Information is a powerful tool that government can use to inform the public about the risks of climate change, how to mitigate those risks, and how to reduce emissions of the greenhouse gases responsible for climate change. This chapter addresses the role the First Amendment plays when the government uses information to promote public policies on climate change. The chapter explains that the government has vast leeway to collect and disseminate information and the First Amendment presents no barrier to the government's use of information tools when the government itself is the speaker. But the First Amendment does come into play when the government enlists or compels others to carry the government's message. The First Amendment may, in some cases, limit the government's power to compel speakers to engage in speech on matters of opinion or on subjects that might be considered controversial. The First Amendment generally limits government's ability to force speakers to adhere to the government's views. And the First Amendment may constrain the government's ability to rid the marketplace of advertising claims that may over-promise environmental benefits, but are not demonstrably false or misleading. These constraints, however, do not pose a serious obstacle to the government's ability to use information tools to help in the fight against climate change.

The 100th anniversary of the Federal Trade Commission ("FTC" or "Commission") provides an opportunity to celebrate the Commission's enviable record of accomplishment. It also gives Commission watchers a chance to reflect on how the lessons learned during the Commission's first hundred years might inform the agency's leadership in charting the Commission's course for its second hundred years. This Article focuses on two areas in which the Commission has taken effective action to protect consumers safeguarding consumer privacy and combatting deceptive advertising and argues that these issues will continue to occupy center stage at the FTC and that the Commission should consider fine-tuning the agency's work to better protect consumers.

This Article traces the successful resurrection of the Administrative Conference of the United States ("ACUS"), a federal agency uniquely dedicated to improving the efficiency and fairness of administrative agencies to better serve the American public. The Article begins by recounting ACUS's history of accomplishment, from the time it opened its doors in 1968 to 1995, when Congress took the ill-advised step of shutting ACUS down. The Article then describes ACUS's improbable resurrection, suggesting that, as a result of the diligence of ACUS's supporters, Congress was persuaded that no other institution, governmental or private, could fill the void left by ACUS's abolition. Finally, the Article salutes ACUS's reconstitution and points to two of ACUS's recent reports and recommendations to show how much a difference a small agency dedicated to the mission of improving the administrative state can make.

INTRODUCTIONThe idea that humans could, at some point, develop machines that actually "think" for themselves and act autonomously has been embedded in our literature and culture since the beginning of civilization.1 But these ideas were generally thought to be religious expressions-what one scholar describes as an effort to forge our own Gods2-or pure science fiction. There was one important thread that tied together these visions of a special breed of superhuman men/machines: They invariably were stronger, smarter, and sharper analytically; that is, superior in all respects to humans, except for those traits involving emotional intelligence and empathy. But science fiction writers were of two minds about the capacity of super-smart machines to make life better for humans.One vision was uncritically Utopian. Intelligent machines, this account goes, would transform and enlighten society by performing the mundane, mind-numbing work that keeps humans from pursuing higher intellectual, spiritual, and artistic callings.3 This view was captured in the popular animated 1960s television show The Jetsons.4 As its title suggests, the show's vision is decidedly futuristic. The main character, George Jetson, lives with his family in a roomy, bright, and lavishly furnished apartment that seems to float in the sky. George and his family travel in a flying saucer-like car that drives itself and folds into a small briefcase. All of the family's domestic needs are taken care of by Rosie, the robotic family maid and housekeeper, who does the household chores and much of the parenting.5 George does "work." He is employed as a "digital index operator" by Spacely's Space Sprockets, which makes high tech equipment. George often complains of overwork, even though he appears to simply push buttons on a computer for three hours a day, three days a week.6 In other words, the Jetsons live the American dream of the future.In tangible ways, this Utopian vision of the partnership between humans and highly intelligent machines is being realized. Today, supercomputers can beat humans at their own games. IBM's "Deep Blue" can beat the pants off chess grand-masters, while its sister-super- computer "Watson" can clobber the reigning Jeopardy champions.7 But intelligent machines are more than show. Highly sophisticated robots and other intelligent machines perform critical functions that not long ago were thought to be within the exclusive province of humans. They pilot sophisticated aircraft; perform delicate surgery; study the landscape of Mars; and through smart nanotechnology, microscopic machines may soon deliver targeted medicines to areas within the body that are otherwise unreachable.8 In every one of these examples, machines perform these complex and at times dangerous tasks as well as, if not better than, humans.But science fiction writers also laid out a darker vision of intelligent machines and feared that, at some point, autonomously thinking machines would turn on humans. Some of the best science fiction expresses this dystopian view, including Stanley Kubrick's 1968 classic film 2001: A Space Odyssey.9 The film's star is not the main character, "Dave" (Dr. David Bowman, played by Keir Dullea), or "Frank" (Dr. Frank Poole, played by Gary Lockwood), who are astronauts on a secret and mysterious mission to Jupiter. Instead, the character who rivets our attention is HAL 9000,10 the all-knowing supercomputer who controls most of the ship's operations, but does so under the nominal command of the astronauts. The complexity of the relationship between man and the super-intelligent machine is revealed early in the film. During a pre- mission interview, HAL claims that he is "foolproof and incapable of error,"11 displaying human-like hubris. And when Dave is asked if HAL has genuine emotions, he replies that HAL appears to, but that the truth is unknown.12Once the mission begins, tensions between HAL and the astronauts start to surface. …

