Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive toward the delegation of judicial power to non-Article III tribunals. Meanwhile, the justices responsible for the FAA’s modern metastasis continue to question, quite vociferously, other congressional delegations of judicial power to non-Article III bodies. But those same justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. Such analytical incoherence is the focus of this Note.Part I describes the historical judicial disposition toward arbitration in the United States both before the FAA’s passage and in the decades following its enactment. Part II gives an overview of the FAA’s statutory framework, including key decisions that have come to shape it. Part III discusses the failures of past challenges to the FAA, namely Seventh Amendment and unconscionability arguments that litigants have used to avoid arbitration. Part IV develops the heart of this Note with a comparative analysis of the Supreme Court’s scrutiny of statutes and international treaties conferring adjudicatory power upon non-Article III bodies relative to the FAA’s currently untested scheme of delegation. Part V then examines one scholar’s attempt to rescue the FAA from constitutional ruin and argues that such attempts are futile given the institutional interest that Article III serves. Part VI concludes.
{"title":"Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings","authors":"Matt Stanford","doi":"10.15779/Z38GH9B835","DOIUrl":"https://doi.org/10.15779/Z38GH9B835","url":null,"abstract":"Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive toward the delegation of judicial power to non-Article III tribunals. Meanwhile, the justices responsible for the FAA’s modern metastasis continue to question, quite vociferously, other congressional delegations of judicial power to non-Article III bodies. But those same justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. Such analytical incoherence is the focus of this Note.Part I describes the historical judicial disposition toward arbitration in the United States both before the FAA’s passage and in the decades following its enactment. Part II gives an overview of the FAA’s statutory framework, including key decisions that have come to shape it. Part III discusses the failures of past challenges to the FAA, namely Seventh Amendment and unconscionability arguments that litigants have used to avoid arbitration. Part IV develops the heart of this Note with a comparative analysis of the Supreme Court’s scrutiny of statutes and international treaties conferring adjudicatory power upon non-Article III bodies relative to the FAA’s currently untested scheme of delegation. Part V then examines one scholar’s attempt to rescue the FAA from constitutional ruin and argues that such attempts are futile given the institutional interest that Article III serves. Part VI concludes.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"929"},"PeriodicalIF":2.4,"publicationDate":"2017-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46240978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Best Lesson: A Tribute to Eleanor Swift","authors":"M. Kline","doi":"10.15779/Z38NP1WH94","DOIUrl":"https://doi.org/10.15779/Z38NP1WH94","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"575"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67515319","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Eleanor Swift as Consummate Colleague","authors":"A. O'Connell","doi":"10.15779/Z38SF2MB35","DOIUrl":"https://doi.org/10.15779/Z38SF2MB35","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"579"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67548888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Intimate partner violence between incarcerated women has been largely invisible in legal scholarship and advocacy work. This Note attempts to assess the incidence and quality of intimate partner violence between incarcerated women from the incomplete and occasionally biased available data and then examines potential methods for reducing such violence. Considering several of the legal strategies that address intimate partner violence, this Note concludes that while facilitating women’s escape from their abusive partners and civil protection orders may be effective strategies for intervening in violence between incarcerated women, mandatory reporting structures and no-drop prosecution policies are ill-suited to the prison context.
{"title":"“locked together / in this small hated space”: Recognizing and Addressing Intimate Partner Violence Between Incarcerated Women","authors":"Emma Mclean-Riggs","doi":"10.15779/Z388S4JP42","DOIUrl":"https://doi.org/10.15779/Z388S4JP42","url":null,"abstract":"Intimate partner violence between incarcerated women has been largely invisible in legal scholarship and advocacy work. This Note attempts to assess the incidence and quality of intimate partner violence between incarcerated women from the incomplete and occasionally biased available data and then examines potential methods for reducing such violence. Considering several of the legal strategies that address intimate partner violence, this Note concludes that while facilitating women’s escape from their abusive partners and civil protection orders may be effective strategies for intervening in violence between incarcerated women, mandatory reporting structures and no-drop prosecution policies are ill-suited to the prison context.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1879"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67428028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Conflict between agencies and outsiders — whether private stakeholders, state governments, or Congress — is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality. This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design as well as constitutional theory, we aim to explain the creation of such conflict, largely by Congress and the White House but sometimes by the courts, and also evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to long-standing legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the Executive Branch, the application of deference doctrines when agencies disagree in the administrative record, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.
