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Recent Working Papers:
Apart from criminal proceedings and a small enclave of constitutional right, virtually all disputes between citizens and federal agencies are decided by agency-appointed tribunals, not judges. Typically, the tribunals’ decisions are reversible by the agency and then subject only to highly deferential judicial review. This “appellate review” regime originated well over a century ago. It found its canonical formulation in the Supreme Court’s foundational decision in Crowell v. Benson (1932) and, in 1946, was effectively codified in the Administrative Procedure Act. The model has since been overlaid with a blanket of administrative common law, and it has been subject to a great deal of improvisation outside the APA’s default provisions. Despite the constant tinkering, however, and despite widely shared misgivings about its constitutional foundations and practical operation, the appellate review model has proven immune to any serious challenge.
This Essay mounts that challenge. It confronts the appellate review model with a stark but realistic and highly attractive alternative: a system of independent administrative courts, endowed with the institutional capacity and incentives to provide meaningful protection for citizens’ rights.
Many countries in the world feature such a judiciary. Prominently, Germany’s system of administrative courts rests on constitutional commands that categorically forbid administrative tribunals and instead require that disputes between the executive and private citizens must always be adjudicated by an independent court. While we cannot simply import that model, we can replicate its essential features, well within the confines of the Constitution and our legal traditions. In fact, institutional reforms along “German” lines might help us recover foundational domestic legal traditions that were lost or abandoned in the adoption of the appellate review model.
An emerging refrain in antitrust dialog is that the accumulation and use of big data is a unique and particularly troublesome entry barrier, worthy of antitrust scrutiny. Yet, it seems that both the concept of big data and entry barriers continue to be used in a highly casual and superficial manner. In this article, we argue that big data should properly be considered a two-stage process. In stage one, a firm collects the data. In stage two, a firm transforms the data into some benefit that ultimately increases profitability. We also discuss whether big data should be considered an entry barrier, which, in a broad and abstract sense, measures the relative difficulty of obtaining necessary inputs to production.
By Anu Bradford, Yun-chien Chang, Adam Chilton, Nuno Garoupa
There is a large literature in economics and law suggesting that countries’ legal origins — whether a country’s legal regime was based on British common law or German, French, or Nordic civil law — profoundly impact a range of outcomes. However, the exact relationship between legal origins and legal substance has been disputed in the literature, and this relationship has not been fully explored with nuanced legal coding. We revisit this debate while leveraging extensive novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries have similar property law regimes, but does little to predict whether countries have similar antitrust regimes. Our results suggest that legal origins may be an important predictor of legal substance in well-established legal regimes, but do little to explain substantive variation in newer areas of law.
By Helen Alvaré
In order to propose a more positive, appealing, and theologically accurate account of Catholic institutions’ case for religious freedom in the context of current sexual expression laws, this article will proceed as follows: Part I will discuss the sexual expression laws commonly triggering free exercise defenses by Catholic institutions, the defenses themselves, and the negative reactions they provoke. Part II will treat Catholic theology about the necessity of mutual witness within a community for sustaining and transmitting the Catholic faith. Part III will discuss the relationship between Catholic teachings on sex, marriage and parenting, and forming and transmitting Catholic faith. It will note that these teachings are only one part of Catholic community life and identity, but that they require special attention today in light of the frequency with which the state is intruding into Catholic communities on the basis of claimed sexual expression rights. Part IV will suggest how each type of free exercise defense commonly used by Catholic institutions in sexual expression lawsuits, might be strengthened if framed according to my proposal. These defenses would better conform to Catholic theology, allow for positive expression, appeal to common sense, and more fully satisfy both the spirit and the letter of the law of free exercise. A brief conclusion will reassert the necessity for Catholic institutions’ authority over employment and operations, and address a few collateral questions concerning implications for state funding, and fears about too broad a scope of institutional freedom.
