Digital Commons Network^™

Introduction To The Symposium On Labor Market Power, Eric A. Posner

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No abstract provided.

Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

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Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …

Horizontal Collusion And Parallel Wage Setting In Labor Markets, Jonathan S. Masur, Eric A. Posner

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Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product-market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These and related …

Book Review: The “Common-Good” Manifesto, William Baude, Stephen E. Sachs

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In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others …

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

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The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

Spacs, Pipes, And Common Investors, Frank Fagan, Saul Levmore

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Special Purpose Acquisition Companies, or SPACs, have come to play a large role in bringing together small and large investors in the acquisition and expansion of private companies. A pessimistic version of this relatively recent alternative to conventional initial public offerings (IPOs), and other methods of investing in companies ready to expand, is that clever sharks take advantage of overly optimistic and ill-informed small investors. This Article offers a very different view. It shows that common investors need someone to locate good investment opportunities, and then they often benefit if another well-informed party can credibly vouch for the entity that …

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua A. Macey

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Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal- ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Residents Against Housing: A Response To Professor Infranca’S ‘Differentiating Exclusionary Tendencies’, Lee Anne Fennell

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Incumbent residents routinely oppose residential development.¹ Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.² Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.³ Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.⁴

Resident opposition …

The Long Hand Of Anti-Corruption: Israeli Judicial Reform In Comparative Perspective, Tom Ginsburg

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There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

Fractured Majorities And Their Reasons, Saul Levmore

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The wisdom of crowds correctly exalts majority decision-making on appellate courts as well as on many other settings, including hospitals and committees with multiple doctors or board members. But the same confidence in majorities should be applied to the reasons that are attached to a vote, or opinion, and then to a majority’s rejection of a member’s reasoning. This Article introduces the problems confronted when examining the reasons for opinions, and then the reasons beneath those reasons. It shows that majority decision-making is not as reliable as it first seems and, indeed, that a single decision-maker may at times be …

Coordinated Rulemaking And Cooperative Federalism’S Administrative Law, Bridget A. Fahey

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“Cooperative federalism” is not just a model of federalism; it is a model of administration. From health care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer.

The Article begins to elaborate cooperative federalism’s unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show …

The Promise & Perils Of Open Finance, Dan Awrey, Joshua Macey

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We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According to its proponents, this competition will yield a radical restructuring of the financial services industry, offering more and better choices for consumers looking to make fast payments, borrow money, invest their savings, manage household budgets, and compare financial products and services. The promise of Open …

Strategic Subdelegation, Brian D. Feinstein, Jennifer Nou

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Appointed leaders of administrative agencies routinely record subdelegations of governmental authority to civil servants. That appointees willingly cede authority in this way presents a puzzle, at least at first glance: Why do these appointees assign their power to civil servants insulated by merit protection laws, that is, to employees over whom they have limited control? This article develops and tests a theory to explain this behavior. Using original data on appointee-to-civil servant delegations and a measure of the ideological distance between these two groups of actors, we show that appointees are more willing to vest power in civil servants when …

The (Mis)Uses Of The S&P 500, Adriana Z. Robertson

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No abstract provided.

Severability First Principles, William Baude

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The United States Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas, and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This Article proposes a return to first principles. Severability is a question of what …