Author Archive for stanford-law-review
Stanford Law Review Online: Kirtsaeng and the First-Sale Doctrine’s Digital Problem
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Professor Clark D. Asay entitled Kirtsaeng and the First-Sale Doctrine’s Digital Problem. Professor Asay argues that:
[T]he history and purpose of the first-sale doctrine provide good reasons to abandon the licensee/owner dichotomy as well as the formalistic approach to interpreting the doctrine’s applicability to digital transfers. Doing so, furthermore, is unlikely to undermine markets for copyrighted works, but instead will help preserve the appropriate balance between the rights of copyright holders and consumers that first-sale rights have historically helped maintain.
He concludes:
The Kirtsaeng decision helped further cement the first-sale doctrine as an important limitation on the rights of copyright holders. But more cement is needed. Specifically, as the digitization of copyrighted works increases, first-sale rights face increasing peril as copyright holders subject consumers to click-through agreements that eviscerate first-sale rights in effect if not in theory. Furthermore, some courts have recently employed a formalistic ap-proach to the statutory text that renders first-sale rights simply inapplicable to digital transfers. If Kirtsaeng is to avoid becoming the first-sale doc-trine’s “swan song,” courts and Congress must respond to save it.
Read the full article, Kirtsaeng and the First-Sale Doctrine’s Digital Problem at the Stanford Law Review Online.
May 7, 2013 at 4:47 am
Posted in: Intellectual Property
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Stanford Law Review Online: Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Professors Paul Rose & Christopher J. Walker entitled Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture. Professors Rose and Walker argue that Dodd-Frank regulators should consider more
seriously the democratic accountability concerns at play when regulating the financial markets.
The lack of attention to accountability is particularly troubling in the Dodd-Frank con-text, where most regulators are independent agencies and thus less demo-cratically accountable via presidential oversight. In particular, independent agencies are not required to submit proposed rules and accompanying eco-nomic analyses for presidential review. Nor are their high-ranking officials subject to plenary presidential removal authority. Without another means of accountability—e.g., a robust cost-benefit analysis embedded in notice-and-comment rulemaking—independent agencies are more vulnerable to agency capture.
They conclude:
Despite decades-long bipartisan support for cost-benefit analysis, regu-lators of financial markets (whose rulemaking is not subject to presidential review) have been slower and more haphazard in adopting this method than their executive agency counterparts. Especially now that Dodd-Frank has exponentially increased the amount of financial rulemaking and considera-bly raised the stakes for regulating the financial markets, financial regula-tors can and should ground their rulemaking in a proper cost-benefit analy-sis to arrive at more rational decisionmaking and more efficient regulation. Conducting a rigorous cost-benefit analysis via notice-and-comment rule-making also makes for good governance. Without such public transpar-ency—especially in the context of independent agencies—democratic accountability suffers, and agency capture becomes a greater threat.
Read the full article, Dodd-Frank Regulators, Cost-Benefit Analysis, and Agency Capture at the Stanford Law Review Online.
April 29, 2013 at 3:57 am
Posted in: Financial Institutions
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Stanford Law Review Online: Of Arms and Aliens
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.
Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right[] not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.
She concludes:
Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.
Read the full article, Of Arms and Aliens at the Stanford Law Review Online.
April 19, 2013 at 10:52 pm
Posted in: Constitutional Law, Immigration
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Stanford Law Review, 65.2 (2013)
posted by Stanford Law Review
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Volume 65 • Issue 2 • February 2013 |
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Articles Double Immunity Torts & Estates: Remedying Wrongful Interference with Inheritance Woman Lawyer: The Trials of Clara Foltz |
For more articles and recent analysis of legal issues, visit our website: http://www.stanfordlawreview.org.
March 4, 2013 at 10:30 am
Posted in: Law Rev (Stanford)
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Stanford Law Review Online: Anticipating Patentable Subject Matter
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Dan L. Burk entitled Anticipating Patentable Subject Matter. Professor Burk argues that the fact that something might be found in nature should not necessarily preclude its patentability:
The Supreme Court has added to its upcoming docket Association for Molecular Pathology v. Myriad Genetics, Inc., to consider the question: “Are human genes patentable?” This question implicates patent law’s “products of nature” doctrine, which excludes from patentability naturally occurring materials. The Supreme Court has previously recognized that “anything under the sun that is made by man” falls within patentable subject matter, implying that things under the sun not made by man do not fall within patentable subject matter.
