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Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record
No full textIn early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas. At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians, who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.
Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital. Inquiring people want to know, and manipulative people want to manipulate
Memory, Resistance, and Doubt
No full textBurroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” Mencken wrote, it was Cannon who “had been responsible for forcing Prohibition upon a suffering United States.”
But as sometimes happens to political bosses, Cannon eventually attracted the adverse attention of federal prosecutors. In 1928, Cannon used his political muscle to oppose the presidential candidacy of Al Smith, the eventual Democratic nominee, who favored the repeal of Prohibition. According to an indictment filed against Cannon and his personal secretary, a woman named Ada Burroughs, some of Cannon’s anti-Smith activities fell afoul of a federal campaign finance law, the Corrupt Practices Act, which regulated financial contributions and expenditures related to presidential elections.
In their defense, Burroughs and Cannon challenged the constitutionality of the Corrupt Practices Act. The Constitution, they noted, provides that “[e]ach State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” In their view, that language indicated that the regulation of presidential elections was a matter of state law. Congress’s role in legislating with respect to presidential elections, they contended, was limited to “determining ‘the time of choosing the electors, and the day on which they shall give their votes,’” because that is the only aspect of the process that the Constitution expressly empowers Congress to regulate. Rules for how presidential campaigns were financed were therefore beyond Congress’s ken, and the Corrupt Practices Act was unconstitutional.
The Supreme Court rejected that argument. Justice George Sutherland’s opinion for the Court noted that the Act, by its terms, only covered political activities intended to influence “the election of presidential and vice presidential electors in two or more states.” As such, Sutherland wrote, the Act “in no sense invades any exclusive state power” because it regulated something that no state could adequately deal with alone. Moreover, the presidency is a crucial national office, and denying Congress the power to assure the integrity of presidential elections would “deny to the nation in a vital particular the power of self protection.” Sutherland continued as follows: “Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.
Physicists as Environmental Experts
No full textThe question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.
This Article provides a historical account of how industry-funded physicists sought to limit the types of environmental knowledge that courts deemed reliable. As federal regulations increased during the 1970s, the business community recruited physicists to represent their interests in legal disputes over pollution control. Harvard professor Richard Wilson was the most prominent physicist to engage in this work for the petroleum and chemical industries, and the Article focuses on his role in shaping the way the Supreme Court evaluated environmental and public health studies. Wilson pioneered a method of understanding threats from toxic chemicals called probabilistic, quantitative risk assessment, which industries hoped would limit pollution regulation. He went on to join forces with prominent conservative organizations like the Atlantic Legal Foundation to assist companies in limiting their liability from toxic chemical exposures. Even though Wilson had no training or expertise in environmental health research, the Supreme Court largely adopted his approach to understanding pollution risks and scientific expertise in several enormously important cases for environmental law, including Industrial Union Department, AFL-CIO v. American Petroleum Institute, Daubert v. Merrell Dow Pharmaceuticals, and General Electric Co. v. Joiner
Is the OBBBA Compatible With Pillar 2?
No full textIn this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah compares House and Senate sections of the One Big Beautiful Bill Act and examines the potential effect on international tax relations. On May 22 the House of Representatives passed the One Big Beautiful Bill Act (OBBBA). The House version of the OBBBA extended the Tax Cuts and Jobs Act tax cuts but did not significantly change its international provisions. It did, however, contain proposed section 899, which would have imposed enhanced taxation on residents and corporations from countries that have “discriminatory or extraterritorial taxes,” defined to include primarily the undertaxed profits rule of pillar 2 and digital services taxes. Thus, the House version of the OBBBA continued the president’s declared rejection of pillar 2
Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan)
No full textThis report investigates and estimates racial disparities in prosecutorial decision-making in the Washtenaw County Prosecutor’s Office (WCPO) from 2017 to 2022. The analysis relies on currently available data resources at the WCPO and examines decision-making at four different junctures in the prosecutorial process: 1) case approval (i.e., warrant authorization) and charge selection, 2) habitual-offender designation (under Michigan law), 3) plea bargaining, and 4) diversion and deferral opportunities. Racial disparities appear most visibly at the earliest stages of the criminal justice process, with People of Color substantially overrepresented in the warrant requests the WCPO receives from law enforcement. The data further indicate that, conditional on receiving a warrant request, the WCPO is somewhat more likely to charge People of Color with a crime, although the practical difference in charging rates is small. Furthermore, the analysis uncovers statistically significant racial differences in charging outcomes among defendants with at least one authorized warrant, with the WCPO charging People of Color with more total offenses and more severe offenses than white people on average. Interestingly, the data also indicate that People of Color fare somewhat better than white people with respect to habitual-offender designation, though the use of such designations by the WCPO in recent years is rare. Currently available data indicate no other notable racial disparities in WCPO decision-making during the period of study. Limitations in current data-collection practices represent the main impediment to further examination of WCPO decision-making. Improving and expanding data collection and organization efforts will allow the WCPO to 1) better understand how disparities arise at its early phases of prosecution (e.g., charging) and 2) further explore other decision-making junctures (including plea bargaining and diversion and deferral opportunities) where data are insufficiently available
Integrating the Workforce: A Proposed Expansion of the \u3cem\u3eLane v. Kitzhaber\u3c/em\u3e Rule
Full text linkSheltered workshops are workplaces that employ, and may legally pay subminimum wages to, individuals with disabilities. Though these workshops have historically been a large part of disability employment services in the United States, many policymakers have advocated for a shift from sheltered workshops to integrated disability employment services, in which individuals with disabilities work alongside other workers for an equal wage that meets or exceeds the minimum wage. In Lane v. Kitzhaber, the U.S. District Court for the District of Oregon applied Title II of the Americans with Disabilities Act (ADA) to sheltered workshop programs, holding that states must allow individuals with disabilities to choose the most integrated disability employment service setting for which they are qualified. Although the Lane v. Kitzhaber holding has expanded access to integrated disability employment services, it has failed to fully meet the legal standard under ADA Title II and the Attorney General’s subsequent integration mandate.
