Presidential betting markets predict election outcomes more
accurately than polls because of their ability to effectively aggregate information. Empirical research and theory indicates that the result extends to other contexts. Betting markets, more formally called information markets, provide accurate predictions about future product sales, box office receipts, and other future events. Moreover, market predictions generally outperform other prediction mechanisms. This paper argues that empirical research and theory indicates that we should use information markets’ predictive power to make administrative decisions. In addition, it presents a model information market designed to help policy makers evaluate policies prior to their implementation by providing policy makers information about the policies’ effects in the form of market predictions. To design such a market, it is necessary to determine how the market should pay off bettors when the agency does not implement a policy because the market predicts it will have an adverse effect. The problem is that bets pay off based on the outcome of an event, but when the policy makers decide not to implement a policy, the policy has no effect and thus it is unclear how to compensate bettors. This paper shows that through clever market design it is possible to return the market price of a bet, prior to an agency’s decision not to implement the policy on which the bet depends, without fear of market manipulation. Consequently, even in cases where using market predictions to make administrative decisions appears problematic, it is possible.
Note
A Test for Criminally Instructional Speech
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.
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.