One of the recurring arguments for classifying genes as products of nature has been that these materials, even if created in the laboratory, could sometimes instead have been located by scouring the contents of human cells. But virtually the same argument has been advanced and rejected in another area of patent law: the novelty of patented inventions. The rule in that context has been that we reward the inventor who provides us with access to the materials, even if in hindsight they might have already been present in the prior art. As a matter of doctrine and policy, the rule for patentable subject matter should be the same.
He concludes:
“I can find the invention somewhere in nature once an inventor has shown it to me” is clearly the wrong standard for a patent system that hopes to promote progress in the useful arts. The fact that a version of the invention may have previously existed, unrecognized, unavailable, and unappreciated, should be irrelevant to patentability under either novelty or subject matter. The proper question is: did the inventor make available to humankind something we didn’t have available before? On this standard, the reverse transcribed molecules created by the inventors in Myriad are clearly patentable subject matter.
Read the full article, Anticipating Patentable Subject Matter at the Stanford Law Review Online.
February 21, 2013 at 10:30 am
Tags: biology, Intellectual Property, law and science, nature, patent law, patents, science, Supreme Court
Posted in: Intellectual Property, Law Rev (Stanford), Supreme Court
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The Stanford Law Review Online: School Security Considerations After Newtown
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Jason P. Nance entitled School Security Considerations After Newtown. Professor Nance writes that strict school security measures may be ineffective but have a balkanizing effect:
On December 14, 2012, and in the weeks thereafter, our country mourned the deaths of twenty children and six educators who were brutally shot and killed at Sandy Hook Elementary School in Newtown, Connecticut. Since that horrific event, parents, educators, and lawmakers have understandably turned their attention to implementing stronger school security measures to prevent such atrocities from happening again. In fact, many states have enacted or proposed legislation to provide additional funds to schools for metal detectors, surveillance cameras, bulletproof glass, locked gates, and law enforcement officers. Because increased security measures are unlikely to prevent someone determined to commit a violent act at school from succeeding, funding currently dedicated to school security can be put to better use by implementing alternative programs in schools that promote peaceful resolution of conflict.
He concludes:
The events at Newtown have caused all of us to deeply consider how to keep students safe at school. A natural response to this atrocity is to demand that lawmakers and school administrators invest our limited public funds into strict security measures. But this strategy is misguided. Empirical evidence suggests that these additional investments in security equipment and law enforcement officers may lead to further disparities along racial and economic lines. Further, it is imperative that all constituencies understand that there are more effective ways to address violence than resorting to coercive measures that harm the educational environment. Indeed, schools can make a tremendous impact in the lives of students by teaching students appropriate ways to resolve conflict and making them feel respected, trusted, and cared for. These are the types of schools that can make a real difference in the lives of students.
Read the full article, School Security Considerations After Newtown at the Stanford Law Review Online.
February 11, 2013 at 10:45 am
Tags: Civil Rights, Education, Policy, school security, schools
Posted in: Civil Rights, Education, Empirical Analysis of Law, Law Rev (Stanford), Politics
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Stanford Law Review, 65.1 (2013)
posted by Stanford Law Review
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Volume 65 • Issue 1 • January 2013 |
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Articles Putting Desert in its Place A Clinic’s Place in the Supreme Court Bar Notes |
January 29, 2013 at 11:00 am
Tags: law review
Posted in: Law Rev (Stanford)
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The Stanford Law Review Online: Defending DOMA in Court
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.
He concludes:
Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.
Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.
January 28, 2013 at 10:30 am
Tags: Civil Procedure, Civil Rights, Constitutional Law, same sex marriage, standing, Supreme Court
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Courts, Current Events, Law Rev (Stanford), Supreme Court
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Stanford Law Review Online: Forgetting Romer
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Susannah W. Pollvogt entitled Forgetting Romer. Pollvogt writes that the Supreme Court’s decision to hear the challenge to California’s Proposition 8 in Hollingsworth v. Perry may result in a narrow holding that severely limits the role of unconstitutional animus in American jurisprudence:
What are the implications of the Court’s decision to grant certiorari in Hollingsworth v. Perry? Advocates of marriage equality may worry that the Court granted certiorari to overturn the decision. But they should also worry that the Court accepted certiorari to affirm the decision on the same narrow legal and factual grounds relied upon by the Ninth Circuit. Because, while the Ninth Circuit’s reasoning was good for marriage equality in California, it could be devastating to marriage equality efforts in other jurisdictions.
