Showing papers in "Fordham Law Review in 2013"

Welfare Standards in U.S. and E.U. Antitrust Enforcement

Abstract: The potential goals of antitrust are numerous. Goals matter to antitrust. We believe that it is total welfare rather than consumer welfare that should drive antitrust analysis. We use this Article as an opportunity to explore both a comparative analysis of welfare standards across E.U. and U.S. competition systems and the impact of welfare standards on global antitrust systemwide welfare. In this Article, we analyze two types of situations in which there would be a different outcome based on the goal implemented. One scenario involves resale price maintenance (RPM). For RPM, we argue that even if there were a different welfare standard across jurisdictions as between Europe and the United States, in practice, it would have very little global impact. The second scenario involves merger control. We analyze a divergence in welfare standards between merger regimes where the use of efficiencies might play out differently across Europe and the United States depending on the welfare standard used. Under this second scenario, the welfare standard matters globally as to business outcomes in a way in which it does not under the first scenario. If one major merger regime blocks the merger, it effectively blocks the merger globally. Finally, we provide our concluding thoughts on the future and desirability of convergence around total welfare as the sole goal in the practice of competition economics globally.

Institutional Design, Agency Life Cycle, and the Goals of Competition Law

Abstract: U.S. antitrust professors have their own version of the Marquess of Queensberry Rules. The most important rule is that arguments about the merits of any given case, dispute, or regulatory decision/action must be faithful to the Gospel of Antitrust (i.e., the specific history, logic, and objectives that justified the adoption of the U.S. competition laws in the first place). Of course, it complicates matters slightly that there are at least three competing versions of the Gospel: the Chicago School, the post–Chicago School, and the Market-Egalitarian School.1 Consider the basic tenets of each school. Chicago School enthusiasts, following in the footsteps of Robert Bork, frame their arguments about the original aims of U.S. antitrust law solely in terms of economic efficiency.2 As one federal court of appeals panel put it,

Social Impact Bonds and the Private Benefit Doctrine: Will Participation Jeopardize a Nonprofit’s Tax-Exempt Status?

Abstract: In August 2012, the first social impact bond in the United States was implemented, introducing a revolutionary framework that aligns the incentives of the participants and provides nonprofits with a steady source of long term funding to scale up social projects. In the prevailing social impact bond structure, private investors essentially place a bet with a government agency that the selected nonprofits will accomplish measureable goals through a comprehensive project designed to reduce public costs. If the program fails to reach these goals, the investors lose the bet and their entire financial commitment to the social impact bond. If the program succeeds, the government agency repays the initial investment plus a profit margin to the investors. This Note examines social impact bonds from a nonprofit’s perspective and answers the question whether the profit margin that the private investors may achieve would qualify as an impermissible private benefit that would allow the IRS to revoke a participating nonprofit’s tax-exempt status.

Deferentialism: A Post–originalist Theory of Legal Interpretation

Abstract: In this paper, I present “Deferentialism,” a new conception of legal interpretation that has close affinities with originalism, while shedding much of its accumulated baggage. The new conception includes two dimensions of deference to original sources: one to a species of original meaning, and the other to a species of original intent. The dimensions are ordered. The first task is to identify the relevant original meaning; intent becomes constitutive, as opposed to merely evidential, only after that meaning has been identified.1 The first question in interpretation is: what does the law say, assert, or stipulate? Saying, asserting, and stipulating are speech acts—or, in more technical philosophical terminology, illocutionary acts—as are confirming, denying, ordering, and promising. Each of these involves taking a certain stance toward the content of the act. To say or assert something is to commit oneself to it being true, as is to confirm something in the special case in which it has been the subject of previous interest or inquiry. To deny something is to commit oneself to its being false. To order someone to do something is to direct that person to make it true that he or she does such-and-such, while to promise to do something is to commit oneself, often by asserting that one promises, to making it true that one does suchand-such. Stipulation is similar. For a proper authority to stipulate that, say, the speed limit on certain roads in New Jersey is sixty miles per hour is for the authority to assert that the speed limit is sixty miles per hour and for that very assertive act to be a, or the, crucial component in making what is asserted true. To discover what the law asserts or stipulates is, in the first instance, to discover what the lawmakers asserted or stipulated in adopting an

