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Anticompetitive Corporate Spin-offs
Get PDFSection 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.
This Note posits that it is a mistake to treat corporate spin-offs as the de facto corollary to government-supervised structural separations. Tax-free spin-offs are not the self-mediated equivalent to structural remedies for at least three reasons: (1) section 355 allows dominant firms to engineer future market conditions and concentrate power in ways government-supervised separations simply do not; (2) parent companies may spin-off fictitious competitors to artificially inflate competition and deflate power in a given market; and (3) the parent-controlled process invites parent firms to structure progeny firms in patently self-serving ways. The harm continues because the parent company never redistributes monopoly power. Section 355’s authorization of voluntary tax-free spin-offs without regard to anticompetitive effect is in tension with antitrust policy. Yet, no legal mechanisms currently exist to stop or prevent firms from using spin-offs to evade antitrust liability.
In response, this Note proposes a doctrinal shift in the way antitrust courts and plaintiffs approach section 355 spin-offs, beginning with the proper test for market power and anticompetitive effect. As to prevention, regulators should adopt strategies to understand, detect, and stop anticompetitive spin-offs. Legislation is needed to align section 355 with the goals for competitive markets. Nonetheless, the path forward must distinguish between anticompetitive spin-offs and competition on the merits
Emergency Powers: Understanding the Benefits While Mitigating the Consequences
Get PDFThis note compares the short-term benefits and long-term consequences of emergency powers using examples from several countries and offers solutions to mitigate those consequences. Historically, emergency powers were only granted in times of true crises. In those circumstances, emergency powers can serve an important purpose: to help the government run smoothly and efficiently. Unfortunately, permanent power grabs are now more common and the standard for what constitutes an emergency has weakened severely, often resulting in civil rights infringements. Possible solutions to this problem include understanding the negative effects of sunset clauses in emergency acts, increased awareness of manufactured emergencies, encouraging a heightened judicial review during emergencies, and clearly defining the scope of emergency powers in constitutions
The Freedom of Influencing
Get PDFSocial media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio and television, however. The Code of Federal Regulations, FTC notices, and press releases contain exemptions tailored to such legacy media. This Article addresses whether the disparate treatment of social media influencers and certain legacy media formats may amount to a content-based regulation of speech that violates the freedom of speech. Drawing on intellectual property law, consumer law, and securities law precedents, it argues that the more intense focus on disclosures by social media influencers infringes the freedom of influencing. It is irrational and discriminatory to impose greater obligations on influencers who are paid to mention or use products or services than on legacy media formats whose actors or directors mention or use similar products or services
You Can’t Teach Old Katz New Tricks: It’s Time to Revitalize the Fourth Amendment
Get PDFFor over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s unclear standard, counterintuitive application, and lack of guidance for lower courts.
This Note examines the evolution of the Court’s Fourth Amendment jurisprudence both before and after the Katz decision and argues that the Carpenter decision epitomizes Katz’s legacy as a flawed precedent that is incapable of adequately applying the Fourth Amendment to new sets of facts in the twenty-first century and beyond. This Note further argues that Katz should be abandoned as the Fourth Amendment standard in lieu of a hybrid approach that combines privacy and property protections and incorporates positive law in determining the scope of the Fourth Amendment
Race Ethics: Colorblind Formalism and Color-Coded Pragmatism in Lawyer Regulation
Get PDFThe recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville Unite the Right Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more generally. Spoken in archetypal tropes, seen in stereotypical images, and heard in stock stories, race infects the central lawyering roles of advocate and advisor, echoing inside and outside courthouses and resounding in the rules of professional responsibility and the norms of professionalism. By turns cast in colorblind, color-coded, and color-conscious oral, written, and symbolic forms, the meaning of racial identity, racialized narrative, and racially demarcated community is both constructed and contested in the lawyering process and in the regulation of lawyer conduct.
In prior writings across the fields of civil rights, criminal justice, and poverty law, I mapped the intersection of race, representation, and ethics against the contours of the lawyering process, professional regulation, and legal education, especially within law school clinics and indigent civil and criminal justice systems. The purpose of this article is to revisit that body of writing and to reevaluate the continuing uses and the persisting stigma harms of race in contemporary civil rights and criminal justice advocacy, particularly in cases of racial violence. The goal of revisiting and enlarging this previous work is to grasp more fully how civil rights lawyers, prosecutors, and criminal defense attorneys use race to advantage or disadvantage Black litigants, victims, jurors, witnesses, and even other lawyers-and, moreover, how they use ethics rules and standards designed to regulate racial bias and prejudice to justify their conduct