Optimal remedies should be grounded in consumer harm. The caselaw interpreting the FTC's ability to obtain equitable monetary relief, however, has strayed far from this benchmark. Rather than requiring the FTC to show the marginal impact of deception, courts presume that everyone exposed to deception is harmed based on the fiction that the FTC has proven materiality. This approach is likely to overstate consumer harm in most circumstances involving a legitimate product, which will reduce the amount of beneficial marketplace information available to consumers. Several cases that challenge the FTC's legal authority to use 13(b) to obtain equitable monetary relief are awaiting certiorari determinations, which have led some to call for Congressional intervention to fix the statutory problem. Regardless of the outcome of this process, we see this turn of events as an opportunity for the FTC to recalibrate its consumer protection remedies to more closely mirror consumer harm. It should do so by focusing on the marginal impact of deception, a task that could be accomplished through Congressional action or on the FTC's own initiative. Regardless of the path, this marginal improvement would be an important one for consumers.
By Steven Eagle
This article examines recent Supreme Court decisions regarding private property and eminent domain vis-à-vis growing demands for government controls over land use, especially to ameliorate climate change and to reduce regional economic disparities. It notes that tension between the Court’s amorphous regulatory takings jurisprudence and assertive regulation will increase, a trend likely to be heightened after Knick v Township of Scott. Its contribution is the assertions that the current judicial regulatory takings apparatus be replaced with the doctrine that, if owners can demonstrate that the property arrogated by government consists of a “commercial unit,” then the matter should be deemed a compulsory purchase, and just compensation paid. Of course, borderline and unusual circumstances dictate some continued reliance on substantive due process, which already plays a crucial, if unacknowledged, role in contemporary regulatory takings doctrine.
By Nelson Lund
Generations of lawyers have been taught that McCulloch v. Maryland is the foundational precedent that established an expansive view of national power under the U.S. Constitution. In The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is. I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution.
Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established. He likes what the progressives did with Chief Justice Marshall’s opinion and he laments the federalism decisions that began with United States v. Lopez in 1995. Schwartz thinks McCulloch has now been turned into a “splendid bauble,” but the truth is just the opposite. After thirty-five years, we have a few Supreme Court decisions whose effects have been trivial and whose pretended limits on federal power can easily be evaded. So far, the federalism revival has produced only pretty baubles, and the Court’s opinions promise nothing of any greater significance in the future.
By Nuno Garoupa
This chapter summarizes the state of the art concerning empirical studies about constitutional courts in civil-law Western Europe. There is a solid, even if not very extensive or exhaustive, empirical literature on civil-law Western European constitutional courts. Still, a broad overview of the empirical literature seems to confirm that it is mostly driven by concerns about local dynamics in specific Western European countries and less so about any more general comparative assessment. There is a very limited number of quantitative studies using data from multiple countries and looking for possible common and causal patterns.
Noncompete Clauses Used in Employment Contracts Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
This comment is submitted by the Global Antitrust Institute (GAI) at the Antonin Scalia Law School, George Mason University to the Federal Trade Commission (FTC) in relation to its proposed examination of whether there is “a sufficient legal basis and empirical economic support” to promulgate a Commission rule that would restrict the use of non-compete clauses in employer-employee contracts.
DOJ/FTC Draft 2020 Vertical Merger Guidelines Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
This comment is submitted by the Global Antitrust Institute (GAI) at the Antonin Scalia Law School, George Mason University to the Federal Trade Commission and Department of Justice regarding the draft 2020 Vertical Merger Guidelines. The GAI Competition Advocacy Program provides a wide range of recommendations to facilitate adoption of economically sound competition policies.
By Caroline Cecot, Robert Hahn
Cost-benefit analysis (“CBA”) is widely used in agency decisionmaking, summarizing the impacts of an agency’s chosen policy. As agency rulemakings have increased in quantity and importance, there has been renewed interest in improving transparency in decisionmaking, especially with respect to the models and data that underlie CBA. Recent proposals have been highly controversial. At least some of the controversy can be attributed to limited information about the usefulness of this type of transparency.
