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Brief of Amici Curiae Center for Civil Rights and Critical Justice and Fred T. Korematsu Center for Law and Equity in Support of Petitioners
Get PDFData Advantage and Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?
Get PDFA merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. To support this finding, the Article compares entrenchment theory with another commonly adopted approach to mergers—foreclosure theory. Additionally, it analyzes two representative data-related mergers from the European Union. In so doing, it shows that entrenchment theory can assist antitrust agencies in identifying potentially anticompetitive harms generated by data more efficiently and effectively
Machinists Preemption in the New Administrative Law
Get PDFThis Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.
On the other hand, Machinists preemption might instead harmonize with the new administrative law’s favor for private ordering of employment relations and individual freedom of contract. Whereas Machinists preemption once could be fairly cast as among the many procedural rules governing private formation of labor and employment policy, evolving circumstances and treatment in the courts have morphed it into a substantive rule imposing an unfilled void as a policy end in itself. That unfilled void functions as a proxy for individual freedom of contract principles, crowding out other forms of substantive labor and employment policymaking.
Although Machinists preemption initially aspired to give space to innovation within the NLRA’s unique structure, the reality is that it now stifles innovation. Calling Machinists preemption to question consequently asks how to calibrate private policymaking mechanisms within the new balance of power currently taking shape between branches and levels of government. That debate should engage every observer of the administrative state, state-federal relations, and the growing power of the courts
Ohio
Get PDFThere were only four police cases that were in the categories that we analyzed. In those four cases, there was no deviation from the analysis in the non-police cases. The Ohio State Employment Relations Board (Board or SERB) has a “shadow docket,” where it decides most unfair labor practice cases in preliminary, unpublished decisions issued without hearing. This shadow docket accounts for the limited number of published decisions. Moreover, given the SERB’s widespread use of its shadow docket, it is difficult to determine how police and non-police collective bargaining differs. That said, one can still glean trends from the admittedly small sample size
Political Disinformation in the Anthropocene
No full textThe Anthropocene is the name that scientists have given to our current geological epoch, which references the overwhelming influence of human agency on the Earth and its ecological systems. Adopted as a theoretical tool across multiple academic disciplines, social scientists often employ the term to address deep-rooted political and socioeconomic problems and the symptoms of global inequalities and injustices. Meanwhile, legal scholars have employed the term to address the global environmental harms of human agency and to examine how normative frameworks must fundamentally change and adapt to the times ahead. At the same time, recent scholarship also notes that democracies across the globe are experiencing rapid decay, as populist leaders and autocrats are frequently climate change deniers who weaponize social media to spread disinformation. With this scholarship in mind, the Anthropocene has come to represent the convergence of the global environmental and political crises that now confront us.
Within the environmental and political turmoil of the Anthropocene, disinformation in online spaces is a growing cause of concern. The spread of misleading or patently false information about matters such as the COVID-19 pandemic and climate change poses significant threats to alleviating the harms of each. Indeed, online disinformation undermines public trust in democratic institutions and often adversely affects the already frayed relationship these institutions have with vulnerable populations. Moreover, in a world where communication increasingly happens online, digital disinformation subverts truth and advances the extremist ideas that surge on social media. Yet attempting to mitigate online disinformation implicates concerns over free speech and free association in cyberspace, which in turn affects broader concerns over the sustenance of liberal democracies.
This Article examines online, political disinformation and the corresponding speech issues within the context of the Anthropocene. It asks: If democracies are going to survive the current onslaught of political disinformation in the Anthropocene, how might they adapt? And what will free speech normativity look like in the future? By drawing from the relevant Anthropocene theory across law and the social sciences, and exploring more flexible approaches to free speech norms, it concludes by offering suggestions for mitigating political disinformation and its effects in our current era of global anthropogenic uncertainty
Delaware
Get PDFDelaware law governing police and non-police bargaining is separated into two largely identical statutory schemes. Both statutes provide for interest arbitration and adopt “baseball arbitration” to expedite the arbitration process. Keeping with the goal of expedient dispute resolution, the state’s ULP process seems designed to facilitate settlement.
As a result of this ULP structure, there are few cases from Delaware’s PERB compared to other states. This may have to do with the fact that the myriad preliminary stages of ULP proceedings serve as “off-ramps” to encourage settlement and that the agency’s Executive Director (E.D.) has more power than non-Delaware analogs. It appears that once the E.D. has made their determination of probable cause, most cases resolve—either through dismissal, where there is no probable cause, or through settlement, where there i
Voting Matters: Materiality Considerations and the Shareholder Vote
Get PDFFor the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.
This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that proponents of expanded ESG disclosure demonstrate a correlation between the ESG-related metrics they seek and stock price or financial performance as a condition precedent for new mandatory disclosure rules create an unreasonable framing for ongoing disclosure debates. The Essay asserts instead that, consistent with the Supreme Court’s guidance in TSC v. Northway, information is material if shareholders consider it important when making voting decisions and that materiality determinations should not depend on evidence that shareholder voting preferences correlate with improved corporate performance.
The Essay then explains how ESG-related data can help inform shareholders’ decisions when electing directors or when voting on the wide range of shareholder proposals presented at annual meetings. The Essay concludes by asserting that shareholders’ voting decisions are skewed when they lack access to reliable information on issues they consider important when deciding how to vote. For these reasons, expanding disclosure requirements on ESG-related matters would bolster the integrity of the shareholder vote
Maryland
Get PDFIn Maryland, the legislature has made efforts to consolidate the state’s fragmented public sector collective bargaining apparatus. While the three administrative labor boards have been consolidated into one, municipalities remain outside the coverage of the consolidated law, and the fragmented nature of Maryland labor law persists.
· Fragmentation. Maryland’s state law only covers certain state functions and does not include political subdivisions like Baltimore. Those entities have their own systems of collective bargaining.
· No Cases. Because most of the police departments in Maryland are not covered by the state collective bargaining law, the case law to the extent it exists is in each individual jurisdiction