She concludes:
It is important to recognize that the Ninth Circuit’s decision in Perry did not purport to provide a comprehensive account of the doctrine of unconstitutional animus, and it should not be interpreted as doing so. Judicial restraint of the type exercised by Judge Reinhardt in Perry is indeed generally a virtue, but not in circumstances where it perpetuates doctrinal confusion. The marriage equality cases, including Perry, provide the Court with an opportunity to rationalize the doctrine of unconstitutional animus and articulate a clear, consistent, and principled standard for courts to apply going forward.
Read the full article, Forgetting Romer at the Stanford Law Review Online.
January 10, 2013 at 10:15 am
Posted in: Uncategorized
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Stanford Law Review Online: Privilege and the Belfast Project
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Will Havemann entitled Privilege and the Belfast Project. Havemann argues that a recent First Circuit opinion goes too far and threatens the idea of academic privilege:
In 2001, two Irish scholars living in the United States set out to compile the recollections of men and women involved in the decades-long conflict in Northern Ireland. The result was the Belfast Project, an oral history project housed at Boston College that collected interviews from many who were personally involved in the violent Northern Irish “Troubles.” To induce participants to document their memories for posterity, Belfast Project historians promised all those interviewed that the contents of their testimonials would remain confidential until they died. More than a decade later, this promise of confidentiality is at the heart of a legal dispute implicating the United States’ bilateral legal assistance treaty with the United Kingdom, the so-called academic’s privilege, and the First Amendment.
He concludes:
Given the confusion sown by Branzburg’s fractured opinion, the First Circuit’s hardnosed decision is unsurprising. But by disavowing the balancing approach recommended in Justice Powell’s concurring Branzburg opinion, and by overlooking the considerable interests supporting the Belfast Project’s confidentiality guarantee, the First Circuit erred both as a matter of precedent and of policy. At least one Supreme Court Justice has signaled a willingness to correct the mischief done by the First Circuit, and to clarify an area of First Amendment law where the Court’s guidance is sorely needed. The rest of the Court should take note.
Read the full article, Privilege and the Belfast Project at the Stanford Law Review Online.
December 5, 2012 at 10:45 am
Tags: academic privilege, academy, Civil Rights, Constitutional Law, First Amendment, international law, privilege, treaties
Posted in: Anonymity, Civil Rights, Constitutional Law, Current Events, First Amendment, International & Comparative Law, Law Rev (Stanford), Media Law
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Stanford Law Review Online: Software Speech
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:
When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.
He concludes:
By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.
Read the full article, Software Speech at the Stanford Law Review Online.
November 15, 2012 at 10:18 am
Tags: Constitutional Law, Cyber Civil Rights, First Amendment, search engines, technology, videogames
Posted in: Constitutional Law, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Law Rev (Stanford), Supreme Court, Technology
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Stanford Law Review Online: The Hunt for Noncitizen Voters
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:
Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.
She concludes:
Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.
Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.
October 31, 2012 at 9:30 am
Tags: Civil Rights, Constitutional Law, Election law, Immigration, Politics, voter rights
Posted in: Civil Rights, Constitutional Law, Election Law, Immigration, Law Rev (Stanford), Politics
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Stanford Law Review Online: Dahlia v. Rodriguez
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Kendall Turner entitled Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent. Turner argues that the Ninth Circuit has an opportunity to make an important change to the rules governing the application of First Amendment protections to the speech of public employees:
In December 2007, Angelo Dahlia, a detective for the City of Burbank, California, allegedly witnessed his fellow police officers using unlawful interrogation tactics. According to Dahlia, these officers beat multiple suspects, squeezed the throat of one suspect, and placed a gun directly under that suspect’s eye. The Burbank Chief of Police seemed to encourage this behavior: after learning that certain suspects were not yet under arrest, he allegedly urged his employees to “beat another [suspect] until they are all in custody.”
After some delay, Dahlia reported his colleagues’ conduct to the Los Angeles Sheriff’s Department. Four days later, Burbank’s Chief of Police placed Dahlia on administrative leave. Dahlia subsequently filed a 42 U.S.C. § 1983 action against the Chief and other members of the Burbank Police Department, alleging that his placement on administrative leave was unconstitutional retaliation for the exercise of his First Amendment rights.
