This Note introduces the category of criminally instructional speech and proposes a test for such speech under the First Amendment. Criminally instructional speech is expression that provides information helpful in the commission of a crime. Some such speech already qualifies as aiding and abetting and is thus punishable under the criminal law. In constructing a test for the whole category of criminally instructional speech, the aiding and abetting paradigm provides a better model than those available in First Amendment law. The current case law, however, tends to ignore the aiding and abetting doctrine in favor of an incitement test. An analysis of this case law exposes the weaknesses of such an approach and the preferability of a test based on aiding and abetting.
Note
Administrative Reconsideration
The United States Code and Code of Federal Regulations are replete with detailed provisions granting agencies engaged in adjudication the power to reopen their own final judgments. The question addressed in this paper is whether federal agencies can and should have the power to reconsider their final decisions in the absence of an express grant of authority in a statute or regulation. Federal courts have generally said that federal agencies do possess the “inherent” power to reconsider in most circumstances. Part I of this paper provides the first comprehensive overview of the doctrine of administrative reconsideration and shows where federal courts are more or less likely to find that the presumption of inherent power holds. Part I concludes with a brief overview of state law in this area, with particular focus on the division among state courts over whether state agencies possess an inherent power to reconsider. Part II considers whether the inherent power to reconsider is justified for federal agencies and presents three arguments to show that it is not. First, and most importantly, while various Supreme Court precedents have been marshaled in support of an inherent power to reconsider, a more thorough reading of these cases indicates that they may in fact foreclose it. Second, Congress and agencies have pervasively regulated in the area of administrative reconsideration to such an extent that an inherent power to reconsider should be heavily disfavored. Third, an inherent power to reconsider is normatively unattractive because it fosters considerable procedural uncertainty. The paper concludes by setting out a more appropriate yet modest rule: Federal administrative agencies should only have the power to reconsider adjudications when that power has been expressly granted by Congress, or when an agency has promulgated a valid reconsideration provision pursuant to its rulemaking processes.
A Litigation Association Model to Aggregate Mass Tort Claims for Adjudication
The judicial system does not adequately accommodate mass tort claims. Even the Rule 23 class action, which is otherwise a powerful aggregation tool, often fails to facilitate trying these claims. This Note argues that a combination of associational standing and statistical sampling produces a new and more effective means to aggregate mass tort claims for adjudication. Claimants can organize an unincorporated association; the association can file a suit seeking redress for its members’ injuries; and evidence can be presented in aggregated form. The proposal is a significant departure from the traditional method of representative litigation—the class action. Yet its predicates are, separately, well established. Moreover, this Note argues that aggregation through association may be preferable to aggregation through class action for several reasons: for example, it may reduce the cost of litigation and perhaps more significantly, it overcomes the choice of law problems that often prevent certification of a mass tort class action under Rule 23.
The relationship between associational standing and sampling is significant and has thus far gone unrecognized: Sampling allows aggregated evidence to take the place of individualized evidence and thereby overcomes the most significant limitation on the use of associational standing in damages actions. The proposal does not require satisfaction of the various prerequisites to class certification contained in Rule 23. The Note examines the history of representative group litigation and concludes, however, that those prerequisites are unnecessary where representation is based on consent (as it is in this Note’s proposal) as opposed to a common interest (what underlies Rule 23).