机构与外界——无论是私人利益相关者、州政府还是国会——之间的冲突是行政法的主要焦点。但在行政国家内部也有激烈的斗争:联邦机构或其内部的行为者是对手。最近的例子比比皆是，比如联邦调查局(Federal Bureau of Investigation)和国防部(Department of Defense)就破解圣贝南迪诺枪击案一名枪手的iPhone而发生的争执，国务院(State Department)和中央情报局(Central Intelligence Agency)就希拉里·克林顿(Hillary Clinton)电子邮件的某些方面进行分类而发生的冲突，以及联邦通信委员会(Federal Communications Commission)共和党和民主党成员在网络中立问题上的尖锐冲突。本文借鉴了丰富的制度理论，对过多的机构冲突和纠纷解决机制进行了阐释和分类。然后，通过将社会科学工作应用于代理和公司设计以及宪法理论，我们的目标是解释这种冲突的产生，主要是由国会和白宫造成的，但有时是由法院造成的，并评估其可取性。我们根据经济、政治和哲学标准来评估冲突的特征，为现代行政国家的制度设计提供经验教训。与现有的许多文献相比，我们关注的是机构冲突对有效民主治理的潜在积极贡献。最后，我们利用我们在机构冲突方面的描述性、正面性和规范性工作，为长期存在的法律辩论做出贡献，并指出很少引起关注的重要法律问题。例如，我们调查了行政部门内部国会或司法产生的冲突的宪法限制，当机构在行政记录中不同意时，尊重原则的应用，以及机构直接或间接在法院本身采取冲突立场的能力。
{"title":"Agencies as Adversaries","authors":"D. Farber, A. O'Connell","doi":"10.15779/Z38H12V721","DOIUrl":"https://doi.org/10.15779/Z38H12V721","url":null,"abstract":"Conflict between agencies and outsiders — whether private stakeholders, state governments, or Congress — is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound, such as the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernandino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Hillary Clinton’s emails, and the sharp conflict between the Republican and Democratic members of the Federal Communications Commission on net neutrality. This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflict and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design as well as constitutional theory, we aim to explain the creation of such conflict, largely by Congress and the White House but sometimes by the courts, and also evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to long-standing legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the Executive Branch, the application of deference doctrines when agencies disagree in the administrative record, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1375-1470"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67479220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gerken’s Federalism 3.0: Better or Worse Than It Sounds?","authors":"R. Cooter","doi":"10.15779/Z38513TW0P","DOIUrl":"https://doi.org/10.15779/Z38513TW0P","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1725"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67402191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.
{"title":"An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age","authors":"C. Westmoreland","doi":"10.2139/SSRN.3053295","DOIUrl":"https://doi.org/10.2139/SSRN.3053295","url":null,"abstract":"This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"106 1","pages":"959"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68518050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Multiracial Option: A Step in the White Direction","authors":"A. Phillips","doi":"10.15779/Z38H98ZD1S","DOIUrl":"https://doi.org/10.15779/Z38H98ZD1S","url":null,"abstract":"","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1853"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67480653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The dark side of occupational licensing—its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce—has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all 1,790 licensing boards in the U.S. and identifies their statutory membership. The results are clear: nearly all of them are controlled by professionals holding a license issued by the board itself.
{"title":"Foxes at the Henhouse: Occupational Licensing Boards Up Close","authors":"R. Allensworth","doi":"10.15779/Z38CJ87K75","DOIUrl":"https://doi.org/10.15779/Z38CJ87K75","url":null,"abstract":"The dark side of occupational licensing—its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce—has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all 1,790 licensing boards in the U.S. and identifies their statutory membership. The results are clear: nearly all of them are controlled by professionals holding a license issued by the board itself.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1567"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67450288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings. Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison. By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science. Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.
{"title":"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity","authors":"Jeremy Isard","doi":"10.15779/Z38NS0KX20","DOIUrl":"https://doi.org/10.15779/Z38NS0KX20","url":null,"abstract":"This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings. Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison. By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science. Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.","PeriodicalId":51452,"journal":{"name":"California Law Review","volume":"105 1","pages":"1223"},"PeriodicalIF":2.4,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67515479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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