Should Competition Policy Promote Happiness

Abstract: What, if anything, are the implications of the happiness economics literature on competition policy? This Article first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well-being. It next surveys the happiness literature on five key issues: (i) What constitutes well-being; (ii) How do you measure well-being; (iii) What increases well-being; (iv) Do people want to be happy; and (v) Can and should the government promote total well-being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore the literature altogether. The findings of the happiness literature, as this Article argues, offer some helpful insights on the current debate over antitrust’s goals. The literature suggests that competition policy in a post-industrial wealthy country would get more bang (in terms of increased well-being) in promoting economic, social, and democratic values, rather than simply promoting a narrowly defined consumer welfare objective.

Trusts and the Origins of Antitrust Legislation

Abstract: Between 1888 and 1890, thirteen states and the federal government enacted antitrust legislation criminalizing combinations among competitors intended to control prices in the marketplace. These laws were a reaction to the increasing formation of horizontal combinations, large and small, throughout the economy in the wake of dramatically changing economic conditions since the Civil War. Through most of this period, combinations struggled to find structures that would enable them to operate effectively. Simple combinations of independent firms, although neither criminal nor tortious, were often undermined because state common law refused to enforce the contractual arrangements that would prevent members from deviating from the rules that would give a combination the power to control price. Nor could early combinations avail themselves of a unitary ownership structure, since state corporation law restricted the corporate form in ways that made it largely unworkable as a combination structure. In the early 1880s, however, some combinations, beginning with Standard Oil, adopted a new form of organization, the trust proper, which had the command and control attributes of a corporation without being subject to the restrictions of state corporation law. Shortly thereafter, some states, notably New Jersey, liberalized their corporation laws, making corporations suitable as a vehicle for housing a business combination. States and the federal government responded with legislation that adopted the common law prohibitions against combinations in restraint of trade, extended these prohibitions to combinations organized as trusts proper and holding companies, and criminalized violations in order to enable government challenges. Despite these extensions of the law, early enforcement was virtually nonexistent, even against most combinations that had achieved widespread public notoriety. After the turn of the last century, however, the new laws set the stage for an aggressive enforcement policy following a massive horizontal consolidation movement that began in 1895.

Originalism and Constitutional Construction

Abstract: Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities. This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theorists may prefer to use different terminology to mark the distinction between interpretation and construction, every constitutional theorist should embrace the distinction itself, and hence should agree that construction in the stipulated sense is ubiquitous. Construction occurs in every constitutional case. The second claim is more substantive and practical. In some cases, construction can simply translate the plain meaning of the constitutional text into corresponding doctrines of constitutional law—we might call this strict construction. But in other cases, the constitutional text does not provide determinate answers to constitutional questions. For example, the text may be vague or irreducibly ambiguous. We can call this domain of constitutional underdeterminacy the construction zone. The second claim is that the construction zone is ineliminable: the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction that goes beyond the meaning of the text for their application to concrete constitutional cases.

The New Originalism and the Uses of History

Abstract: Central to the new originalism is the distinction between constitutional interpretation and constitutional construction. Interpretation tries to determine the Constitution’s original communicative content, while construction builds out doctrines, institutions, and practices over time. Most of the work of constitutional lawyers and judges is constitutional construction. The distinction between interpretation and construction has important consequences for constitutional theory. In particular, it has important consequences for longstanding debates about how lawyers use history and should use history. First, construction, not interpretation, is the central case of constitutional argument, and most historical argument occurs in the construction zone. Second, although people often associate historical argument with originalist argument, the actual practices of lawyers and judges demonstrate that nonadoption history is as important as adoption history to constitutional construction. Third, there is no single modality of “historical argument.” Instead, history is relevant to many different kinds of constitutional argument. One important task of this Article is to rethink the familiar model of modalities of argument offered by Philip Bobbitt and Richard Fallon; and to offer a different version that better reflects the multiple ways that lawyers and judges actually use history in constitutional argument. Fourth, according to the new originalism, arguments about adoption history can offer mandatory answers only with respect to questions of interpretation; they cannot do so for questions of constitutional construction. That is, new originalists accept an originalist model of authority only with respect to questions of interpretation, not construction. Yet new originalists, like most lawyers, often make appeals to adoption history in constitutional construction. This raises the obvious question why American judges and lawyers should use or accept arguments from adoption history in constitutional construction and only sometimes find

