115 Yale L.J. 1256 (2006)

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was minimal and congressional statutes were either self-executing or so detailed as to preclude significant administrative discretion. Such administration as there was went on within executive departments under the exclusive control of the President, and judicial review of administrative action was virtually unknown. From this perspective the administrative state of the twenty-first century, with its independent commissions, combinations of legislative, executive, and judicial authority in administrative agencies, broad delegations of administrative discretion, limitations on presidential control of administration, and ubiquitous opportunities for judicial review of executive action, represents a radical transformation of original constitutional understandings.

There is much truth in this conventional vision of nineteenth-century governance, but far from the whole truth. This Article begins a project of recovering the lost one hundred years of federal administrative law. For statutory sources, agency practice, and common law actions in the Federalist period reveal a quite different and more nuanced picture. From the very beginning some administrators were clothed with broad statutory authority, made general rules, adjudicated cases, were located outside of departments, and were tightly bound to congressional oversight and direction. And common law actions provided a judicial review that was often more intrusive and robust than we observe in contemporary practice. If there was an original understanding of the structure, function, and control of administration in early federal law, Federalist practices suggest that it was a much more complex and pragmatic understanding than our conventional account admits.

115 Yale L.J. 1450 (2006)

This Note proposes a new remedy for criminal defendants when the government fails to fulfill its constitutional duty to disclose favorable evidence. When evidence that should have been disclosed earlier emerges during or shortly before trial, the court should consider instructing the jury on the duty to disclose and allowing the defendant to argue that the failure to disclose raises a reasonable doubt about the defendant's guilt. Even if rarely granted, this remedy could prevent violations by encouraging prosecutorial vigilance.

The new procedures for electronic discovery might encourage companies to spy on their own workers. To prevent that from happening, I argue that courts should apply the new rules—which will likely take effect in December—in a way that discourages the abuse of surveillance technologies and protects workers’ privacy. When weighing the benefits of a particular discovery request against the costs, judges should consider an invasion of workers’ privacy as one of the costs.