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Just to Be Safe, Let’s Keep Ignoring What “Arms” Meant in 1791
No full textThe Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history. Commonality and lawful purpose have proved difficult for lower courts to define, as evidenced by conflicting rulings on whether AR-15s are “arms” under the Second Amendment.
This Essay contends that Heller’s definition of “arms” is incorrect as a matter of history, which helps explain the struggle of lower courts to employ that definition. The philosophy, politics, and technology of the era suggest that the militia served a military function and therefore required military weapons. The militia were to be citizen-soldiers, protecting their communities, not simply engaging in self-defense. Consistent with that mission, the militia generally used military weaponry, often provided by their communities, states, or private groups. Early American policy relating to the militia focused on how to improve and regularize its weaponry for military ends. Civilian weapons used for self-defense or hunting were understood to be militarily useless and were only employed out of desperate necessity
Redefining the Relevant Market: Abandonment or Return to Brown Shoe
No full textDefining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the Brown Shoe decision, the Supreme Court has continuously refined this process.
After 1982, however, defining a relevant market consists of the parties applying the Brown Shoe test and complex econometric tests. Concerning the use of econometrics, the process is almost entirely based on abstract, confusing, highly subjective, and unnecessary economic theory. The high cost and complexity of econometric tests deter and inhibit antitrust litigation because judges often dismiss plaintiffs’ claims that fail to construct relevant markets that comply with the tests’ stringent requirements.
This Article recommends two alternative approaches to remedy the problems created by the econometric process. The first option is to abandon defining relevant markets altogether. Instead, clear, bright-line rules should determine the illegality of most antitrust conduct—particularly for mergers, exclusive deals, and tying arrangements. The bright-line rules should be fixed to easily calculate financial metrics such as revenue, profit, total assets, or transaction size. This proposal can be implemented through the Supreme Court overturning its Brown Shoe precedent, amendments to the antitrust laws from Congress, or from federal administrative agencies (such as the Federal Trade Commission) employing their broad rulemaking power to regulate unfair methods of competition. Alternatively, when bright-line rules cannot be used, or it would not be prudent to do so, enforcers and judges should exclusively use the Brown Shoe test.
This Article illustrates how both proposals offer significant benefits to antitrust enforcers and the public. Many criticisms of these proposals are unfounded, misguided, and overblown; what is critiqued may, in fact, be desirable
The Method Is the Message: Movement Law and the Social Change Commons
No full textLegal scholars have long sought to understand the relationship between social movements and the law. A new group of such scholars has argued that to better understand this relationship, and to advance social change that is effective, sustainable, equitable, and just, they must engage in dialogue with such movements to generate ideas that will catalyze that change. For those interested in generating ideas that can spark meaningful and lasting social change, such developments in legal scholarship represent an exciting evolution in the relationship between legal scholarship, legal scholars, and social movements: a relationship that appears to be growing stronger, deeper, more integrated, and more complex. At the same time, a different body of socio-legal scholarship, that which focuses on production of culture, assesses the institutional and normative environment in which such ideas are produced, looking at the financial and other incentives necessary to do so. The co-creation of ideas in the social change space represents, in many ways, the production of cultural phenomena (how to frame a particular injustice, the prefigured imaginings of what justice could look like, and the tactics and strategies necessary to realize that vision of justice). Yet creativity and ideation in this space are different from the typical context in which cultural artifacts are produced; social change requires a different approach; different logics; and a different understanding of how to incentivize, foster, and nurture co-creation. This work identifies the environment necessary for the co-creation of ideas that will advance social change that is just, effective, and durable as what is called in the literature a commons. A commons generally requires a particular set of institutional arrangements in order to flourish. As a commons, those who would operate within it can learn from the lessons of effective common-pool-resource management to understand the institutions that typically lead to positive outcomes in such settings. This is the first Article to identify the social change space as a commons, and then to analyze the functioning of that commons to identify the norms and institutions that foster effective cultural innovation in such settings
