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Full-Text Articles in Law
The Inherent Structure Of Free Speech Law, Joshua P. Davis, Joshua D. Rosenberg
The Inherent Structure Of Free Speech Law, Joshua P. Davis, Joshua D. Rosenberg
Joshua P. Davis
To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech, or restricts expression in managing an internal governmental function; …
The Inherent Structure Of Free Speech Law, Joshua Davis, Joshua
The Inherent Structure Of Free Speech Law, Joshua Davis, Joshua
Joshua P. Davis
To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech, or restricts expression in managing an internal governmental function; …
Of Vulnerable Monopolists?: Questionable Innovation In The Standard For Class Certification In Antitrust Cases, Joshua P. Davis, Eric L. Cramer
Of Vulnerable Monopolists?: Questionable Innovation In The Standard For Class Certification In Antitrust Cases, Joshua P. Davis, Eric L. Cramer
Joshua P. Davis
Some courts appear to have begun to revise the standard for granting class certification, including in antitrust cases. The new standard, if there is one, may empower courts to find facts relevant to the merits in a way that historically they have not been permitted to do. If courts are ratcheting up the standard at class certification by forcing plaintiffs to make a showing on the merits, then it seems an unfortunate development for various reasons. First, the rationale for the change is unsubstantiated and implausible. Neither theory nor evidence supports the claim that corporations settle meritless class actions with …
Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Joshua P. Davis
Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Joshua P. Davis
Joshua P. Davis
The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts. Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. Our article's conclusion that the …
Antitrust, Class Certification, And The Politics Of Procedure, Joshua P. Davis, Eric L. Cramer
Antitrust, Class Certification, And The Politics Of Procedure, Joshua P. Davis, Eric L. Cramer
Joshua P. Davis
This Article develops two arguments against a possible trend in federal appellate courts toward imposing a new, heightened standard for class certification in antitrust cases. Recent case law can be read to imply that trial judges may make findings of fact on the merits in deciding class certification, including about whether plaintiffs will be able to show with class-wide evidence that every class member was harmed by allegedly anticompetitive conduct. The first argument is that the potential new standard would require a showing at class certification on an issue—whether all class members were injured—that plaintiffs need not, and typically do …