This Article contributes to this debate by evaluating the current level of transparency in CBA and proposing incremental improvements. First, it suggests a new framework for thinking about transparency in CBA that includes two key dimensions: process transparency and policy transparency. A CBA that scores well on these two dimensions would allow interested parties to scrutinize agency action and hold decisionmakers more accountable. Second, it objectively evaluates the process transparency and policy transparency of a comprehensive set of CBAs for significant rules issued between October 2015 and September 2018. It uses a scorecard methodology, which scores whether a particular CBA met a number of different criteria related to transparency.
The Article finds that many agency CBAs lack basic process transparency, meaning that their creation and role in the decisionmaking process is not clear. In addition, most CBAs continue to lack transparency about policy impacts, often failing to quantify and monetize costs and benefits. Among CBAs that do monetize at least some costs and benefits, most do not make their data, models, and underlying sources readily available online. In light of the results, the Article provides low-cost recommendations for improving transparency in CBA that could do more good than harm. In particular, while models used in the CBA and their inputs should be adequately described and made publicly available, it is premature to require that all underlying data from studies used in the CBA be made available. In line with this incremental approach to improving CBA transparency, we argue that the move toward adopting an “open policy framework” in government policy analysis should consider both the costs and the benefits carefully.
Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent
By Ilya Somin, Shelley Saxer
The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court.
Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist.
Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent.
Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” and pragmatic theories of precedent. Here too, it turns out that overruling was well-justified.
Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.
In the toxic tort context, both litigation and regulation require reliable scientific data to establish a causal connection between exposure to some substance and alleged harm before allowing recovery or mandating mitigation. On the one hand, it is important for litigation and regulation to be based on causal evidence of actual harms. Otherwise, these interventions could make society worse off by unduly limiting the availability of useful substances and diverting resources away from addressing true risks. On the other hand, for this system to comprehensively address all important environmental externalities, there must exist sufficient incentives to generate the data required for effective risk-management through litigation and regulation.
This Article argues that, in many cases, the incentives are insufficient. When it comes to latent harms, in particular, scientific research evaluating causal links is challenging and expensive. Independent researchers, who require funding for their work, are unlikely to systematically analyze the effects of new substances. To date, there are thousands of unstudied substances in use.
Given the increasing importance of reliable scientific data for efficient risk management, it is time to evaluate all options for incentivizing its production in order to promote optimal deterrence in the toxic tort context. This Article proposes several ways to combat the persistent data lag, including changes to tort common law and regulation. Most controversially, it proposes a new tort cause of action for informational monitoring and analysis in some circumstances when there exist no reliable studies on the potential harm of a particular substance. A successful claim would lead to the establishment of a scientific panel, paid for by the defendant, to analyze and monitor the link between exposure to the substance and subsequent health outcomes.
Swedish Competition Authority's Proposed Market Study of Digital Platforms, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
This comment is submitted by the Global Antitrust Institute (GAI) at the Antonin Scalia Law School, George Mason University to the Swedish Competition Authority regarding its proposed market study of digital platforms. The GAI Competition Advocacy Program provides a wide range of recommendations to facilitate adoption of economically sound competition policies.
This article considers continuous models of time discounting that evolve dynamically. While constant exponential discounting is the paradigmatic model for time discounting, many models which depart from exponential discounting have been proposed to attempt to more closely match the behavior of individuals, firms and markets. This article argues that it is the dynamic inconsistency of behavioral models that gives them their most salient features. The article then develops evolution equations for some of the most prominent continuous discounting models to more clearly consider their dynamic inconsistency. It then proposes metrics for the degree of dynamic inconsistency exhibited by discounting models allowing comparison of dynamic inconsistency both across and within models.