She concludes:
Dahlia offers the Ninth Circuit an opportunity to overturn Huppert and articulate a narrow understanding of Garcetti. This narrow understanding accords with the reality of public employees’ duties—for the duties they are actually expected to perform may differ significantly from the responsibilities listed in their job descriptions. A narrow reading of Garcetti is also essential to ensuring adequate protection of free speech: The answer to the question of when the First Amendment protects a public employee’s statements made pursuant to his official duties may not be “always,” but it cannot be “never.”
Read the full article, Dahlia v. Rodriguez: A Chance to Overrule Dangerous Precedent at the Stanford Law Review Online.
October 22, 2012 at 10:39 am
Tags: Civil Rights, Constitutional Law, employee speech.public employees, First Amendment, Ninth Circuit
Posted in: Civil Rights, Constitutional Law, Employment Law, First Amendment, Law Rev (Stanford)
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Stanford Law Review Online: The Violence Against Women Act and Double Jeopardy in Higher Education
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Andrew Kloster entitled The Violence Against Women Act and Double Jeopardy in Higher Education. Mr. Kloster argues that proposed changes to the Violence Against Women Act have potentially serious implications for persons accused committing sexual assault in university proceedings:
The reauthorization of the Violence Against Women Act (VAWA), set to expire this year, has elicited predictable partisan rancor. While there is little chance of the reauthorization being enacted by Congress so close to an election, the Senate draft includes a provision that raises interesting issues for the rights of students involved in sexual assault disciplinary proceedings on campus. The Senate version of VAWA could arguably condition a university’s receipt of federal funds on a requirement that the university always provide an appeal right for both accuser and accused. Setting aside the massive rise in federal micromanagement of college disciplinary proceedings, the proposed language in VAWA raises serious, unsettled issues of the application of double jeopardy principles in the higher education context.
He concludes:
Whatever the legal basis, it is clear that both Congress and the Department of Education ought to take seriously the risk that mandating that all universities receiving federal funds afford a dual appeal right in college disciplinary proceedings violates fundamental notions of fairness and legal norms prohibiting double jeopardy. College disciplinary hearings are serious matters that retain very few specific procedural safeguards for accused students, and permitting “do-overs” (let alone mandating them) does incredible damage to the fundamental rights of students.
Read the full article, The Violence Against Women Act and Double Jeopardy in Higher Education at the Stanford Law Review Online.
October 10, 2012 at 10:30 am
Tags: Constitutional Law, Criminal Law, Criminal Procedure, Education, feminism
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Education, Feminism and Gender, Law Rev (Stanford)
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Stanford Law Review Online: Pulling the Plug on the Virtual Jury
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Nicolas L. Martinez entitled Pulling the Plug on the Virtual Jury. Martinez takes issue with Judge William Young’s proposal that Khalid Sheikh Mohammed be tried via videoconference from Guantanamo Bay by a jury sitting in New York:
Most people probably figured that the debate over where to try alleged 9/11 mastermind Khalid Sheikh Mohammed (“KSM”) had ended. Indeed, it has been well over a year since Congress forced Attorney General Eric Holder to reluctantly announce that KSM’s prosecution would be referred to the Department of Defense for trial before a Guantanamo military commission. But a provocative proposal put forth recently by Judge William G. Young of the District of Massachusetts has revitalized one of the most contentious legal debates of the post-9/11 era. In a nutshell, Judge Young proposes that an Article III court try KSM at Guantanamo, but with one major twist: the jury would remain in New York City.
He concludes:
Perhaps unwilling to refight the battles of two years ago, Congress has shown no inclination to retreat from its apparent view that KSM may only be tried by a military commission at Guantanamo. As a result, following through on Judge Young’s plan, which could be viewed as an attempt to circumvent the will of Congress, might lead some legislators to harden their stance on civilian trials for alleged terrorists and propose even more disagreeable legislation to that end. This is not to say that creative solutions aimed at fortifying the rule of law in a post-9/11 world should be held hostage to the proclivities of intransigent voting blocs in Congress. Quite the opposite, in fact. But the likely political ramifications of Judge Young’s proposal cannot be ignored, especially in an election year when few members of Congress may be willing to spend their political capital defending the need to hold KSM’s trial in federal court.
Even though Judge Young’s provocative suggestion should not be adopted in its current form, he has moved the conversation in the right direction. Continuing to think imaginatively about ways to preserve our rule of law tradition from external threats is immensely important, particularly in the context of national security crises. For it is when the rule of law can be so easily discarded that it must be most doggedly defended.
Read the full article, Pulling the Plug on the Virtual Jury at the Stanford Law Review Online.
