Recent Submissions

  • REPRESENTING JUSTICE Invention, Controversy, and Rights in City-States and Democratic Courtrooms

    Resnik, Judith; Curtis, Dennis (Yale Law Library Series in Legal History and Reference, 2011)
    The relationship between the courts and democracy is at the center of this book.
  • Building Coalitions out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law

    Schleicher, David (J. Legal Analysis, 2020)
    Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under aTDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed to sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the past fifty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development. Instead, they serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure. But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool. By giving valuable development rights to some popular or otherwise politically influential owners of regulated property, a city can build a coalition for re-zonings that might otherwise be politically impossible. The effect of TDRs on politics can be positive to the extent that TDRs strengthen constituencies or land use goals that local politics systematically undercounts, as we show through an analysis of New York City’s Special District Transfer TDR program. In particular, TDRs could help break Not InMyBack Yard opposition to new housing by building a competing pro-growth coalition. More generally, using TDRs as an example, the Article shows how land use law is the creator as well as creature of local politics. Existing property law helps cement antidevelopment coalitions, but savvy leaders could use moments in power to create stable pro-growth coalitions by enacting new laws that help mobilize new pro-growth constituencies. Understanding these “constituency effects” of land use law allows policymakers to redesign entitlements like TDRs to produce a healthier land use policies.
  • Thinking about the Commons.

    Rose, Carol (International Journal of the Commons, 2020)
    This article explores current developments in theoretical thinking about the commons. It keys off contemporary reconsiderations of Garret Hardin’s “Tragedy of the Commons” and Elinor Ostrom’s response to Hardin in Governing the Commons and later work. Hardin’s idea of a “tragedy” has received much criticism, especially from Ostrom herself; but Ostrom’s own work has also raised some questions in more recent commons literature. The key issue that emerges from this reconsideration revolves around the understanding of commons on the one hand as limited common regimes, central to Ostrom’s work, or on the other hand as open access, as espoused by more recent advocates of widespread access to information and communications networks.
  • Mill, acerca de la libertad de expresión.

    Fiss, Owen (Revista del Centro de Estudios Constitucionales (the Law Journal of the Mexican Supreme Court), 2020)
    En este ensayo el profesor Owen Fiss hace una revision critica de la obra de John Stuart Mill: Sobre la libertad, que presenta una defensa robusta de la libertad individual con base en el reconocimiento de la pluralidad de la condicion humana. De acuerdo con el profesor Fiss, Mill busc  expandir la capacidad de cada individuo de crear una vida distintiva para s  mismo. A lo largo del texto, el profesor Fiss presenta los componentes centrales de la teor a desarrollada por Mill y los discute en el contexto de diferentes casos de la vida social y pol tica estadounidense. Esta discusion hace patente que Mill entendi la libertad de expresion como parte de un proceso de autoexaminacion que permite a las personas cuestionar las convenciones sociales y postulados  ticos dominantes, y expresar libremente su individualidad. In this essay Professor Owen Fiss makes a critical review of John Stuart Mill’s On Liberty, which presents a robust defense of individual liberty based on the recognition of the plurality of the human condition. According to Professor Fiss, Mill sought to expand each individual's ability to create a distinctive life for himself. Throughout the text, Professor Fiss presents the central components of the theory developed by Mill and discusses them in the context of different cases of American social and political life. This discussion makes it clear that Mill understood freedom of expression as part of a process of self-examination that allows people to question dominant social conventions and ethical postulates, and freely express their individuality.
  • Decisional Humility and the Marginally Represented Patient.

    Fins, Joseph (American Journal of Bioethics, 2020)
    There was a cartoon circulating during the national debate about Terri Schiavo (Davies for the Journal News 2003). A couple is seated in a lawyer’s office with their attorney seated behind a desk. On the wall next to a diploma is a sign advertising living wills. The caption from one of the clients is “…& in the event that either of us is being kept alive by artificial means, we don’t want Jeb Bush to get involved.” The couple clearly do not want the state or bureaucrats stepping in and imposing their judgment in this private realm when they have lost decisional capacity. And yet that seems to be the default position offered by Dr. Berger (2020) in his argument about what he terms representedness. As we see the argument, he wants to deny non-intimate surrogates, family members of standing the opportunity to engage in surrogate decision making and seemingly substitute a cadre of well-meaning, well-intended bureaucrats. Citing scholarly papers, many of which date to the 1980s and 90’s during the heyday of bioethics scholarship on surrogate decision making and advance directive literature, Berger places his faith in the ethics committee, chaplains, and social workers over family members who have become distanced from the patient. Clearly, there is a role for clinical ethicists to step into the fray when the patient is truly isolated and incapacitated, that is when he/she has no relatives or friends to represent them. But the same cannot be said when there are available surrogates. Does Berger really think we—the professional class—is better positioned for this role than family members, even when they have lost contact from the patient? Berger offers a vignette of a nephew who hasn’t seen his uncle for six years. In his formulation, he opts for salvation from a bioethical bureaucracy. We find this troubling. On the basis of a very thin narrative reed—on a hypothetical which virtually has no content whatsoever—the nephew is excluded. How do we know that this is justified, that he should be excised from the decision-making process? The story, as told is incomplete, more a parable than a case report (Fins 1998). Maybe the nephew was close to the patient as a child. Maybe the patient was a favorite uncle long ago. Or he might have been especially close to the nephew’s parent.
  • Psychological and Political Contributors to Criminal Culpability: Reply to Brink, Howard and Morse

