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Borders and Boundaries in Markets: A Sociocognitive Approach for Market Definition and Implications for Antitrust
No full textCategorical distinctions are foundational to firm competition and regulation. Yet, market categories are notoriously difficult to define. The question of how to delineate markets is well-worn in the antitrust literature but is now the focus of a growing sociocognitive literature in strategy and organizational sociology.1 Historically, there has been little cross-pollination between these research areas. More integration, however, may be increasingly important in modern markets, where change is rapid, new technologies are key differentiators in many traditional industries, and platform competition is on the rise. In this paper, I introduce recent theoretical and empirical advances in sociocognitive research on categories in markets. I describe a theoretical model that incorporates the probabilistic nature of how people categorize, ambiguity in category boundaries, and that multiple audiences are relevant in most markets. Empirically, researchers employ a range of approaches to represent these aspects of market definition, from qualitative studies, to surveys, to computational approaches that leverage recent advances in machine learning applied to large corpora of text. I discuss key implications from this theoretical model and how they might inform market definition in antitrust
Defunding Cities: Reconsidering the Fiscal Sanctioning Measures of State Punitive Preemption Statutes
No full textIn an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching punitive mechanisms to preemption legislation that, in the event of local noncompliance, create criminal and civil liability for local officials, provide removal mechanisms for elected officials, and allow for the fiscal sanctioning of local governments.
This Comment considers whether local governments are legally protected from state-sanctioned punitive financial penalties. In doing so, it distinguishes financial penalties from permissible forms of state preemption and analyzes existing judicial decisions that consider financial penalty arguments. After discussing the existing doctrine, this Comment develops a conceptual framework to suggest that certain punitive preemption tools are not legal. Ultimately, this Comment maintains that coercive financial mechanisms attached to preempting legislation are unconstitutionally coercive as they functionally force local governments to relinquish core elements of their sovereignty
The Only Ten I See: Why Congress Should Follow Tennessee’s Lead and Pass NIL Legislation Allowing Collectives to Work Directly with Schools
No full textCryptocurrency — Legally Navigating The “Highway to Climate Hell”
No full textThe U.S. electric system is regarded as history’s greatest engineering achievement and the second most important invention in history. This Article analyzes the provocative legal ‘dark side’ of crypto currency now compromising the sustainability and resiliency of the U.S. electric system. Crypto currency miners have migrated in mass during the 2020s from Asia to several areas of the U.S., choosing inefficiently to waste large amounts of fossil-fuel and electric power. Scholars suggest that Bitcoin’s indirect carbon emissions at the current rate, alone with no other increases by world nations (which in fact are still increasing rapidly) are enough to push global warming beyond the Paris Agreement commitment to stay below an increase in temperature of two degrees Celsius.
The Secretary-General of the United Nations states that we are travelling now on the “highway to climate hell.” This Article analyzes the legal ‘dark side’ of crypto currency, the Constitution, and recent Supreme Court precedent:
• Notwithstanding that climate policy is federal law and that electric power is the key sector of the economy warming climate, the federal government has no authority over crypto mining and its excessive electric power use emitting greenhouse gases;
• Constitutional and common law precedent limiting government crypto control;
• Constitutional separation of powers constricting Executive Branch action on climate and electric power matters, culminating in the West Virginia v. EPA (2022) decision;
• Equal Protection Clause precedent blocking state actions restricting crypto power use; and
• A suite of failed federal and state attempts to legally regulate crypto mining.
This Article highlights and analyzes U.S. crypto miners choosing fossil-fuel- fired power extending the life of polluting coal plants otherwise scheduled to close. This frustrates President Biden’s Inflation Reduction Act devoting hundreds of billions of dollars to shift the U.S. economy to renewable energy. This frustration is backstopped now by hundreds of cities in 31 states plus several states, supported by Supreme Court precedent, blocking effective rapid deployment of Biden’s sustainable renewable energy infrastructure laws and thus significantly warming climate.
In its final sections, this Article constructs legal ‘work-arounds’ to regulate crypto power that do not require any change of U.S. law or any action that contradicts the Constitution’s separation of powers. States have discretion strategically to reconstruct certain incentives and moratoria to reshape the use of power resources for crypto mining that will shift resource use in order better to sustain a fragile climate. These techniques are necessary as well to preserve resiliency of the U.S. electric power system and to meet U.S. international climate pledges to maintain a livable climate. The final sections propose a ‘win-win’ outcome
Chapter 13: Let’s Call the Whole Thing Off
No full textCourts cannot agree on much of anything about chapter 13, and legislators cannot agree and are confused over what to do about it. This state of affairs benefits no one and shows no signs of abating. So, in this Article, I propose to throw in the towel by imagining a world without chapter 13. Spoiler alert: although I am not superstitious, with just a few tweaks and tucks to chapter 7, I think the Bankruptcy Code might just be better off operating like a high-rise elevator that goes directly from floor twelve to floor fourteen. I will lay it out and readers can decide for themselves if they are prepared to become anti-choice. For me, in the words of the legendary Louis Armstrong, “and I think to myself what a wonderful world” it would be without chapter 13
The NCAA\u27s Challenge in Determining NIL Market Value
No full textThis Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed by a neutral body. The NCAA is not neutral when it comes to college athletes. Finally, Part IV calls on Congress to enter the NIL dialogue if only to even out the recruiting advantages NIL is creating. While fair market value may be impossible to establish, national uniform laws can be put in place to ensure that recruiting wars depend on educational and athletic opportunities rather than the wealth of collectives. Unless Congress acts, college athletics will remain mired in the Wild, Wild, unregulated West
Not Even a Federal Judge Can Make Texas Protect Kids
No full textIn a thirteenth-floor courtroom in downtown Dallas, Jackie Juarez took the witness stand to testify about years of mistreatment under the system that raised her. Now eighteen years old, she stood a little over four and a half feet tall, with dark curls that fell atop a long, cream-colored cardigan. She pulled By Patrick Michels the microphone close as she spoke. At eleven years old, she had been placed in the state’s custody, for reasons that remain confidential. She was removed from a group home after reporting inappropriate text messages from a male staffer—he remained employed at the facility, while Juarez was accused of causing trouble—only to be shuffled among hotels and churches and even forced to sleep in office buildings. She was what the state calls a “child without placement,” or CWOP—a cold acronym used by bureaucrats to refer to the perilous limbo on the margins of the foster care system