¹ Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).

² U.S. Const. art. I, § 1.

³ Ibid., art. II, § 1, cl. 1.

⁴ Ibid., art. III, § 1.

⁵ See the constitutional history of the United States.

⁶ “The shorthand term “the administrative state” might actually mislead more than it clarifies, but its use is probably too pervasive to avoid.” Steven G. Calabresi and Gary Lawson, “The Depravity of the 1930s and the Modern Administrative State,” Notre Dame Law Review 94 (2018): 821, 823 n. 5. The “administrative state” includes such a vast array of agencies, programs, functions, and personnel that any generalizations about it are bound to be inaccurate. Nonetheless, the term conveys an important idea about modern government that has no obvious linguistic substitute, so I use it notwithstanding its many ambiguities.

⁷ See Lawson, Gary, “Representative/Senator Trump?” Chapman Law Review 21 (2018): 111, 119.Google Scholar

⁸ See Cummins, Tom, “Code Words,” Journal of Legal Metrics 5 (2015): 89, 98.Google Scholar

⁹ For some representative examples, see below.

¹⁰ 23 U.S. (10 Wheat.), 43.

¹¹ Madison, James, No, Federalist. 37 [1787], in The Federalist Papers, ed. Clinton Rossiter, (New York: Mentor Books, 1961).Google Scholar

¹² Members of Congress wrestle with this? Well, not so much the current Members of Congress, but in the eighteenth century they used to wrestle with it quite a bit. Debates in the first Congress regarding the postal power, for example, turned largely on questions of how much authority Congress could constitutionally give to executive officials to do things like designate the location of post roads. See Lawson, Gary and Seidman, Guy, A Great Power of Attorney: Understanding the Fiduciary Constitution (Lawrence, KS: University Press of Kansas, 2017), 118–23.Google Scholar

¹³ See Gundy v. United States, 139 S.Ct. 2116, 2130 (Alito, J., concurring in the judgment); ibid., 2131 (Gorsuch, J. with whom the Chief Justice and Justice Thomas join, dissenting); Paul v. United States, 140 S.Ct. 342 (2019) (statement of Justice Kavanagh respecting the denial of certiorari). For my thoughts on the potential but uncertain significance of Gundy, see Gary Lawson, “‘I’m Leavin’ It (All) Up to You’”: Gundy and the (Sort of) Resurrection of the Subdelegation Doctrine,” Cato Supreme Court Review (2018–2019): 31.

¹⁴ Limiting the footnote, as a concession to the shortness of life, solely to my own work (which is hardly the last word, or even necessarily the most important word, on the subject), see Lawson and Seidman, A Great Power of Attorney, 107–26; Gary Lawson, “Who Legislates?” Public Interest Law Review 22, no. 2 (1995): 147 (reviewing David Schoenbrod, Power Without Responsibility [1993]); Gary Lawson, “Delegation and Original Meaning,” Virginia Law Review 88, no. 2 (2002): 327; Gary Lawson, “Discretion as Delegation: The ‘Proper’ Understanding of the Nondelegation Doctrine,” George Washington Law Review 73, no. 2 (2005): 235; Lawson, “Representative/Senator Trump?”; Lawson, “I’m Leavin’ It (All) Up to You.”

¹⁵ See Gary Lawson, “On Reading Recipes … and Constitutions,” Georgetown Law Review 85 (1997): 1823; Gary Lawson and Guy Seidman, “Originalism as a Legal Enterprise,” Constitutional Commentary 23 (2006): 47; Gary Lawson, “Classical Liberal Constitution or Classical Liberal Construction?” New York University Journal of Law and Liberty 8 (2014): 808; Gary Lawson, “Reflections of an Empirical Reader (Or, Could Fleming Be Right This Time?),” Boston University Law Review 96 (2016): 1457. Anyone interested in the subject can read the next five footnotes. Everyone else can move on.

¹⁶ The focus of original meaning must be on concepts—cognitive tools for organizing a complex reality—rather than words, phrases, or sentences, because concepts are the fundamental units of human cognition. Words, phrases, and sentences only have cognitive, and therefore communicative, value because (and to the extent that) they represent concepts; otherwise, they are just marks and sounds that have no more relevance than random assortments of rocks or the lowing of oxen. For a brief introduction to the crucial role of the theory of concepts to interpretation (and an even briefer introduction to the theory of concepts hinted at in this and the next footnote), see Lawson, “Reflections of an Empirical Reader,”1464-71.