    Yaffe, Gideon (Criminal Law & Philosophy, 2020)
    This is a reply to David Brink, Jeff Howard and Stephen Morse’s commentaries on my book, The Age of Culpability.
  • Punishing Non-Citizens.

    Yaffe, Gideon (Criminal Law & Philosophy, 2020)
    This paper considers the question of why the non-citizenship of offenders poses an obstacle to their criminal punishment. Several proposals are rejected, including Antony Duff’s proposal. It is proposed, instead, that governments are not authorized to punish any offender who cannot be attributed with the norm he violates. The government cannot attribute the norm that a non-citizen violates to him, if the noncitizen can raise in his favor the fact that he has no say over the law. Under certain circumstances, such as when they are visiting, non-citizens cannot raise this point, and so can be attributed with the norms they violate.
  • The Norm Shift Theory of Punishment.

    Yaffe, Gideon (Ethics, 2022)
    The philosophy of punishment’s focus on the question of justification has left the question of definition neglected. This article explains why there is a need for necessary and sufficient conditions for punishment and offers a new account. Under the theory proposed, to inflict a punishment is to make fewer things permissible for another to do. Since not every such restriction is punishment, an account is offered of the additional conditions needing to be met. One implication of the resulting theory is that some prominent cases in which the question of definition needed to be answered were wrongly decided.
  • The Partisan Transformation of American Public Health Law, 1918 to 2020.

    Witt, John (American Journal of Public Health, 2021)
    In “Politics, Pushback, and Pandemics: Challenges to Public Health Orders in the 1918 Influenza Pandemic” (p. 416), Navarro and Markel clear away an influential but incorrect impression about epidemic policy in US history. Figures like Associate Justice Samuel Alito of the US Supreme Court have asserted that the pandemic regulations of 2020 and 2021 are like nothing the country has seen before. Navarro and Markel, however, identify powerful continuities between state governments’ efforts to contain infection today and such efforts in 1918. The authors document, moreover, parallel cultures of protest a century ago and today against mask mandates, business closures, and school closures. The article particularly focuses on a distinctive new element in our 21st-century pandemic: the rise of novel partisan dimensions in the opposition to regulatory interventions. Navarro and Markel, however, mostly omit a vital new part of the story that supports and extends their basic argument. In the 21st-century epidemic, the United States is witnessing almost entirely unprecedented partisan pushback against public health measures by the courts. The partisan transformation of the courts is indispensable for anyone aiming to understand the similarities and differences between 1918 and 2020. The influenza pandemic of 1918 produced an outpouring of regulations designed to slow the spread of infection—and protest followed. Crowds inveighed against business closures. Local politicians spluttered against costly closure orders. Lawsuits followed, as they have today. But there is a crucial difference between the lawsuits of 1918 and those of 2020. A century ago, such challengers sued to force officials to carry out their authority appropriately. Today, legal challengers sue to assert that officials have no authority at all. Plaintiffs in the courts during the 1918 influenza contended that regulations were unfair, that they violated public health law, or that they otherwise exceeded the authority of the actor making the regulation. Sometimes they won. The Supreme Court of New Jersey set aside the conviction of a saloonkeeper in Paterson on the ground that the violation charged was not actually a violation of the relevant statute against public nuisances (Board of Health v. Clayton, 106 A. 813, N.J., 1919). Such victories sent public health officials back to the drawing board to come up with regulatory interventions anew. But mostly courts rebuffed such challenges (e.g., Globe School Dist. No. 1 v. Board of Health, 179, Ariz., 1919, p. 55). Courts were loath to override public health measures when their own expertise was lacking. As the Supreme Court of Kansas put it in 1919, it was “indispensable to preservation of the public health that some administrative officer or board should be clothed with authority to make adequate rules which have the force of law” (Ex Parte McGee, 185, Kan., 1919, p. 14).
  • The Historical Logics of Work Accident Law: Nate Holdren, Injury Impoverished: Workplace Accidents, Capitalism, and the Law in the Progressive Era.