Professor Ryan Cab's meticulous critique of the potential for digital marketing to manipulate consumer choice is intended to be a wake-up call to regulators, policymakers, and consumers about the dangers lurking in a digital world. His arguments are powerful and persuasive. We all need to take heed.This Response takes issue with only three of Professor Cab's arguments, none of which go to the heart of his thesis. First, although I agree with Professor Cab's description of the power of digital marketing, there are factors that may mitigate some of the risks he sees looming. Second, Professor Cab may underestimate the ability of regulators, using existing authorities, to respond to some of the worst abuses he forecasts. And finally, although I am sympathetic to Professor Cab's policy prescriptions, I fear that some of the speech restraints he considers may founder on the shoals of the First Amendment.

In his 2013 Colston Warne Lecture, Georgetown Law Professor David C. Vladeck reflects on his recent four‐year tenure as the Director of the Federal Trade Commission's Bureau of Consumer Protection and discusses what he believes will be the economic downturn's most enduring legacy—the dilemmas that have been spawned by the pervasive and intractable debt that many US consumers are bearing.

Introduction I. How We Got Here A. The Gardner-Denver, Barrentine, and McDonald Trilogy B. Gilmer and the End of the Non-Waivability Principle 1. Employment Cases 2. Consumer Cases II. The Empirical Defense A. Fundamentally Flawed Data B. Neglected Societal Costs III. Contracting (Out) Statutory Rights Conclusion INTRODUCTION On April 1, 2009, the Supreme Court ruled in 14 Penn Plaza LLC v. Pyett (1) that a union can bargain away a member's right to seek judicial relief for employment discrimination. The Court had already resolved that an employee could bargain away that right for herself, (2) and the recent decision only expanded the notion that statutory rights may be overwritten by contract. In the Supreme Court's current view, private dispute resolution through arbitration is preferable to litigation. The Court seems undeterred by the Congressional mandate that claims arising under, for example, Title VII of the Civil Rights Act of 1964, (3) the Fair Labor Standards Act of 1938, (4) the Americans with Disabilities Act, (5) the Age Discrimination in Employment Act, (6) and the Civil Rights Act of 1991, (7) are to be enforced by the federal judiciary. With the Court's approval, pre-dispute, mandatory arbitration provisions have become ubiquitous in contracts for employment and consumer goods, forcing employees and consumers to arbitrate, rather than litigate, their statutory claims. What is the significance of this trend for the enforcement of federal laws and the vindication of the rights conferred by those laws? (8) A number of scholars have devoted empirical research to this question, many arguing that arbitration is not as bad as it seems if one looks at real outcomes. (9) There are at least two significant problems with these analyses. First, putting aside any methodological flaws in the individual studies, everyone agrees that the data available is extraordinarily limited, and even the degree of the limitation is unknown. This is because arbitration is a private, often confidential process, the initiation, outcome, and reasoning of which are generally invisible to the public and unavailable to social scientists. As others have suggested, drawing conclusions from the small fraction of available data is meaningless and misleading. (10) A second curious aspect of the empirical literature, which has received less criticism, is its narrow focus on a single question: courts are expensive, so does arbitration provide the litigants with more bang for their buck? Even those who question the wisdom of mandatory arbitration generally adopt this analytic approach. Conceding that arbitration costs less overall, they raise concerns about the hurdle of arbitration fees, whether grievants win as often and as much as they would in court, and whether the arbitration process disproportionately rewards repeat players. (11) Even the theorists who direct their inquiries towards fairness evaluate it by comparing the interests of plaintiffs and defendants, ignoring the benefits of statutory enforcement beyond those accrued by individual parties. The trouble with this approach is that what is at issue is not simply private interests, but public rights. (12) Measuring the economic utility of arbitration for isolated individuals might make sense if contract law were independent of, or superior to, statutory law, as the Court seemed to believe in Lochner. (13) Applying a contract-based approach to the adjudication of statutory rights, however, leaves out a key player: the legislature. Congress passed anti-discrimination laws because it wanted to end discrimination in the workplace, and Congress saw public adjudication of these claims as an important part of the fight against discrimination. (14) In a similar vein, Congress passed consumer-protection statutes because it recognized the wide disparity in bargaining position between corporate sellers and consumer purchasers and wanted to protect consumers from corporate overreaching. …