¹⁷ Concepts are “integrations of units—aspects of the physical, mental, moral, or relational world—into mental entities that distinguish those units from other units in the knower’s cognitive field and then serve as ‘file folders’ to store information about those integrated aspects of reality” (ibid., 1467-68). The meaning of a concept is the referents—the aspects of reality—that the concept organizes for the knowing mind. The mind must have criteria for assigning aspects of reality to its various file folders. The criteria are not themselves the meaning of the concept—the concept means its referents—but they are the process by which the concept’s referents are assigned to that concept rather than some other concept. Because concepts are an epistemological tool for organizing reality, the criteria that drive the organizing process are determined by the cognitive needs of a particular mind. In that sense, the choice of criteria for inclusion of something in a concept is radically individualized; every mind has its own unique cognitive context and therefore its own patterns of mental organization. But if, as an empirical matter, there are observable commonalities among cognitive contexts of particular knowers, there will likely be substantial overlaps among the cognitive contexts, and therefore the criteria for conceptual construction for groups of people will have strong similarities. That empirical fact—along with conventions about the use of specific psycholinguistic symbols to turn abstract mental entities (concepts) into objects of perception (symbols, letters, words, and so on) —is what makes effective communication possible.

¹⁸ When anyone, including an author, uses words as a cognitive tool (as opposed to using them as the equivalent of an oxen’s lowing), that person has explicit or implicit criteria for including and excluding aspects of reality from that concept. If you are trying to understand what someone is saying, you need to know something about the conceptual criteria that the person is using to organize reality.

¹⁹ The declared author of the Constitution is “We the People.” There is obviously no such person. “We the People” is a hypothetical legal construct. The physical “author” of the Constitution was some group of real-world people. (Which group—the Committee of Detail, the Constitutional Convention, the ratifying conventions, the armed public, and so forth—is open to question.) Anytime there is joint authorship of an act of communication, the “author” of that communication is also a hypothetical construct. And if the intended recipient of the communication is anything other than a single concrete mind, the audience will also be a hypothetical construct (since only a single mind can think and understand). Anyone interested in the role of hypothetical construction of authorship and readership in constitutional interpretation can read Gary Lawson and Guy Seidman, “Originalism as a Legal Enterprise,” which addresses the subject at interminable length, and Gary Lawson, “Classical Liberal Constitution or Classical Liberal Construction?” which adds some embellishments.

²⁰ If you are attempting a communicative act, you are presuming that someone out there in the world has a cognitive organizing structure similar enough to yours so that the aspects of reality that you are describing with your psycholinguistic symbols will be recognized by the audience. Otherwise, communication is pointless. But because every mind has its own cognitive context, there will not always be a perfect and complete overlap among the conceptual criteria of author and audience. There has to be some—and some substantial—overlap to make communication possible; and oftentimes, as with horseshoes and hand grenades, close is good enough. But what about the areas of difference? If there is any difference in conceptual criteria, does the author intend for the author’s framework or the audience’s framework to control (keeping in mind that, in the context of the Constitution, we are talking about hypothetical, constructed authors and audiences)? In many contexts the nature of the communicative enterprise dictates that the author’s intention is most likely that the audience’s cognitive context should control meaning. That is a good bet in the case of the Constitution, which reads much more like an externally directed legal instrument than like a private diary or a poem. Since the audience for the Constitution is a hypothetically constructed reader, that hypothetically constructed reader’s cognitive context determines meaning. Hence, all meaning is ultimately grounded in authorial intention, but as an operational matter that often requires reference to the cognitive framework of a reader. That is why original constitutional meaning operationalizes to a form of public meaning, where the “public” is a hypothetically constructed single mind. See Lawrence B. Solum, “Intellectual History as Constitutional Theory,” Virginia Law Review 101 (2015): 1111, 1136. So constitutional meaning is (hypothetical) authorial meaning in theory and (hypothetical) public meaning in practice.