The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference

Abstract: The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong. This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. Call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them. In the national security context, the executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive.

Originalism, the Why and the What

Abstract: This paper is short and simple—like its author. It is short because its points can be made quickly, and I have elaborated on them at some length in many prior writings.1 It is simple because the truth about interpretation, that its aim is to understand what an author or authors intended to communicate, is a simple truth. Indeed, as you read what follows, you will be trying to understand what I, in writing what follows, intend to get you to understand. And in doing so, you will be confirming my simple thesis. But I’m getting ahead of myself. 1. In all tenable theories about the nature of law, there is a place for the following story. We do not agree about what we ought to do, but we do agree that we need to settle the matter. So we designate a person or group of people to decide what norm or norms should govern us with respect to the matters in dispute.2 That person might be a chief executive; that group might be a legislature or a constitutional convention. Regardless, their job in all cases is to come up with norms in order to settle what is to be done in some domain of social life. 2. Now, after this person or group has decided on the appropriate norms to govern the matter, they then must communicate to the rest of us what those norms are. For their job was not merely to settle the matter among themselves. It was to settle the matter for all of us. So they are faced with the following task: they must express the norms they have chosen in such a way that the rest of us understand what those norms are.

Originalism: A Critical Introduction

Abstract: The theory of originalism is now well into its second wave. Originalism first came to prominence in the 1970s and 1980s as conservative critics reacted to the decisions of the Warren Court, and the Reagan Administration embraced originalism as a check on judicial activism. A second wave of originalism has emerged since the late 1990s, responding to earlier criticisms and reconsidering earlier assumptions and conclusions. This Article assesses where originalist theory currently stands. It outlines the points of agreement and disagreement within the recent originalist literature and highlights the primary areas of continuing separation between originalists and their critics.

Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining

Abstract: Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea bargaining, forcing the defendant to negotiate and determine whether to accept a plea offer or proceed to trial without it. Substantial disparities therefore exist in the bargaining power and decision-making ability of criminal defendants, depending on where they are charged. This Note addresses the divide in how courts approach Brady challenges to guilty pleas. After analyzing the development of plea bargaining and the Brady rule, this Note concludes that a guilty plea is not valid if made without awareness of material exculpatory evidence possessed by the prosecution. To provide additional support for the recognition of pre– guilty plea exculpatory Brady rights, this Note presents a case study of two 2012 Supreme Court decisions establishing the right to effective assistance of counsel during plea bargaining, and argues that the same justifications for recognizing that right during plea bargaining apply to Brady as well.

The Goals of Antitrust: Welfare Trumps Choice

Abstract: The evolution of U.S. Supreme Court antitrust jurisprudence over the past fifty years is well known. As one of us has written, “[f]orty years ago, the U.S. Supreme Court simply did not know what it was doing in antitrust cases.”1 The Court interpreted the Sherman2 and Clayton Acts3 to reflect a hodgepodge of social and political goals, many with an explicitly anticompetitive bent, such as protecting small traders from more efficient rivals.4 The failure of antitrust law to promote competition and further consumer welfare over this period is unsurprising and inevitable, for the courts and agencies were operating without a coherent answer to the question: “What are the goals of antitrust?” The economic revolution in antitrust that took hold in the Supreme Court in the late 1970s and the 1980s was brought on at least in part by Robert Bork’s analysis of the original understanding of the Sherman Act.5 In

Meaning and Belief in Constitutional Interpretation

Abstract: The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution—espousing interpretation of constitutional concepts according to their contemporary understandings— typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them—specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish.