    Witt, John (American Journal of Legal History, 2020)
    If reading books like Nate Holdren’s new Injury Impoverished is what happens to mid-career scholars, then I’m all for aging. Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. He has a live mind, which is animated by his ambitious analytic project to make sense of the law governing the risk of bodily injury for those in the labor market around the turn of the twentieth century. According to Holdren, work accidents were (and are) at their core a form of labor exploitation that reveals the injustices of capitalist labor markets. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating the mass violence of labor exploitation. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them.1 But Holdren’s analysis also raises many questions. Holdren identifies new forms of power in the law of work accidents – but he attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way tort law actually worked. He calls for impossibly demanding forms of justice from the law, including forms of personal recognition that are beyond the capacity of human systems to achieve. He misses the ways in which workers coopted new forms of accident law and turned them to their own interests. And his single-minded Marxian focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work accidents. None of this is to gainsay the significance of Holdren’s contributions, which are many and which demand attention in the literature. The analytic ambition and the successes of the book make it a work warranting serious engagement. In what follows I describe the scholarly context for Holdren’s intervention and set out the structure of his book’s important arguments. I then elaborate what I see as the limits of those arguments. I end with a note on the personal dimensions of the book for its author and on where the literature should go from here. Holdren is a work accident victim himself. The engine of his own experience propels the book forward. Its energy may press the field forward, too.
  • Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board.

    Witt, John (Yale Journal of Law & the Humanities, 2021)
    In 2019, Megan Ming Francis published a path-breaking article challenging the conventional wisdom in the field on a core piece of civil rights history: the role of a philanthropic foundation called the American Fund for Public Service, also known as the Garland Fund, in working alongside the NAACP to produce the organization's famous litigation campaign leading to Brown v. Board of Education. Starting in the late 1920s and early 1930s, education came to occupy a central place in the NAACP's agenda, and education desegregation became the focus of its efforts to break the back ofJim Crow. In Francis'sp rovocative account, the predominantly white Garland Fund captured the agenda of the civil rights organization through its financial influence, shifting the organization's central focus from racial violence toward education equality. An organization that had been focused on protecting Black lives from white violence reoriented its attention to a new campaign, which siphoned off resources from other projects, such as workers' economic rights and Black labor concerns. In this exchange, Francis and legal historian John Fabian Witt debate exactly who captured whom in the relationship between the NAACP and the Garland Fund. Their exchange engages method and substance in the history of civil rights. Among other things, Witt contends that the NAACP's leadership also subtly coopted the Garland Fund's resources and turned them toward the civil rights organization's preexisting objectives rather than vice versa. In Witt's account, the NAACP figured out how to advance its agenda through the Garland Fund, and the efforts of the two organizations became co-joined. The Francis-Witt debate has important implications for our understanding of the paths taken and not taken during the civil rights movement, how social mobilization came to focus on formal legal doctrine rather than concrete social or political ends, and whether the law can truly be turned against systems of oppression. Whichever account is correct, the aftereffects of the NAACP-Garland Fund relationship still reverberate today. The exchange proceeds with an opening statement by Francis, and reply by Witt, and a surreply by Francis, and a closing note from Witt.
  • Scrambling the New Sanitationist Synthesis: Civil Liberties and Public Health in the Age of COVID-19.

    Witt, John (University of Chicago Legal Forum, 2021)
    For much of the nineteenth and twentieth centuries, the model of public health law was what Professor Wendy Parmet has called the "tragic view" of the law of public health.1 On this account, public health and civil liberties inevitably conflict. Legislators and judges need to make hard choices balancing one against the other. Sacrifices of important values are inevitable. The leading case of Jacobson v. Massachusetts,2 decided in 1905, serves as the paradigmatic expression of the tragic view. In Jacobson, the Supreme Court upheld by a vote of seven-to-two a Massachusetts mandatory vaccination program for smallpox. Individual rights gave way to collective imperatives under the heading of the police power. Salus populi suprema lex, as the old Ciceronian dictum had it. The health of the people was supreme. At the end of the twentieth century, public health law made a new turn. In a novel departure, a generation of lawyers and public health advocates began to argue that public health and civil liberties were not in conflict but aligned. Beginning in the 1980s, and inspired by the imperatives of the fight against HIV/AIDS, the new model asserted that nurturing the trust and eliciting the cooperation of vulnerable populations was crucial to the protection of public health and far more effective than harsh mandates and quarantines. Progressive public health leaders asserted that a synthesis of civil liberties and public health would not only protect rights, but that it was also crucial to the successful management of epidemics. 6 Protecting people's rights would enable the protection of public health; restricting those rights would only drive the sick and the vulnerable underground and make epidemic management more difficult. Public health and individual rights, it seemed, might run together because protecting rights would prompt widespread confidence in and cooperation with public health measures.
  • Building Popular Legitimacy with Reconciliatory Gestures and Participation: A Community-Level Model of Authority