²¹ This formulation of the ultimate question elides the complex matter of specifying what makes an observer reasonable and informed. What are the characteristics of this hypothetical figure whose hypothetical understandings constitute the meaning of the Constitution? That is a topic for a book rather than an article. One point worth mentioning here, however, is that the Constitution appears to be written in what amounts to a dialectic of English that one might call “legal English.” See John O. McGinnis and Michael B. Rappaport, “The Constitution and the Language of the Law,” William and Mary Law Review 59 (2018): 1321. This suggests that any hypothetical reasonable observer must be at least conversant in legal English.

²² See Ricky Nelson, “Garden Party,” on the album Garden Party (Decca 1972).

²³ See Giles Jacob, A New Law Dictionary 8th ed. (1782 [1729]) (defining a factor as “a merchant’s agent, residing beyond the seas, or in any remote parts”).

²⁴ See Anonymous, (1701) 88 Eng. Rep. 1487 (K.B.) (Case 857); 12 Mod. 514–15 (“Every factor of common right is to sell for ready money. But if he be a factor in a sort of dealing or trade where the usage is for factors to sell on trust, there, if he sell to a person of good credit at that time, and he afterwards becomes insolvent, the factor is discharged.”).

²⁵ Samuel Livermore, A Treatise on the Law of Principal and Agent and of Sales by Auction, Volume 1 (1818), 126.

²⁶ For a compendium of sources on the staggering influence of Bacon’s Abridgement, see Lawson and Seidman, A Great Power of Attorney, 113.

²⁷ Matthew Bacon, A New Abridgement of the Law, Volume 1 (1730), 203. “Attorney” in this context does not mean a lawyer. It simply means someone who is authorized to act on behalf of another—essentially what today we would call an “agent.” See Giles Jacob, A New Law Dictionary, 6th ed. (1750) (defining attorneys as “those Persons who take upon them the Business of other Men, by whom they are retained”).

²⁸ See Lawson and Seidman, A Great Power of Attorney, 113–14.

²⁹ Livermore, A Treatise on the Law of Principal and Agent and of Sales by Auction, 54.

³⁰ Joseph Story, Commentaries on the Law of Agency, as a Branch of Commercial and Maritime Jurisprudence § 13, at 14 (1844).

³¹ James Kent, Commentaries on American Law, Volume 2 (1827), 496. Modern scholars have questioned whether the Latin maxim cited by Kent actually had as broad a meaning as Kent attributed to it. See Patrick W. Duff and Horace E. Whiteside, “Delegata Potestas Non Potest Delegari: A Maxim of American Constitutional Law,” Cornell Law Review 14 (1929): 168; Sean P. Sullivan, “Power, But How Much Power? Game Theory and the Nondelegation Principle,” Virginia Law Review 104 (2018): 1229, 1248 (relying on the Duff/Whiteside account). It is irrelevant whether or not these scholars were right as a matter of legal history. What matters for understanding founding-era agency law is what reasonable founding-era legal actors believed, not whether they were historically right to believe it. Moreover, many of the early sources on agency law, such as Bacon’s Abridgement, made no use of the Latin maxim when describing the law of subdelegation. The substantive law of subdelegation preceded Kent’s (possibly incorrect) use of the maxim to describe it rather than vice versa.

³² Lawson and Seidman, A Great Power of Attorney, 114.

³³ Livermore, A Treatise on the Law of Principal and Agent and of Sales by Auction, 55. Again, “attorney” here simply means “agent.” It does not mean “lawyer.”

³⁴ Story, Commentaries on the Law of Agency, 15–16.

³⁵ Cockran v. Irlam, 103 Eng. Rep. 393, 394 (1814) (dictum).

³⁶ Lawson and Seidman, A Great Power of Attorney, 115.

³⁷ Mechem, Floyd R., “Delegation of Authority by an Agent,” Michigan Law Review 5 (1906): 94, 99.CrossRefGoogle Scholar

³⁸ Story, Commentaries on the Law of Agency, 16–17.

³⁹ See Lawson and Seidman, A Great Power of Attorney. For some elaborations on and extensions of the argument in the book, see Gary Lawson and Guy Seidman, “Authors’ Response: An Enquiry Concerning Constitutional Understanding,” Georgetown Journal of Law and Public Policy 17 (2019): 491.

⁴⁰ See Lawson and Seidman, A Great Power of Attorney, 43–44.