Merger Settlement and Enforcement Policy for Optimal Deterrence and Maximum Welfare

Abstract: Merger enforcement today relies on settlements more than litigation to resolve anticompetitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun-shy agencies settle for too little, while others argue that agencies use their power to delay to extract overreaching settlement terms, even when mergers are not welfare reducing. This Article uses decision theory to throw light on this controversy. The goal of this Article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks by the merging parties, agencies, and the courts. The Article explains why limiting the goal of merger enforcement and agency settlement policy simply to avoid welfare harms, but nothing more, is flawed as a matter of both law and policy and would compromise deterrence. The decision-theoretic analysis distinguishes two types of agency commitment policies: a short-run optimal policy that focuses only the specific merger proposal being evaluated and a long-run optimal policy that takes into account effects on future mergers and deterrence goals. The short-run optimal policy may lead to some welfare-reducing settlements by a rationally gun-shy agency; settlement demands for weakly welfareenhancing merger proposals, what might be called “exacting tribute”; and “anti-deterrence” effects by merging firms proposing some mergers with greater welfare harm in order to increase settlement bargaining leverage. In contrast, a disciplined long-run optimal policy would clear all welfareenhancing mergers as proposed; forgo negative welfare settlements despite the risk of losing in court, but instead demand settlements on welfarereducing merger proposals sufficient to lead to strict welfare increases (not just welfare neutrality), relative to no merger; and avoid anti-deterrence by

The Presumption of Constitutionality and the Individual Mandate

Abstract: Every American law student learns that there is a difference between a statute’s meaning and its constitutionality. A given case might well present both issues, but law students are taught that the questions are distinct and that their resolution requires separate analyses. This is all for good reason: the distinction between statutory meaning and constitutional validity is both real and important. But it is not complete. Any approach to statutory interpretation depends on a view about the appropriate role of the judiciary (or other institutional interpreter) in our constitutional system; “[a]ny theory of statutory interpretation is at base a theory about constitutional law.”1 Moreover, some specific rules of statutory interpretation can themselves be understood as modes of constitutional implementation. National Federation of Independent Business v. Sebelius2 (NFIB)—and, in particular, the constitutionality of the Affordable Care Act (ACA)’s “individual mandate” under the tax power—is a prime example of constitutional and statutory intertwining. The crux of the tax question in the case was whether Congress permissibly exercised its tax power when it enacted the individual mandate. This was a question of both statutory meaning and constitutional validity: Was the mandate permissibly understood to impose a tax, and did it represent a constitutional exercise of Congress’s tax authority? According to some—including, critically, Chief Justice Roberts—the tax power cannot be used to command individuals.3 In the Chief Justice’s view, Congress can tax an otherwise lawful action or failure to act, but it cannot use its tax power to enforce a command that individuals act or not act in a particular way. Under that standard, the mandate could be upheld under the tax power only if it could be interpreted as taxing the decision not to purchase insurance without rendering that