Testimony on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee
By Adam Mossoff
This invited testimony was presented at a hearing on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee, on September 11, 2019. It explains how the STRONGER Patents Act addresses two sources of uncertainty, instability and weakness in the U.S. patent system today. First, the bill permanently would end the willy-nilly operations of the Patent Trial & Appeal Board (PTAB), an administrative tribunal created by Congress in 2011 to cancel issued patents. The PTAB engages in numerous procedural “shenanigans” that have produced extremely high cancellation rates, earning it the moniker of a “death squad” for patents. The STRONGER Patents Act imposes structural reforms on the PTAB by hardwiring into it necessary limitations on arbitrary action. Second, the bill abrogates the Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new test for issuing injunctions for the ongoing infringement of a valid patent. By eliminating the classic legal test of a presumptive injunction for an ongoing violation of a valid property right, eBay has led to a significant drop in courts issuing injunctions for all patent owners. Both the PTAB and eBay have created a cloud over the titles of patents, incentivizing “efficient infringement” by large companies and hampering the economic function of patents in driving licensing and other commercial activities in the innovation economy. Thus, the STRONGER Patents Act represents much-needed reform. It reestablishes reliable and effective patent rights, stable legal institutions, and the rule of law in the patent system — essential features of all legal property rights in driving economic growth in innovation economies.
By Douglas Ginsburg, Cecilia (Yixi) Cheng
Criminal cartel cases in the U.S. are at modern lows, spurring questions as to whether the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA) and the Antitrust Division’s criminal enforcement program continue to be effective and, if not, why not? In this Chapter, we offer three non-exclusive hypotheses for the recent decline:
(1) increasingly large fines in multiple jurisdictions have lessened the incentive to apply for leniency in any one jurisdiction;
(2) technology has caused the substitution of lawful tacit for unlawful express collusion; and
(3) ACPERA and the Division’s criminal program have succeeded in deterring cartel formation – at least among U.S. companies.
Our analysis of the Antitrust Case Filings database leads us to be tentatively optimistic about the third possibility: Over the last decade, the number and percentage of foreign as opposed to U.S. corporate defendants has increased dramatically.
Testimony on 'Competition in Digital Technology Markets: Examining Acquisitions of Nascent or Potential Competitors by Digital Platform' before the Senate Judiciary Committee, Antitrust Subcommittee
By John Yun
Is there a problem with large technology firms, or platforms, purchasing nascent competitors and suppressing competition before they can mature into vibrant competitors? Further, if there is a problem, are the current antitrust laws and the enforcement of those laws sufficient to combat the problem? If not, is there a legislative solution? These are all critical questions given that innovation and incentives to innovate are at the heart of all vibrant modern economies. This testimony explores these questions.
The right of self-defense is the core of the Second Amendment right to keep and bear arms as the US Supreme Court has affirmed in two landmark decisions. The right does not, and cannot, stop at the domestic doorstep. Nevertheless there are those arguing that somehow the right “to bear arms” is confined to the home. This essay addresses this latest effort to deny the individual right to keep and bear arms that the Court has affirmed. It focuses on the right to carry a gun outside the home, mindful that the right to keep and bear arms, like other rights, included some practical restrictions. In reviewing the history, the crucial time for an understanding of the meaning of the Second Amendment is the point in the evolution of the Anglo-American right when the amendment was drafted and added to the American Bill of Rights.
By Yonathan Arbel, Murat Mungan
Defamation law fines speakers who make certain false statements, because such statements mislead their audience. It is commonly thought that stricter defamation laws offer better protection against misleading statements. Here, we study the audience's equilibrium behavior and beliefs in the presence of defamation laws of varying strictness.
We find that both lax and strict defamation laws have undesirable consequences. Strict and lax regulation of information make speech largely unreliable by deterring truthful negative remarks and failing to deter frivolous statements, respectively. Under a large set of circumstances, the optimal regulation of communications should be moderate, to facilitate the effective communication of private information and to balance a trade-off between deterring defamation, chilling truthful criticisms, and litigation costs. The court's competency plays a key role in determining the optimal defamation regime, and when courts are sufficiently capable of sorting out frivolous defamation claims, the optimal defamation regime leads to a separating equilibrium where statements always accurately inform the audience.
Although our analysis focuses specifically on defamation law, it is illustrative of the dynamics present in many other contexts where the law regulates disclosure by interested private parties to a Bayesian audience. We discuss some of these contexts, including securities regulations, whistle-blowers, jury trials, and reports of criminal activity.