⁴¹ United States Constitution, Preamble.

⁴² I say “in chief measure” because the Constitution is only partly, or analogically, a fiduciary instrument. It has certain features that simply cannot be possessed by ordinary fiduciary instruments—most notably provisions for binding third parties who are not signatories to the actual document. Nonetheless, the Constitution is as much a fiduciary instrument as the nature of the arrangement permits.

⁴³ See Lawson and Seidman, A Great Power of Attorney, 49–75.

⁴⁴ See John Mikhail, “Is the Constitution a Power of Attorney or a Corporate Charter? A Commentary on A Great Power of Attorney: Understanding the Fiduciary Constitution by Gary Lawson and Guy Seidman,” Georgetown Journal of Law and Public Policy 17 (2019): 407.

⁴⁵ See Leib, Ethan J. and Shugerman, Jed Handelsman, “Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation,” Georgetown Journal of Law and Public Policy 17 (2019): 463, 477–79.Google Scholar

⁴⁶ See Lawson and Seidman, A Great Power of Attorney, 55 (describing such statements from the likes of James Madison and Caleb Nelson).

⁴⁷ No act of communication can contain within itself all of the rules governing its own interpretation. Even if a communicative act purported to set forth its own interpretative rules (“read everything I say literally, according to conventional semantic meaning at time X”), one would need to know whether to take the instructions literally, metaphorically, sarcastically, and so on. All communication can thus only be understood in light of background norms of communication. One does not read poems the same way that one reads health care proxies. A hypothetically constructed reasonable reader of the United States Constitution would locate that act of communication within a family of instruments that can loosely be labelled “fiduciary instruments.” That classification triggers presumptive application of a set of interpretative norms typically employed in the communicative context of fiduciary instruments. For a detailed discussion of how different kinds of documents can only be sensibly interpreted in light of different sets of background interpretative principles suited to those kinds of documents, see Lawson and Seidman, A Great Power of Attorney, 8-11. Would reasonable eighteenth-century observers who were not lawyers actually understand the basic character of fiduciary law? Of course they would. In an era in which sudden deaths were frequent, communication was uncertain, and lawyers were scarce, ordinary people would be unlikely to get through life without being agents, principals, or both. “Anyone employed in business or commerce would be familiar with, inter alia, managers and factors. Anyone who owned land would likely be familiar with stewards. And virtually everyone would be familiar with executors and guardians” (ibid., 29). For more detail on the breadth of founding-era knowledge of agency law principles, see Robert G. Natelson, “The Legal Origins of the Necessary and Proper Clause,” in Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause (New York: Cambridge University Press, 2010), 56; Robert G. Natelson, “Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders,” Texas Review of Law and Politics 11 (2007): 239, 247 n. 32, 248 n. 33.

⁴⁸ United States Constitution art. I, § 8, cl. 18.

⁴⁹ For the book-length argument to this effect, see Lawson, Miller, Natelson, and Seidman, The Origins of the Necessary and Proper Clause.

⁵⁰ Much of what passes for constitutional analysis is not really very interested in what the Constitution means. Constitutional doctrine, for example, is primarily about analyzing court decisions, and those court decisions often have little to do with the actual meaning of the Constitution. Scholarly analysis might or might not consider the Constitution relevant, but almost no scholarly analysis is primarily, much less exclusively, concerned with the Constitution’s meaning. For example, Jack Balkin’s account of constitutional interpretation (see Jack M. Balkin, Living Originalism [Cambridge, MA: Harvard University Press, 2011]) prescribes nine criteria by which interpretative theory needs to be evaluated, and only one of those criteria is the ascertainment of communicative meaning. See Gary Lawson, “Dead Document Walking,” Boston University Law Review 92 (2012): 1225, 1227-28. My focus in this article is solely on the ascertainment of communicative meaning; I say nothing about political legitimacy, social justice, or any normative concerns.

⁵¹ See, e.g., Gundy v. United States, 139 U.S. 2116, 2133-35 (2019) (Gorsuch, J., dissenting). Indeed, I derived the subdelegation principle (without calling it a subdelegation principle) in this fashion for many years before Robert Natelson schooled me on the Constitution’s fiduciary underpinnings that ground such a derivation. See Lawson, Delegation and Original Meaning.