Implementing Antitrust's Welfare Goals

Abstract: United States antitrust policy is said to promote some version of economic welfare. Antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation. One important welfare debate is whether antitrust should adopt a “consumer welfare” principle rather than a more general “total welfare” principle.The simple version of the consumer welfare test is not a balancing test. If consumers are harmed by reduced output or higher prices resulting from the exercise of market power, then this fact trumps any offsetting gains to producers. In this sense the consumer welfare test is easier to administer on a case by case basis than general welfare tests that may have to trade consumer losses and producer gains against each other.The volume and complexity of the academic debate on the general welfare vs. consumer welfare question creates an impression of policy significance that is completely belied by the case law. Few if any decisions have turned on the difference. In fact, antitrust policy generally applies both tests in the following sense. First, the economic analysis from the dominant Harvard and Chicago schools of antitrust is consistently concerned with general welfare. Second, however, if the evidence in a particular case indicates that a challenged practice facilitates the exercise of market power, resulting in output that is actually lower and prices that are actually higher, then tribunals uniformly condemn the restraint without regard to offsetting efficiencies. Indeed, one is hard pressed to find a single appellate decision that made a fact finding that a challenged practice resulted in lower market wide output and higher prices, but that also went on to approve the restraint because proven efficiencies exceeded consumer losses. In sum, courts invariably apply a consumer welfare test.In the paradigm cases that are commonly used as illustrations in this debate, all consumers either gain or lose from a practice. Often things are not that simple. Many practices affect different consumers in different ways, making the computation of net effects very difficult. Among such practices are (1) variable proportion ties; (2) ties that result in interproduct price discrimination; (3) tying and bundled discounts of imperfect complements; (4) vertical restraints and other practices used to facilitate third degree price discrimination; and (5) resale price maintenance which causes nominally higher prices but produces services that are more valuable to some customers than to others.When a practice causes both consumer harm and consumer benefit but net effects are unknown, producer gains may become more relevant, particularly if they result from significant production efficiencies.

Economics and Politics: Perspectives on the Goals and Future of Antitrust

Abstract: This Article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics with politics by describing antitrust’s economic goals as the product of a mid-twentieth century political understanding about the nature of economic regulation that continues to be accepted. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. It identifies contemporary political tensions that threaten to create regulatory gridlock or even to undermine that political understanding and uses that framework to sketch several possible futures for competition policy. Notwithstanding these political tensions, the Article concludes, economics plays an indispensable role in shaping and applying modern antitrust.

Code-ifying Copyright: An Architectural Solution to Digitally Expanding the First Sale Doctrine

Abstract: As the internet blossomed into ubiquity, piracy mushroomed with it. To control the threat, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA created a number of safeguards for copyright holders. But the DMCA purposely ignored whether copyright holders could restrict future transfers of their legally purchased work—a concept known in physical property as the “first sale doctrine.” As a result, copyright holders began using licenses to control future transfers of their digital property. This was not the first time copyright holders have attempted to gain greater control over their work. The history of copyright law demonstrates a pattern of struggle between competing interests—with public access to creative works on one side and the need for incentive to create on the other side. Over time, courts and legislators have chosen different responses to this struggle. Each has encountered varying levels of success. But all have dealt exclusively in physical property. The world of physical property is different from that of digital property for two reasons. In the physical world, it is difficult and costly to duplicate works, and over time, these works degrade. By contrast, in the digital world, copying a book, a song, or a movie requires only a couple of keystrokes and a mouse click. Additionally, copying a digital file does not affect its quality. In light of these differences, scholars have offered a number of solutions, focusing on the difference in copying difficulty between physical and digital property. This Note examines the history of copyright law to understand the various solutions available to lawmakers when dealing with the threat of piracy and considers the possibility of a solution focusing instead on the degradation difference between physical and digital property.

Everyone’s a Little Bit Racist? Reconciling Implicit Bias and Title VII

Abstract: Since its enactment as part of the Civil Rights Act of 1964, Title VII’s main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely successful in reducing and remedying instances of overt discrimination in the workplace. However, more recently, social scientists have analyzed and applied the results of Harvard’s Implicit Association Test to recognize a new form of discrimination characterized by a subconscious decisionmaking process based on intuition and a lack of an overt intent to discriminate. This phenomenon is called “implicit bias.” To date, several courts have been receptive to incorporating an implicit bias-based theory of employment discrimination, seeing this as the next step in the battle to end all forms of discrimination. Yet many other courts have remained skeptical of the impact of implicit bias and have refused to find that discrimination existed without a showing of intent, specific actions by an employer, or specific employment practices. This Note examines the struggle courts face when analyzing potential instances of implicit bias, and suggests how implicit bias–based claims can be consistent with the existing Title VII intent-based framework and evaluated with minimal changes to that framework.