    Tyler, Tom; Meares, Tracey (Regulation and Governance, 2020)
    The research tests a model of reconciliation between authorities and communities. It expands past models of legitimacy to an intergroup dynamic model by identifying two community-level actions that legal authorities can undertake to build their popular legitimacy and promote cooperation. One type of action is a community-level reconciliatory gesture: an initiative that authorities make to communities to build trust by recognizing and trying to move beyond prior negative experiences. A second involves community-level opportunities for participating in decisions about how to manage social order. The results of this study with residents from a large metropolitan city suggest that both types of community-level gestures can make distinct contributions to building trust in and cooperation with the police.
  • Decolonization: Treaties, Resource Use, and Environmental Conservation

    Torres, Gerald (University of Colorado Law Review, 2020)
    Since the 1970s, Indian policy has been guided by a federal commitment to tribal self-governance. The exact contours of this policy differ, but at a minimum, it is supposed to guide the approach of the federal government in its relations to tribes. Where state and private interests collide with tribal interests, the role of the federal government is often as a mediator of competing claims. In a sensitive and insightful piece, Professor Charles Wilkinson illustrates the way collaboration is supposed to work. He describes the process through which the tribes and the federal government negotiated the creation of what he calls "the first native national monument."I That description reflects what Professor Wilkinson believes is a turning point in the relationship among tribes, states, federal agencies, and private stakeholders in untangling the historically constituted web of interests that bedevil a fair adjustment of interests in land and resource management. U.S. colonial expansion into Indian Country meant that non-native expectations had priority in disputes over policy and law. The western movement was accompanied by presumptions about rightful claims to land and resources that are attendant to the American expression of settler colonialism. Professor Wilkinson illustrates that the physical landscape and the legal relations in which that landscape is embedded require careful attention to the mutual dependence of sacred relations and the more secularly denominated ecosystemic services. Co-management agreements can create a legal space where the various competing interests can be accommodated in a way that reduces the cost of conflict. The congeries of legal sources available for directing any specific action complicates using law as a guide for refraining relations between the tribes and their prior antagonists. The sources of law range from treaties to foundational statutes like the Northwest Ordinance or the Non-Intercourse Act.3 As illustrated by Professor Wilkinson, the Antiquities Act4 provided the legal foundation for the creation of Bears Ears National Monument, but it was the cooperation of the tribes, who shared a long and deep connection to the area, that proved essential for providing the substance necessary for the shaping of the monument. These tribes included the Hopi, Zuni, Ute Mountain Ute, Uintah and Ouray Mountain Ute, and the Navajo nations, who together created the Inter-Tribal Coalition, which provided early leadership during the creation of the monument. The shaping was as much conceptual as physical. By combining the traditional knowledge of the tribes with federal land management practices, the creation of the monument demonstrated how federal land and resource management in the West ought to proceed.
  • Weinstein on Sentencing (2021)

    Stith, Kate (Federal Sentencing Reporter, 2021)
    Has Judge Weinstein, over the course of decades, fundamentally changed the contours of federal law and practice in criminal sentencing? I think he would say “not enough.” But that’s not for lack of trying. In addition to many law review articles and speeches,1 he has written scores of sentencing opinions that exceed the standards of the most exacting academic—thorough, analytically impregnable, and heavily footnoted—attempting to get the Second Circuit, the Supreme Court, and Congress to remake sentencing law. He has not waged these battles alone—but more than any judge I can think of, he has waged them continually and on every front, with powerful intelligence and humanity. In these ways, he is one of the creators of today’s new sentencing landscape, in which judges are allowed to consider not just what the Sentencing Commission proclaims, but what justice requires. Never content to rest on his laurels, Judge Weinstein has, in the years since United States v. Booker2 and its progeny, turned his sights primarily on the Federal Sentencing Guidelines’ (“guidelines”) tough cousin, mandatory minimums. And, never shy about stirring up a little controversy, he’s taken on sentencing in terrorism and child pornography cases.
  • Sanctuary Cities and the Power of the Purse: An Executive Dole Test

