Vol. 103 Issue 4

In 2013, the Supreme Court made the offhand comment that empirical models and their estimations or predictions are not “findings of fact” deserving of deference on appeal. The four Justices writing in dissent disagreed, insisting that an assessment of how a model works and its ability to measure what it claims to measure are precisely the kinds of factual findings that the Court, absent clear error, cannot disturb. Neither side elaborated on the controversy or defended its position doctrinally or normatively. That the highest Court could split 5–4 on such a crucial issue without even mentioning the stakes or the terms of the debate, suggests that something is amiss in the legal understanding of models and modeling.

This Article does what that case failed to do: it tackles the issue head-on, defining the legal status of a scientific model’s results and of the assumptions and choices that go into its construction. I argue that as a normative matter, models and their conclusions should not be treated like facts. Models are better evaluated by a judge, they do not merit total deference on appeal, and modeling choices are at least somewhat susceptible to analogical reasoning between cases. But I show that as a descriptive matter, courts often treat models and their outcomes like issues of fact, despite doctrines like Daubert that encourage serious judicial engagement with modeling. I suggest that a perceived mismatch between ability and task leads judges to take the easier route of treating modeling issues as facts, and I caution that when judges avoid hard questions about modeling, they jeopardize their own power and influence. . . .

Few areas of the Supreme Court’s federal courts jurisprudence raise as many questions—and provide as few coherent answers—as the permissible scope of Congress’s power to invest the “judicial [p]ower of the United States” in actors other than judges who enjoy Article III’s tenure and salary protections, and, in the case of criminal trials, to do so without the protections (especially the right to a local jury) enshrined in Article III, Section 2, Clause 3. Historically, the Court has identified three categories in which such “non-Article III” federal adjudication is permissible: (1) all adjudication by federal “territorial” courts; (2) certain criminal prosecutions before military judges; and (3) resolution of “public rights” disputes by non-Article III federal courts or federal administrative agencies. But it has never sought to explain whether the decisions articulating these principles “in fact support a general  proposition and three tidy exceptions . . . or whether instead they are but landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night.” . . .

In February 2000, The American Lawyer reported that the venerable law firm of Cravath, Swaine & Moore (Cravath) entered into an agreement to help its client, Time Warner Inc. (Time Warner), merge with American Online (AOL). Normally, such an engagement would not be news. In 2013, for example, Cravath was legal counsel on fifty-four mergers totaling $144 billion dollars in total value. The details of few of these engagements were reported, despite much more widespread news coverage of the legal industry. However, the AOL agreement was different—for a reason that had nothing to do with the merger itself. The reason this contract drew so much attention and scrutiny was the nature of the fee that Cravath and Time Warner had negotiated. The contract called for a $35 million fee to be paid to Cravath if, and only if, the merger with AOL closed successfully. A small flat fee would be paid if the merger was unsuccessful. This agreement required Cravath to put some of its proverbial “skin in the game.” As reported at the time, this fee arrangement was highly unusual and was considered a new frontier in mergers and acquisitions (M&A) legal fees. . . .

On July 20, 1969, the Apollo 11 lunar module, Eagle, landed on the moon, definitively ending the space race with the Soviet Union and signaling what was hoped to be a bright new dawn for humanity. In December 2013, the Chinese Yutu (Jade Rabbit) lunar rover touched down on the moon, making China only the third country to successfully land a rover on the lunar surface. No longer are there two clear superpowers in space; the eagle has reigned supreme for more than four decades, but the hare is catching up.

Today, space is a relatively peaceful place from an international law perspective. Since the collapse of the Soviet Union in December 1991, and the official end of the Cold War, space exploration has become a global endeavor, with multiple participating countries and widespread cooperation. Joint achievements such as the construction of the International Space Station (ISS) exist solely thanks to this collaboration and could probably never have been completed with the resources and technologies of one country alone. . . .

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice. To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets of infirmities—those of the in-court witness and those of the original declarant. With respect to hearsay evidence, policymakers fear that jurors do not attend appropriately to the infirmities of the original declarant—who is not subject to in-court crossexamination—and will give hearsay evidence undue weight. . . .

The central premise of the nondelegation doctrine prohibits Congress from delegating its Article I legislative powers. Yet Congress routinely delegates to agencies the power to promulgate legislative rules—rules that carry the force and effect of law just as statutes do. Given this tension between the nondelegation doctrine and the modern regulatory state, some scholars have attacked the nondelegation doctrine as fictional. Little scholarly attention, however, has been given to considering how the central premise of the nondelegation doctrine coheres with—or fails to cohere with—administrative law as a whole. This Article takes up that task, exploring what might happen to administrative law if the Supreme Court jettisoned the central premise of the nondelegation doctrine and frankly admitted that agency rulemaking constitutes an exercise of delegated legislative power. Specifically, this Article analyzes administrative law’s most central doctrines—including the test used to define legislative rules, Chevron and Auer deference, arbitrary and capricious review, procedural due process, and procedural constraints on agency rulemaking—and considers whether these doctrines stand in opposition to or work harmoniously with the nondelegation doctrine. . . .

Josh Powell was fourteen years old when he realized he was falling behind academically. Homeschooled under Virginia’s religious exemption statute, Powell had never seen the inside of a classroom, taken a standardized test, or had his work reviewed by a licensed teacher. Neither the state nor the local school board imposed any requirements on his parents’ homeschool program, and no professional educator had ever approved his parents’ curriculum. His parents were free to ignore subjects—such as math and science—as they saw fit, did not have to provide a minimum number of instructional hours, and did not need to demonstrate proficiency in any subject matter before they could teach it. In fact, they did not even have to show possession of a high school diploma or its equivalent. . . .