The Gravitational Force of Originalism

Abstract: In Part I of this Article, I describe four aspects of the New Originalism: First, New Originalism is about identifying the original public meaning of the Constitution rather than the original Framers’ intent. Second, the interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry. Third, there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed. Finally, distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In Part II, I then discuss how originalism can influence the outcome of such cases as District of Columbia v. Heller, McDonald v. City of Chicago, and National Federation of Independent Business v. Sebelius (NFIB). I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and NFIB, the original meaning of the Constitution appears not to be the basis of a judicial decision.

How antitrust lost its goal

Abstract: During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer welfare standard established the greatest antitrust paradox yet. Second, the smallbusiness interests hypothesis, which has often been used to explain the enactment of the Sherman Act, is inconsistent with the well-documented historical record. Third, the logic of Robert Bork’s consumer welfare thesis requires restoration of “competition” as the goal of antitrust. The Essay concludes with a straightforward observation: “consumer welfare” may continue serving as the stated goal of U.S. competition laws but, practically, antitrust has always been and will always be about the preservation of competition.

A Substantive Right to Class Proceedings: The False Conflict Between the FAA and NLRA

Abstract: In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently considered this question have declined to follow the NLRB and have enforced similar class waivers. This Note argues that the NLRB was correct in declaring unenforceable class waivers in employment arbitration agreements. It concludes that because employees’ right to invoke class proceedings under the NLRA is a substantive rather than procedural right, the unwaivability of this right creates no conflict with the FAA, even under the Supreme Court’s broad interpretation of the statute.

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications

Abstract: The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s happiness, a donor’s incentive to work, save, and invest, and the structure and timing of a donor’s gifts. If donors believe courts may not facilitate their intent, donors may be less happy, accumulate less property, and alter gifts during life. Moreover, because the law often affects donor behavior, ignoring donative intent to benefit particular donees may harm not only the donors but also donees as a class. Thus, the living may themselves benefit if the law allows a certain degree of “dead hand” control.

Waiving Fiduciary Duties in Delaware Limited Partnerships and Limited Liability Companies

Abstract: In corporations, like most other business associations, fiduciary duties exist to deter management from abusing their power over the owners’ property. In Delaware limited partnerships and limited liability companies, this protection can be waived in the operating agreement. This Note explores the effects of retaining or waiving fiduciary duties and how this plays out in the interpretation of operating agreements. It argues that default fiduciary duties exist for limited liability companies and limited partnerships, including those that are member managed, and it proposes a combination of disclosure and signature requirements from each limited partner or member in order for waiver of fiduciary duties to be effective.

Antitrust's democracy deficit

Abstract: Critics of lax antitrust enforcement have long bemoaned the slide of antitrust into political irrelevance. Richard Hofstadter famously sounded the theme nearly fifty years ago. Pointing out that the political impulses animating antitrust in its first half century had faded as the United States became comfortable with big business, he argued that postwar enforcers had transformed antitrust into a technical exercise managed by lawyers and economists: “[O]nce the United States had an antitrust movement without antitrust prosecutions; in our time there have been antitrust prosecutions without an antitrust movement.”2 Some might go even further today, arguing that we lack an antitrust movement and antitrust prosecutions, as cartel investigations have sidetracked antitrust from its core mission of preventing concentrations of economic and political power. Many scholars have tried to explain what has caused the shift in antitrust’s political salience,3 but the purpose of this Article is more to describe how the shift has affected the way we now do the “antitrust enterprise” and to connect this shift to our concern for the political values

The politics of obamacare: health care, money, and ideology

Abstract: A recent article in The New Yorker on the origins of the campaign consulting business provided a fresh reminder—not that one was needed— of how the politics of health care and the politics of politics in the United States are intertwined.1 The Lie Factory described how one of the earliest efforts, by the first two political campaign consultants, was to defeat a 1942 proposal by California Governor Earl Warren to establish a state-run program of health coverage for all of the state’s residents.2 For some one hundred years, there has been no more fertile political ground on which to play on people’s fear of change than health care. As I write in my book, Fighting for Our Health: The Epic Battle To Make Health Care a Right in the United States:

The Geography of Revlon -Land

Abstract: In Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986), the Delaware Supreme Court explained that when a target board of directors enters Revlon-land, the board’s role changes from that of “defenders of the corporate bastion to auctioneers charged with getting the best price for the stockholders at a sale of the company.” Unfortunately, the Court’s colorful metaphor obfuscated some serious doctrinal problems. What standards of judicial review applied to director conduct outside the borders of Revlon-land? What standard applied to director conduct falling inside Revlon-land’s borders? And when did one enter that mysterious country? By the mid-1990s, the Delaware Supreme Court had worked out a credible set of answers to those questions. The seemingly settled rules made doctrinal sense and were sound from a policy perspective. Indeed, my thesis herein is that Revlon and its progeny should be praised for having grappled — mostly successfully — with the core problem of corporation law: the tension between authority and accountability. A fully specified account of corporate law must incorporate both values. On the one hand, corporate law must implement the value of authority in developing a set of rules and procedures providing efficient decision making. U.S. corporate law does so by adopting a system of director primacy. In the director primacy (a.k.a. board-centric) form of corporate governance, control is vested not in the hands of the firm’s so-called owners, the shareholders, who exercise virtually no control over either day-to-day operations or long-term policy, but in the hands of the board of directors and their subordinate professional managers. On the other hand, the separation of ownership and control in modern public corporations obviously implicates important accountability concerns, which corporate law must also address. Academic critics of Delaware’s jurisprudence typically err because they are preoccupied with accountability at the expense of authority. In contrast, or so I will argue, Delaware’s takeover jurisprudence correctly recognizes that both authority and accountability have value. Achieving the proper mix between these competing values is a daunting — but necessary — task. Ultimately, authority and accountability cannot be reconciled. At some point, greater accountability necessarily makes the decision-making process less efficient. Making corporate law therefore requires a careful balancing of these competing values. Striking such a balance is the peculiar genius of Unocal and its progeny. In recent years, however, the Delaware Chancery Court has gotten lost in Revlon-land. A number of Chancery decisions have drifted away from the doctrinal parameters laid down by the Supreme Court. In this article, I argue that they have done so because the Chancellors have misidentified the policy basis on which Revlon rests. Accordingly, I argue that Chancery should adopt a conflict of interest-based approach to invoking Revlon, which focuses on where control of the resulting corporate entity rests when the transaction is complete. This is a revised version of the article, with an expanded discussion of the relevant Chancery Court cases.

A Web of Liability: Does New Cyberbullying Legislation Put Public Schools in a Sticky Situation?

Abstract: Bullying has long been a concern for students, parents, and schools. However, the explosion of communication technology has transformed the nature of bullying, allowing “cyberbullies” to extend their reach far beyond the physical schoolyard. This development creates uncertainty for schools, legislatures, and courts in assessing when and where schools should be permitted to regulate student behavior.The growing number of tragic cyberbullying incidents, as well as national media coverage, has forced legislatures to take action. This has manifested itself in a number of different statutory forms and approaches.The most aggressive legislation appears to impose new duties on school districts, individual schools, and educators to police and prevent cyberbullying. Increased liability will likely accompany these new duties. This could be problematic since courts have been protective of students’ off-campus free speech rights when schools have acted aggressively to combat cyberbullying.This piece argues that the potential for new liability that schools may face, while perhaps appropriate, will put schools in a “lose-lose” situation. Schools that choose to act in accordance with new legislation will undoubtedly face legal challenges by cyberbullies, claiming violations of free speech rights. Schools that hesitate to act may face liability for failing to fulfill their new statutory duties to protect victims of cyberbullying. In order to balance these competing interests, courts should apply existing legal standards more deferentially to allow schools to combat cyberbullying effectively while also respecting the First Amendment.