significantly, it constitutes a further demonstration of how embedded the multivalent-belief model is in our law.