    Spencer, Douglas (Iowa Law Review, 2021)
    A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts. The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to add conditions on federal grants, two important questions remain unresolved: (z) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion? Recent threats by President Trump to withhold funding for elections, education, and public parks amplify the need for clarity on these questions. In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds. Finally, the recent appointment of Justices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus poses a ripe opportunity for skeptics of the administrative state to rein in the regulatory state while also narrowing the scope of the Spending Clause more generally.
  • Innovation Incentives in a Pandemic

    Scott Morton, Fiona (Journal of Antitrust Enforcement, 2020)
    The current pandemic has exposed the skewed nature of innovation incentives in American healthcare. Consider the case of a company that makes a medical device like a ventilator. The demands of its customers shape its incentives to innovate. The end consumers are patients who do not themselves pay for the device, whether they are insured or not (an uninsured patient is likely to receive free care or a large discount). The device maker will not increase sales to these customers by choosing a lower price. Purchase decision-makers are often physicians who are unaware of the price of the device (and regulations in the USA prevent the salesperson from telling the doctor the price, as that would be an inappropriate inducement). What will get the physician’s attention—and can be easily marketed—is additional quality or features of the device. These will also appeal to technicians or skilled nurses who work with the device; they are not responsible for budgets either. The fancy features might involve more convenience in terms of connecting inputs or positioning the patient, a better screen for observing measurements and settings, a greater choice of settings for pressure, oxygen, drug levels, and so forth. The hospital purchasing department may have some input into which device is chosen—and advocate for cost-effective choices—but at the end of the day, if a physician is convinced a device will provide better care, that device is likely to be chosen regardless of price. Therefore, the device manufacturer is incentivized to invent it. These incremental quality improvements to the device may hold value for patients and caregivers, but the US medical purchasing process often has so many decision makers spending other people’s money that there is no reason to imagine that price is tightly connected to value. A consumer spending her own money on a product she consumes herself, for example, a loaf of bread, sees the nicer bag around the bread and can determine if that is worth a 10 percent price increase. A physician in a hospital is likely to ask if the new feature is an improvement or not, and then want to purchase the device if it has an improvement. Price may not part of that decision. The physician likely does not know how much the device costs, is not spending her own money, and understands that she is not spending her insured patients’ money either. Therefore, the manufacturer markets the improved features to physicians, as do its competitors, and competition takes place almost entirely on the basis of quality. This leads to expensive machines that have high levels of quality without regard for whether the value of those last units of quality is high for everyone, for a minority of patients, or for no patients. In the absence of disruptive technology, a better device requires higher costs. In the world described above, the device maker only undertakes one kind of innovation: an improved machine at a higher cost. Over time, ventilators go from $7000 per machine to $10,000, to $25,000. Suppose a ‘standard’ ventilator has a price of $25,000. A manufacturer with an idea for how to make a $10,000 ventilator that is a very little bit worse than the $25,000 ventilator will have no customers. What physician would recommend purchasing the cheaper machine without all the settings and options of the best machine? Consider how different that is from a more functional market such as automobiles. Suppose a new auto maker found a way to make a BMW equivalent car but without the leather seats at half the price. There would likely be a huge demand for that vehicle.
  • Addictive Technology and Its Implications for Antitrust Enforcement

    Scott Morton, Fiona (North Carolina Law Review, 2022)
    The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will increase the likelihood that some firms will vie to offer higher-quality and safer platforms. For this reason, evaluating harm to innovation (especially safety innovation) and product variety may be particularly important in social media merger and conduct cases. Another critical element to antitrust enforcement in this space is a correct accounting of social media’s addictive qualities. Standard antitrust analysis seeks to prohibit conduct that harms consumer welfare. Economists have taught the antitrust bar that the output of a product or service is a reliable proxy for consumer welfare. However, output and welfare do not have this relationship when a product is addictive. Indeed, in social media markets, increased output is often harmful. We argue that antitrust analysis must reject the output proxy and return to a focus on consumer welfare itself in cases involving addictive social media platforms. In particular, courts should reject defenses that rely only on gross output measures without evidence that any alleged increases in output actually benefit consumers.
  • Reading Regents and the Political Significance of Law

    Rodriguez, Cristina (2020 Supreme Court Review, 2021)
    When the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition —lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States. Initiated in 2012, the Deferred Action for Childhood Arrivals pro-gram had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible. The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential elec-tion less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.
  • The Supreme Court 2020 Term Foreword: Regime Change

    Rodriguez, Cristina (Harvard Law Review, 2021)
    On the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States.1 In 2010, Congress had enacted the Fair Sentencing Act and reduced the by-then notorious i00:i sentencing disparity between crack and powder cocaine offenses to i8:i. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity.

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