Articles

Recent Supreme Court decisions such as American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), represent dramatic developments with implications that extend far beyond the arbitration context. These decisions are a product of what the author refers to as the “contract model” of the Federal Arbitration Act (FAA). Heretofore largely unquestioned, the contract model posits the FAA’s original and dominant purpose as the promotion of private ordering in dispute resolution, as free as possible from state regulation. The model has, in turn, helped courts and commentators claim that the FAA requires arbitration agreements to be enforced strictly “according to their terms”—without regard to the way those agreements might compromise procedural values, such as when they preclude classwide relief.

This Article questions both the descriptive accuracy and normative persuasiveness of the contract model. It argues that when placed in their proper historical context, the FAA’s text and legislative history appear equally consistent (if not more so) with a purpose to improve upon the widely discussed procedural failings of the courts circa 1925. From this standpoint, the FAA can be understood as an offshoot of ongoing efforts at the time to reform procedure in the federal courts—efforts spearheaded by figures such as Roscoe Pound and Charles E. Clark, and that eventually culminated in the Federal Rules of Civil Procedure in 1938. The FAA, in short, was arguably a type of procedural reform.

These insights lead the author to propose a “procedural reform” model of the FAA, one that he contends is both more faithful to the statute’s history (legislative and otherwise) and more adept at answering the difficult questions that confront arbitration law in the age of “contract procedure.” The author considers two recent examples to illustrate.

Policy experimentation in the “laboratory of the states” is a frequently cited benefit of our federalist system, but a necessary condition of thoughtful experimentation is often missing. To conduct useful policy experiments, states and other subfederal actors need baseline information: In order to learn from the successes and failures of their neighbors, state actors must understand the laws and regulations that other jurisdictions have enacted. And, despite the seemingly ready availability of legal and regulatory materials in the information age, subfederal officials often lack this understanding. The literature has recognized that states often fail to share policy results, particularly failures, but few legal scholars have explored the lack of information about the substance of policy—an essential foundation for thoughtful experimentation. This information deficit tends to pervade technical policy areas in particular—those that do not follow uniform codes and require expertise to understand, like hydraulic fracturing and health care. In these areas and others, the states may still be laboratories, but in some cases they are laboratories on islands, with no comprehensive, uniform information exchanged among them. This limits the experimental upside of laboratories—informed, efficient, and innovative regulatory approaches. It also expands laboratories’ known downside—the costs to private entities of complying with different standards.

This Article explores the problem of regulatory islands and the public choice, political economy, and resource-based dynamics that create them. It also explores areas in which states have effectively shared regulatory content—often with federal help—and argues that the federal government is in the best position to work with subfederal institutions to produce and synthesize regulatory information. Even if the government does not do the collection and synthesization itself—indeed, mistrust by state actors may prevent this level of involvement—it should fund and partially manage it. Federal involvement is important because when the federal government allows subfederal experimentation in areas of federal concern, it should already be producing much of this information anyway in order to monitor state regulation to ensure that federal goals are being met and ensure that states are not imposing externalities on their neighbors. Increasing the availability of regulatory information will enable more informed experimentation and allow monitoring of policy gaps. In the many areas in which it does not regulate directly, the essential federal government role in modern regulatory experiments is an informational one.

While courts and commentators have considered the information-forcing role of executive oversight and judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight, premised on a reasoned decision-making basis. Judicial review of certain types of agency determinations should be more stringent because those determinations have not been vetted by executive oversight and are thus less likely to be premised on reasons backed by empirical support. Agency cost-benefit analyses and agency conflict preemption determinations—two realms rarely if ever considered together—are compared in terms of their reliance on underlying factual predicates and contrasted in terms of the existing framework for executive oversight and judicial review of agency determinations.

A heightened judicial review standard—what I term “State Farm with teeth”—should guide courts’ evaluations of the cost-benefit analyses performed by independent agencies not subject to executive oversight. This Article is the first to draw the distinction between independent and executive agencies in the State Farm hard-look context. It is also the first to explore the recent Business Roundtable decision by the D.C. Circuit through this analytical lens.

The stringent “State Farm with teeth” standard should likewise be applied to judicial review of agency determinations of conflict preemption made in the absence of executive oversight. As this Article discusses, recent developments involving the Office of the Comptroller of the Currency’s preemption assertions regarding state banking laws provide a compelling illustration of why this should be so. This Article also points to a potential new information-forcing role for Congress. Using the Dodd-Frank Act as an illustration, this Article shows how Congress can set parameters for judicial review of administrative agencies’ fact-based conflict preemption determinations.

The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. How has greater judicial discretion affected interjudge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering almost 400,000 criminal defendants linked to sentencing judges to undertake the first national empirical analysis of interjudge disparities after Booker.

The results are striking: Interjudge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed post-Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime.

Disentangling the effects of various actors on sentencing disparities, I find that prosecutorial charging is likely a prominent source of disparities. Rather than charging mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of the sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, this Article suggests that recent sentencing proposals calling for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.

Under the Clean Air Act, the U.S. Environmental Protection Agency (EPA) is required to determine the stringency of the National Ambient Air Quality Standards (NAAQS), arguably the most important federal environmental program, without considering the costs of achieving these standards. Instead, it must rely exclusively on health-related criteria. This Article argues that health-based standards, which are one of the principal approaches to setting the stringency of environmental requirements in the United States, exhibit two serious pathologies: the stopping-point problem and the inadequacy paradox. The stopping-point problem arises because there is no coherent, defensible way for EPA to set the permissible level of pollution based on health considerations alone. Moreover, contrary to the commonly accepted view, the NAAQS have generally been set at levels that are less stringent than those that would result from the application of cost-benefit analysis, giving rise to the inadequacy paradox. We urge a reinterpretation of the Supreme Court’s important decision in Whitman v. American Trucking Associations to avoid the inadequacy paradox.