September 13, 2012 at 10:00 am
Tags: Civil Rights, Courts, criminal justice, Criminal Law, Criminal Procedure, guantanamo bay, military commissions, security, War on Terror
Posted in: Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Law Rev (Stanford), Military Law, Politics
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Stanford Law Review Online: The Obama Justice Department’s Merger Enforcement Record
posted by Stanford Law Review
Continuing our dialog on antitrust enforcement, the Stanford Law Review Online has just published an Essay by Daniel A. Crane entitled The Obama Justice Department’s Merger Enforcement Record. Professor Crane responds to Carl Shapiro and Jonathan Baker’s criticism of his response to his earlier Essay:
My recent Essay, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, examined the three major areas of antitrust enforcement—cartels, mergers, and civil non-merger—and argued that, contrary to some popular impressions, the Obama Justice Department has not “reinvigorated” antitrust enforcement. Jonathan Baker and Carl Shapiro have published a response, which focuses solely on merger enforcement. Baker and Shapiro’s argument that the Obama Justice Department actually did reinvigorate merger enforcement is unconvincing.
He concludes:
Jon Baker and Carl Shapiro are smart, effective economists for whom I have great respect. I have few quarrels with how they or the Obama Administration in general conduct antitrust enforcement. The point of my essay was that antitrust enforcement has become largely technocratic and independent of political ideology. I have heard nothing that dissuades me from that view.
Read the full article, The Obama Justice Department’s Merger Enforcement Record by Daniel A. Crane, at the Stanford Law Review Online.
September 6, 2012 at 3:03 pm
Tags: Antitrust, merger enforcemenet, mergers, Obama administration, Policy
Posted in: Antitrust, Corporate Law, Current Events, Empirical Analysis of Law, Law Rev (Stanford), Politics
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Stanford Law Review Online: Politicizing the Supreme Court
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:
To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.
He concludes:
The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.
Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.
August 30, 2012 at 9:30 am
Tags: constitution, Constitutional Law, Courts, founding, framers, history, Politics, Supreme Court
Posted in: Constitutional Law, Courts, Current Events, History of Law, Jurisprudence, Law Rev (Stanford), Politics, Supreme Court
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Stanford Law Review Online: Evaluating Merger Enforcement During the Obama Administration
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Jonathan Baker and Carl Shapiro entitled Evaluating Merger Enforcement During the Obama Administration. Professors Baker and Shapiro take issue with Daniel Crane’s assertions in his Essay of July 18:
We recently concluded that government merger enforcement statistics “provide clear evidence that the Obama Administration reinvigorated merger enforcement, as it set out to do.” Three weeks later, in an article published in the Stanford Law Review Online, Professor Daniel A. Crane reached the opposite conclusion, claiming that “[t]he merger statistics do not evidence ‘reinvigoration’ of merger enforcement under Obama.”
Crane is simply wrong. The data regarding merger enforcement unambiguously support our conclusion and cannot reasonably be read to support Crane’s assertions. Crane’s conclusion regarding merger enforcement is inaccurate because he relies upon flawed metrics and overlooks or misinterprets other important evidence.
They conclude:
Our analysis of merger enforcement at the DOJ during the George W. Bush Administration—based on the enforcement statistics and more—showed that it was unusually lax and in need of reinvigoration. It is too early to reach a comparably definitive conclusion about merger enforcement at the DOJ during the Obama Administration, but nothing in Daniel Crane’s article seriously challenges our interpretation of the preliminary data as demonstrating that the necessary reinvigoration has taken place.
Read the full article, Evaluating Merger Enforcement During the Obama Administration by Jonathan Baker and Carl Shapiro, at the Stanford Law Review Online.
August 21, 2012 at 9:30 am
Tags: Antitrust, bush administration, executive branch, FTC, merger enforcement, mergers, Obama administration, Politics
Posted in: Antitrust, Empirical Analysis of Law, Law Rev (Stanford), Politics
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Stanford Law Review Online: The Dirty Little Secret of (Estate) Tax Reform
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Edward McCaffery entitled The Dirty Little Secret of (Estate) Tax Reform. Professor McCaffery argues that Congress encourages and perpetuates the cycle of special interest spending on the tax reform issue:
Spoiler alert! The dirty little secret of estate tax reform is the same as the dirty little secret about many things that transpire, or fail to transpire, inside the Beltway: it’s all about money. But no, it is not quite what you think. The secret is not that special interests give boatloads of money to politicians. Of course they do. That may well be dirty, but it is hardly secret. The dirty little secret I come to lay bare is that Congress likes it this way. Congress wants there to be special interests, small groups with high stakes in what it does or does not do. These are necessary conditions for Congress to get what it needs: money, for itself and its campaigns. Although the near certainty of getting re-elected could point to the contrary, elected officials raise more money than ever. Tax reform in general, and estate tax repeal or reform in particular, illustrate the point: Congress has shown an appetite for keeping the issue of estate tax repeal alive through a never-ending series of brinksmanship votes; it never does anything fundamental or, for that matter, principled, but rakes in cash year in and year out for just considering the matter.
