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Tom Campbell

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Executive Action And Nonaction, Tom Campbell Dec 2016

Executive Action And Nonaction, Tom Campbell

Tom Campbell

Action by the executive can be challenged by a party with standing, and there is usually no shortage of such parties. The executive’s failure to act, however, is much more difficult to submit to judicial scrutiny. I propose that standards for reviewing such nonaction are available under precedent of the Administrative Procedure Act, and under severability analysis. That is, a reviewing court can determine whether the executive’s failure to enforce part of a law leaves the rest of the law to operate meaningfully as Congress intended (akin to severability analysis), and APA precedent can guide courts to determine whether nonaction …

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The E-Books Conspiracy: Crossing The Line Between Applying And Creating Law, Tom Campbell Dec 2014

The E-Books Conspiracy: Crossing The Line Between Applying And Creating Law, Tom Campbell

Tom Campbell

This article responds to John Kirkwood’s Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy. Professor Kirkwood argued that in a monopsonistic market (i.e., one where there exists one powerful buyer and many less powerful sellers), or a market in which a buyer has significantly more power than the sellers, collusion on the part of the sellers might be justified, and ought to be a defense to antitrust claims, under certain conditions. This article summarizes Kirkwood’s proposed requirements for invoking this defense and argues that they are overly prescriptive, failing to allow certain instances of beneficial collusion, imposing …

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