Research on the statutory license for certain types of copyright-protected content has revealed an unlikely symbiosis between uncertainty and efficiency. Contrary to received wisdom, which tells us that in order to increase efficiency, we must increase stability, this Article suggests that uncertainty can actually be used to increase efficiency in the marketplace. In the music industry, the battle over terrestrial performance rights—that is, the right of a copyright holder to collect royalties for plays of a sound recording on terrestrial radio—has raged for decades. In June 2012, in a deal that circumvented the statutory license for sound recordings for the first time ever, broadcasting giant Clear Channel granted an elusive terrestrial performance right to a small, independent record label named Big Machine and agreed to pay royalties where no such legal obligation exists. This result not only improves upon many of the statutory license’s inefficiencies but is also the opposite of what we would expect given both the tumultuous history surrounding the rights at issue and the respective parties’ bargaining positions. It suggests an underexplored mechanism at play: uncertainty. Using the statutory license for sound recordings and the Clear Channel–Big Machine deal to motivate the analysis, this Article argues that bounded uncertainty—such as uncertainty about the future legal status of terrestrial performance rights and uncertainty about future digital business models—converts a statutory license into a “penalty default license.” Just as penalty default rules encourage more efficient information exchange between asymmetrical parties, penalty default licenses encourage more efficient licensing among otherwise divergent parties by motivating them to circumvent an inefficient statutory license in favor of private ordering. While not without its drawbacks, which previous work identified and ameliorated, private ordering improves upon the statutory approach, resulting in greater efficiency not only for the parties involved but for society overall. Recognition of the role that uncertainty plays in converting an inefficient statutory license into a penalty default license that improves market efficiency while mitigating inequality has implications beyond the statutory licensing context. It suggests a revision in the way we view the relationship between uncertainty and efficiency. Specifically, it shows that when coupled with a penalty default, uncertainty can bring greater efficiency to the marketplace by encouraging private ordering—with its tailored terms and responsiveness to rapid legal and technological change—while mitigating concerns about inequality and gamesmanship.

This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.

It has been widely assumed that deterrence has little or no role to play in counterterrorism on the grounds that the threat of punishment is powerless to dissuade ideologically inspired terrorists. But an emerging literature in strategic studies argues, and aspects of contemporary American national security practice confirm, that this account misunderstands the capacity of deterrence to address current threats. In fact, a great deal of American counterterrorisma cluster of refinements to traditional deterrence theory that speaks to a world of asymmetric threats. Yet the emergence of new deterrence has been largely lost on lawyers, judges, and legal academics, resulting in significant gaps between the practice of national security in this area and the legal architecture ostensibly designed to undergird and oversee it. In particular, the legal framework of counterterrorismprecisely the two fields thought to converge in counterterrorism. In this Article, I debut in legal scholarship a sustained analysis of new deterrence and highlight its consequences for national security law, thus ushering in a serious reckoning for jurists with counterterrorism deterrence.

Voters in twenty-four states may propose and enact legislation without any involvement from representative branches of government. In recent decades, voters have used popular lawmaking to eliminate groups’ liberty and property interests on topics such as marriage, education, public benefits, and taxes. This Article contends that these deprivations undermine principles historically associated with procedural due process, thus raising serious questions about the constitutionality of initiatives that eliminate groups’ protected interests.

The Fourteenth Amendment’s Due Process Clause embodies principles of fairness that include deliberation, dignity, and equality. The historical salience of these principles is evidenced in colonial charters and state constitutions, the Federalist Papers, antebellum cases interpreting state due process clauses, antebellum cases governing popular lawmaking, and legislative debates leading up to the Fourteenth Amendment’s ratification. These principles should inform the doctrine’s approach to defining procedural fairness.

When deprivation of liberty or property is at stake, the republican system of representative government protects these principles of fairness better than most contemporary plebiscites. Indeed, in a series of vastly understudied cases in the decade leading up to the Fourteenth Amendment’s ratification, at least eight state courts expressed normative doubts about popular lawmaking. While these cases were not premised on due process clauses, these courts nonetheless invoked principles associated with due process and republicanism when questioning popular lawmaking, providing some evidence of the dominant understanding of these terms during that era.

What is more, the requirement of due process of law, at a minimum, prohibits deprivations of liberty or property that violate other constitutional provisions. There is an enduring debate about whether the initiative process violates the non-justiciable Republican Form Clause. This Article seeks in part to inform that debate. And if, in fact, the initiative process violates the nonjusticiable Republican Form Clause, initiatives that deprive individuals of liberty or property violate the justiciable Due Process Clause.

Stark racial disparities define America’s relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently accounts for the unjustified racial disparities at play in the administration of capital punishment. We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind may unwittingly inject bias into the seemingly neutral concepts and processes of death penalty administration.

To test the effects of implicit bias on the death penalty, we conducted a study on 445 jury-eligible citizens in six leading death penalty states. We found that jury-eligible citizens harbored two different kinds of the implicit racial biases we tested: implicit racial stereotypes about Blacks and Whites generally, as well as implicit associations between race and the value of life. We also found that death-qualified jurors—those who expressed a willingness to consider imposing both a life sentence and a death sentence—harbored stronger implicit and self-reported (explicit) racial biases than excluded jurors. The results of the study underscore the potentially powerful role of implicit bias and suggest that racial disparities in the modern death penalty could be linked to the very concepts entrusted to maintain the continued constitutionality of capital punishment: its retributive core, its empowerment of juries to express the cultural consensus of local communities, and the modern regulatory measures that promised to eliminate arbitrary death sentencing.