He concludes:
On the estate tax, then, it is easy to predict what will happen: not much. We will not see a return to year 2000 levels, and we will not see repeal. The one cautionary note I must add is that, going back to the game, something has to happen sometime, or the parties paying Congress and lobbyists will wise up and stop paying to play. But that has not kicked in yet, decades into the story, and it may not kick in until more people read this Essay, and start to watch the watchdogs. Fat chance of that happening, too, I suppose. In the meantime, without a meaningful wealth-transfer tax (the gift and estate taxes raise a very minimal amount of revenue and may even lose money when the income tax savings of standard estate-planning techniques, such as charitable and life insurance trusts, are taken into account), one fundamental insight of the special interest model continue to obtain. Big groups with small stakes—that is, most of us—continue to pay through increasingly burdensome middle class taxes for most of what government does, including stringing along those “lucky” enough to be members of a special interest group. It’s a variant of a very old story, and it is time to stop keeping it secret.
Read the full article, The Dirty Little Secret of (Estate) Tax Reform by Edward McCaffery, at the Stanford Law Review Online.
August 14, 2012 at 10:00 am
Tags: Congress, death tax, estate tax, Politics, special interests, tax, tax law, taxes
Posted in: Current Events, Empirical Analysis of Law, Law Rev (Stanford), Politics, Tax, Uncategorized
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Has the Obama Justice Department Reinvigorated Antitrust Enforcement?
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Daniel Crane entitled Has the Obama Justice Department Reinvigorated Antitrust Enforcement?. Professor Crane assesses antitrust enforcement in the Obama and Bush administrations using several empirical measures:
The Justice Department’s recently filed antitrust case against Apple and several major book publishers over e-book pricing, which comes on the heels of the Justice Department’s successful challenge to the proposed merger of AT&T and T-Mobile, has contributed to the perception that the Obama Administration is reinvigorating antitrust enforcement from its recent stupor. As a candidate for President, then-Senator Obama criticized the Bush Administration as having the “weakest record of antitrust enforcement of any administration in the last half century” and vowed to step up enforcement. Early in the Obama Administration, Justice Department officials furthered this perception by withdrawing the Bush Administration’s report on monopolization offenses and suggesting that the fault for the financial crisis might lie at the feet of lax antitrust enforcement. Even before the AT&T and Apple cases, media reports frequently suggested that antitrust enforcement is significantly tougher under President Obama.
For better or worse, the Administration’s enforcement record does not bear out this impression. With only a few exceptions, current enforcement looks much like enforcement under the Bush Administration. Antitrust enforcement in the modern era is a technical and technocratic enterprise. Although there will be tweaks at the margin from administration to administration, the core of antitrust enforcement has been practiced in a relatively nonideological and nonpartisan way over the last several decades.
He concludes:
Two points stressed earlier should be stressed again: (1) statistical measures of antitrust enforcement are an incomplete way of understanding the overall level of enforcement; and (2) to say that the Obama Administration’s record of enforcement is not materially different than the Bush Administration’s is not to chide Obama for weak enforcement. Rather, it is to debunk the claims that antitrust enforcement is strongly dependent on politics.
This examination of the “reinvigoration” claim should not be understood as acceptance that tougher antitrust enforcement is always better. Certainly, there have been occasions when an administration would be wise to ease off the gas pedal. At present, however, there is a high degree of continuity from one administration to the next.
Read the full article, Has the Obama Justice Department Reinvigorated Antitrust Enforcement? by Daniel Crane, at the Stanford Law Review Online.
July 18, 2012 at 10:15 am
Tags: Antitrust, Corporate Law, law enforcement, Obama administration
Posted in: Antitrust, Empirical Analysis of Law, Law Rev (Stanford), Politics
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