The Attorney General’s integration mandate does not eliminate sheltered workshops, but it does require public entities to administer programs in the most integrated setting possible under ADA Title II. Systemic barriers prevent workers with disabilities from transitioning to integrated employment settings when they so desire. Accordingly, courts should expand the Lane rule to require employers to actively promote supported or otherwise-integrated employment opportunities. Such an expansion would ensure that states provide the most integrated disability employment services possible
Civil Jury Trial Discussions in Colorado: Perspectives from Judees and Attorneys After Twenty-Five Years of Jury Reform
Full text linkIn the United States, the overwhelming practice in civil jury trials (and certainly in criminal trials) is that jurors must wait to deliberate until they have heard all the evidence, the attorneys’ closing arguments, and received the instructions on the law from the court. Generally, jurors may not discuss the evidence they are hearing or seeing as the trial progresses, and the judge, at multiple points during the trial, typically instructs jurors not to do so, especially before any recess.
Colorado, among a handful of other jurisdictions, is an exception to that practice. In civil jury trials in district court, the district judge may allow pre-deliberation discussions by the jury. The practice that began in 1998 through a pilot program authorized by the Colorado Supreme Court now seems like an afterthought. District judges routinely allow pre-deliberation discussion and instruct juries accordingly. I am among those judges.
But since the pilot program, little has been done to revisit how jury pre-deliberation discissions are working. Indeed, since 1998, no empirical research has been conducted to address how the practice plays out in district court trials, how often district judges allow pre-deliberation discussions, or how often a judge exercises her discretion to limit (or prohibit) such a practice and why. Similarly, while attorneys were polled in 1998, no new empirical research has been conducted on their views about pre-deliberation discussions.
This article seeks to ascertain those views, primarily through surveys of district court judges and attorneys who try cases in district courts throughout the state. The findings based on the survey responses suggest continued satisfaction with the practice of mid-trial discussions by juries
An Ecofeminist Approach to Climate Risks
Full text linkClimate change poses significant risks to the human right to life. However, international adjudicators have either neglected to examine right to life claims in the context of climate risks or dismissed them as prospective and speculative. International human rights bodies have long applied the standard of imminence to determine whether a threat to the right to life exists and the extent to which it constitutes a violation. In climate change cases, this standard has hardened, requiring a tight temporal connection between climate risks and a violation of the right to life. This article argues that failing to recognize the impact of climate risks on the right to life undermines the protection of historically disadvantaged and minority communities, including women and girls.
This article offers a novel account of an ecofeminist approach to climate risks. Ecofeminism is a branch of feminist philosophy that considers the links between the exploitation of nature and the oppression of women, asserting that both forms of domination are interconnected. This article makes two key contributions to the existing literature. First, it establishes how climate change exacerbates domestic violence, and exposes the disproportionate effects of climate change on the lives of women and girls. Second, the article argues that human rights responses to domestic violence can serve as a model for addressing climate risks. International human rights bodies, including the European Court of Human Rights, have long identified violations of the right to life in domestic violence cases involving disproportionate harm, even where the harm was seen as uncertain or prospective. Adopting a similar approach to address climate risks, courts could begin to recognize the unequal impacts of climate change and the recurring nature of climate risks. An ecofeminist approach to climate risks has the potential to highlight avenues for reform, such as by mandating strict proactive due diligence obligations on states and ultimately corporations
Pave Outer Space and Put Up A Parking Lot: Lagrange Points Should Be the Common Heritage of Mankind
Full text linkOuter space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.
This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford unique advantages for human-made space objects to loiter indefinitely with minimal expenditure of propulsive energy. Lagrange points constitute a scarce resource that is just beginning to be occupied; existing international law is inadequate for optimal governance of their future occupation and use.
This article proposes that the Lagrange points should be regarded as “the common heritage of mankind.” That structure has been applied—with intense controversy—in other domains, even though it remains imprecisely defined. The article offers a more comprehensive understanding of the concept, a portrait of how it could be applied to Lagrange points, and an argument in favor of that resolution