⁵² See, e.g., Martin H. Redish, The Constitution as Political Structure (New York: Oxford University Press, 1995), 136-37 (normative principle of political commitment); David Schoenbrod, Power without Responsibility: How Congress Abuses the People Through Delegation (New Haven, CT: Yale University Press, 1993) (democratic theory).

⁵³ Lawson, “Representative/Senator Trump?” 119.

⁵⁴ See Lawson, Gary, “The Rise and Rise of the Administrative State,” Harvard Law Review 107 (1994): 1231, 1233–37CrossRefGoogle Scholar.

⁵⁵ 47 U.S.C. § 307 (2018).

⁵⁶ Emergency Price Control Act, 56 Stat. 23 (1942).

⁵⁷ 15 U.S.C. § 79k (2018).

⁵⁸ 12 U.S.C. § 5211 (2018).

⁵⁹ Ibid., § 5202.

⁶⁰ 34 U.S.C. § 29013(d) (2018).

⁶¹ See National Broadcasting Co. v. United States, 319 U.S. 190 (1943); Yakus v. United States, 321 U.S. 414 (1944); American Power and Light Co. v. SEC, 329 U.S. 90 (1946); Gundy v. United States, 139 S.Ct. 2116 (2019).

⁶² Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting).

⁶³ Reuel E. Schiller, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,” Michigan Law Review 106 (2007): 399, 413 (footnotes omitted).

⁶⁴ Felix Frankfurter, The Public and Its Government (New Haven, CT: Yale University Press, 1930), 150–51. One should note that Professor Frankfurter, writing before the New Deal, added: “while expert administrators may sift out issues, elucidate them, bring the light of fact and experience to bear upon them, the final determinations of large policy must be made by the direct representatives of the public and not by the experts” (ibid.,159–60). Justice Frankfurter, in later years, never made any such statement in a judicial opinion.

⁶⁵ Landis, James M., The Administrative Process (New Haven, CT: Yale University Press, 1938), 155.Google Scholar

⁶⁶ Ibid., 23.

⁶⁷ These words were written before Brady signed with Tampa Bay. His move does not detract from the legacy, so I have left them alone.

⁶⁸ Edward H. Stiglitz, “Delegating for Trust,” University of Pennsylvania Law Review 166 (2018): 633, 644. If one wanted to pick out a single article as an introduction to the role of expertise in rationalizing the modern administrative state, one could do much worse than to start with Sidney A. Shapiro, “The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences,” Wake Forest Law Review 50 (2015): 1097.

⁶⁹ Meazell, Emily Hammond, “Presidential Control, Expertise, and the Deference Dilemma,” Duke Law Journal 61 (2012): 1763, 1772.Google Scholar

⁷⁰ Mistretta v. United States, 488 U.S. 361, 372 (1989).

⁷¹ This is essentially the position outlined, with great sophistication, by Leib and Shugerman, “Fiduciary Constitutionalism,” 478-82.

⁷² See Langbein, John H., “Reversing the Nondelegation Rule of Trust-Investment Law,” Missouri Law Review 59 (1994): 105.Google Scholar

⁷³ See ibid., 108-9.

⁷⁴ Restatement (Third) of Trusts § 80 (2007).

⁷⁵ Langbein, “Reversing the Nondelegation Rule of Trust-Investment Law,” 110 (footnote omitted).

⁷⁶ Restatement (Third) of Trusts comment (d)(1). See also id. § 90(c)(2) (“the trustee must … act with prudence in deciding whether and how to delegate authority”).

⁷⁷ See, e.g., Gillian E. Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege,” Harvard Law Review 131 (2017): 1.

⁷⁸ See Calabresi and Lawson, “The Depravity of the 1930s and the Modern Administrative State,” (pretty brutally letting Professor Metzger have it).

⁷⁹ See Jacob, A New Law Dictionary (“as generally used in law, it is a right to receive the profits of land, and to dispose of the land itself (in many cases) for particular purposes, as directed by the lawful owner”).

⁸⁰ See Lawson and Seidman, A Great Power of Attorney, 61-62.

⁸¹ See ibid., 37-40, 62.

⁸² United States Constitution art. I, § 3, cl. 7.

⁸³ The outline of that project is found in Lawson, “Reflections of an Empirical Reader.”

