Showing papers in "Columbia Law Review in 1987"

Lochner's Legacy

Abstract: The received wisdom is that Lochner was wrong because it involved “judicial activism”: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government. This view has spawned an enormous literature and takes various forms. The basic understanding has been endorsed by the Court in many cases taking the lesson of the Lochner period to be the need for judicial deference to legislative enactments. The principal purpose of this essay, descriptive in character, is to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: government inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements. Whether there was a departure from the requirement of neutrality, in short, depended on whether the government had altered the common law distribution of entitlements. Market ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship. This understanding of the Lochner period is faithful to what the Court said when it both engaged in and abandoned Lochner-like reasoning, and it points to an important element in the Lochner Court's approach, one that has little to do with an aggressive judicial role in general.

Does Kant Have a Theory of Punishment

Abstract: Several years ago I thought that I understood Kant’s theory of criminal punishment—an understanding aided by a Rawlsian reconstruction of certain aspects of that theory.1 I thought that Kant’s theory was profound, inspiring, and—although subject to certain problems—the only morally acceptable theory of punishment.2 I was confident that all philosophical work on problems of crime and punishment could be done within a generally Kantian perspective (which I took to be an unambiguously retributive perspective), and some of my own work exhibited that confidence to an uncritical degree.3

How Cartels Punish: A Structural Theory of Self-Enforcing Collusion

Abstract: * Law Clerk to the Hon. James K. Logan, United States Court of Appeals for the 10th Judicial Circuit; Assistant Professor, Northwestern University School of Law (beginning August 1987); Research Fellow, American Bar Foundation (beginning August 1987). B.A. Yale University, 1981;J.D. Yale University, 1986; Ph.D Candidate (Economics), Massachusetts Institute of Technology. I thank John Donohue, Henry Hansmann, Al Klevorick, George Priest, Garth Saloner, Steven Salop, Richard Schmalensee, Louis Schwartz, Oliver Williamson, and participants of seminars at Cardozo, Duke, Emory, Iowa, Northwestern, and Yale for valuable comments. Financial support from the Yale Center for Studies in Law, Economics and Public Policy is gratefully acknowledged. 1. Structural theories have many antecedents. See, e.g., G. Stigler, A Theory of Oligopoly, in The Organization of Industry 39-63 (1968); Hay & Kelley, An Empirical Survey of Price Fixing Conspiracies, 17 J.L. & Econ. 13 (1974). More generally, these theories follow the Structure-Conduct-Performance (S-C-P) paradigm of Joseph Bain, under which structural variables (such as seller concentration) were modeled to affect conduct variables (such as collusion or competition) which in turn were to affect performance variables (such as profits). J. Bain, Industrial Organization 43 (2d ed. 1968). Although conduct can conversely affect structure, see, e.g., infra note 4 (predatory behavior will influence seller concentration), such feedback effects are beyond the scope of this Article. Bain's S-C-P paradigm has gained widespread acceptance. See, e.g., F. Scherer, Industrial Market Structure and Economic Performance 3-7 (2d ed. 1980); Weiss, The Structure-Conduct-Performance Paradigm and Antitrust, 127 U. Pa. L. Rev. 1104 (1979). 2. For example, Judge Richard Posner has championed a structural approach for detecting and punishing antitrust collusion. See R. Posner, Antitrust Law: An Economic Perspective 55 (1976); R. Posner & F. Easterbrook, Antitrust: Cases, Economics Notes and Other Materials 336 (1981); 6 P. Areeda, Antitrust Law ? 1430, at 178-82 (1986). 3. The Federal Trade Commission has examined structural characteristics to focus investigative resources on suspect industries. For a history of the FTC's attempts at targeting collusion, see D. Pender & M. Coate, Case Generation and Remedies 8 (F.T.C. Collusion Project Working Paper No. 3, June 29, 1984) (unpublished paper on file at the Columbia Law Review). 4. At least one court has considered structural evidence as a plus-factor for inferring the actual existence of collusion. See, e.g., Wall Products Co. v. National Gypsum Co., 326 F. Supp. 295 (N.D. Calif. 1971) (stressing structural characteristics of the relevant market that predisposed it to collusion); see also R. Posner, supra note 2, at 73 & n.52 (discussing implications of case). While this Article investigates how structure affects collusive behavior-that is, efforts to make competitors cooperate-the structural approach also applies to identifying

Excusing Harmless Errors in the Execution of Wills: A Report on Australia's Tranquil Revolution in Probate Law

Abstract: An experiment of historic importance for the future of the AngloAmerican law of wills has been in progress over the last decade in Australia. Two states of the federation, Queensland and South Australia, have enacted prototype statutes that abrogate the traditional rule of strict compliance with the requirements of Wills Act formality. The new statutes enable the probate court to validate a will even when the testator has failed to comply fully with the Wills Act. The Queensland statute uses language for which I bear some responsibility; it authorizes \"substantial compliance\" with the Wills Act. In the hands of the Queensland courts the measure has been a flop. They have read \"substantial\" to mean \"near perfect\" and have continued to invalidate wills in whose execution the testator committed some innocuous error. In South Australia, by contrast, the legislation employs different words, the so-called \"dispensing power,\" directed to the same end. This statute has produced a triumph of law reform. The South Australian courts have welcomed their new power to excuse harmless errors, and they have used it vigorously. An ample case law, which is the main subject of this Article, provides a vantage point for assessing the reform. The cruelty of the old law has disappeared. The concerns that motivated the former strict compliance rule have been put to the

Serpents and doves: a note on kantian legal theory

Abstract: Politics says, "Be ye wise as serpents;" morality adds, as a limiting condition, "and guileless as doves." -Immanuel Kant, "Perpetual Peace" Kant officially presents Recht ("Law") ' as a body of natural law that constitutes one major part of morality.2 Kantian Law is meant to be separate not from morality but from Kantian ethics, the part of morality that concerns the goodness or worth of persons and their actions.3 Purportedly, then, Kant's theory contains nothing corresponding to the positivist "separation of law and morality."4 But, in a way that cuts against the grain of his official story, Kant's theory of Law has a character that is in Kantian terms curiously amoral. Law is separated from ethics more sharply than first appears, and the basic moral theory supports the ethical much more than the Legal component of the moral system.5