Daily front-page stories recounting the failure of defibrillators, pacemakers, heart stents and infusion pumps have raised questions about the adequacy of FDA regulation of medical devices. At the same time, lower courts are struggling to apply the Supreme Court's ruling in Medtronic, Inc. v. Lohr to determine the preemptive reach of the Medical Device Amendments (MDA). This article explores the repercussions of Medtronic and argues that Congress' use of words like in regulatory statutes should be seen as references to positive state law only, and should not be read, absent an explicit command by Congress, to subsume state law damage actions. The lower courts' confusion over Medtronic's preemption rule may have been sown by the complexity of the opinion itself. Fairly read, Medtronic's preemption rule is narrow, requiring specific and conflicting requirements for a device imposed by both state and federal law. General tort duties do not trigger preemption because they do not impose requirements specific to a given device. The article also explores the Executive Branch's current efforts to push its tort reform agenda by pressing broad preemption arguments in private tort litigation. The article argues that courts should be wary of such efforts and suggests that, by working to shield industry from tort liability, the Administration has given the public reason to question whether the FDA is serving the interests of the public or the industry it regulates. Finally, the article argues that preemption claims are an effort to shed an important source of market discipline - the threat of liability for visiting unjustifiable harm on others - a discipline that regulation cannot itself provide. Judges reviewing preemption claims should evaluate industry's preemption claims in light of the overall regulatory and liability context. Medical devices are an illustration of the inadequacy of relying on regulation alone. The MDA was passed in response to several notorious medical device failures, failures which were brought to light through product liability litigation. Since the MDA became law, the medical device industry has been extensively regulated by the FDA. But the FDA alone cannot exert sufficient discipline on the marketplace to ensure an adequate margin of safety for medical devices, a fact that the agency, at least until recently, itself acknowledged.

With the blessing of the Supreme Court, pre-dispute, mandatory arbitration provisions have become ubiquitous in contracts for em-ployment and consumer goods. What is the significance of this trend for the enforcement of federal laws and the vindication of the rights conferred by those laws? A number of scholars have devoted empirical research to this question, with many arguing that arbitration is not as bad as it seems if one looks at outcomes. This Article highlights two significant problems with these analyses. First, putting aside any methodological flaws in the individual studies, everyone agrees that the data available is extraordinarily limited, and even the degree of the limitation is unknown. This is because arbitration is a private, often confidential process, the initiation, outcome, and rea-soning of which are generally invisible to the public and unavailable to social scientists. Drawing conclusions from the small fraction of available data is meaningless and misleading. A second curious as-pect of the empirical literature, which has received less criticism, is its narrow focus on a single question: courts are expensive, so does arbitration provide the litigants with more bang for their buck? Even among those who question the wisdom of mandatory arbitration, many concede that arbitration costs less overall. Theorists who direct their inquiries towards fairness also evaluate it by comparing the interests of plaintiffs and defendants, but they neglect the benefits of statutory enforcement beyond those accrued by individual parties. The trouble with this approach is that what is at issue is not simply private interests, but public rights. To the extent that we consider acceptance of arbitration as substitute for litigation, we must come to terms with the fact that we are sacrificing the public interpretation of public laws. The aggregate social costs of that sacrifice deserve at-tention. In our view, the Supreme Court’s embrace of mandatory arbitration reflects a return to a Lochner-like veneration for the free-dom to contract unrestrained by public laws, and the studies measuring individual interests fail to grapple with this reality.