⁸⁴ See Gary Lawson, Federal Administrative Law, 8th ed. (St. Paul, MN: West Academic Publishing, 2019), 52-53.

⁸⁵ Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

⁸⁶ See, e.g., Mikhail, “Is the Constitution a Power of Attorney or a Corporate Charter?”

⁸⁷ The “complexity” of the modern world does not necessarily call for more rather than less centralized direction. See Richard A. Epstein, Simple Rules for a Complex World (Cambridge, MA: Harvard University Press,1995).

⁸⁸ See Gundy v. United States, 139 S.Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting) (“Congress can also commission agencies or other experts to study and recommend legislative language”); Hon. Stephen Breyer, “Reforming Regulation,” Tulane Law Review 59 (1984): 4, 11.

⁸⁹ Gundy, 139 S.Ct. at 2145 (Gorsuch, J., dissenting).

⁹⁰ The tiny fraction of that literature with which I have any familiarity is represented by Evan Selinger and Robert P. Crease, eds., The Philosophy of Expertise (New York: Columbia University Press, 2006); H. M. Collins and Robert Evans, Rethinking Expertise (Chicago: University of Chicago Press, 2007); Scott Brewer, “Scientific Expert Testimony and Intellectual Due Process,” Yale Law Journal 107 (1998): 1535.

⁹¹ For what strikes me, as an ignoramus, as a readable and thoughtful introduction to the problem, see Alvin I. Goldman, “Experts: Which Ones Should You Trust?” in Selinger and Crease, The Philosophy of Expertise, 14, 18–22.

⁹² See United States Constitution art. I, § 2, cl. 1.

⁹³ See ibid. art. I, § 3, l. 1; amend. VII, cl. 1.

⁹⁴ See James Madison, Federalist No. 53 [1788], in Federalist Papers, Clinton Rossiter, ed. (1961) (“Turning our attention to the periods established among ourselves, for the election of the most numerous branches of the State legislatures, … [i] n Connecticut and Rhode Island, the periods are half-yearly. In the other States, South Carolina excepted, they are annual. In South Carolina they are biennial”).

⁹⁵ Ibid.

⁹⁶ See James Madison, Federalist No. 62 [1788], in Federalist Papers, Clinton Rossiter, ed. (1961).

⁹⁷ I am henceforth using the term “subdelegation” imprecisely to include both literal subdelegation of decisional authority, whether or not that is legally permissible, and reliance on outside sources in the performance of duties that the fiduciary concedes must be personally performed.

⁹⁸ Do moral philosophers possess this kind of expertise? See Peter Singer, “Moral Experts,” in Selinger and Crease, eds., The Philosophy of Expertise, 187. The answer depends on one’s conception of moral knowledge. If true moral knowledge comes from reading the Bible, presumably anyone with ordinary language skills can acquire it. If it comes from identifying the results of a hypothetical process of reflective equilibrium engaged in by a random university faculty in the United States, perhaps there are people who would be experts in that enterprise. To know whether expertise is relevant to anything, you have to know what knowledge in that context looks like.

⁹⁹ I have thus far avoided defining terms like “expert” and “expertise.” A full and careful treatment of the subject—which I emphasize again is not this essay—would need to define those terms with some precision. See, e.g., Brewer, “Scientific Expert Testimony and Intellectual Due Process,” 1589 (“An expert is a person who has or is regarded as having specialized training that yields sufficient epistemic competence to understand the aims, methods, and results of an expert discipline. An expert discipline is a discipline that in fact requires specialized training in order for a person to attain sufficient epistemic competence to understand its aims and methods, and to be able critically to deploy those methods, in service of these aims, to produce the judgments that issue from its distinctive point of view.”).

¹⁰⁰ I explore this problem, though not really in any more depth than I am doing here, in Gary Lawson, Evidence of the Law: Proving Legal Claims (Chicago: University of Chicago Press, 2017) and Gary Lawson, “The Epistemology of Second Best,” Texas Law Review 100 (2022) (forthcoming).

¹⁰¹ Scott Brewer spent more than a hundred pages demonstrating just how big a problem this is. See Brewer, “Scientific Expert Testimony and Intellectual Due Process.”

¹⁰² See ibid.,1624–34.

¹⁰³ Ibid., 1594.