Law Commons^™

Product Life Cycle Theory And The Maturation Of The Internet, Christopher S. Yoo

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Much of the recent debate over Internet policy has focused on the permissibility of business practices that are becoming increasingly common, such as new forms of network management, prioritization, pricing, and strategic partnerships. This Essay analyzes these developments through the lens of the management literature on the product life cycle, dominant designs, technological trajectories and design hierarchies, and the role of complementary assets in determining industry structure. This analysis suggests that many of these business practices may represent nothing more than a reflection of how the nature of competition changes as industries mature. This in turn suggests that network neutrality …

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

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The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that courts …

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

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Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …

Canaries In The Coal Mine: The Tactical Use Of The National Labor Relations Act To Aid In The Protection Of Non-Union Workers Exposed To Pollutants, Michael C. Duff

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Canaries were used in times past to alert miners to the presence of dangerous gases in a mine. A canary would die, and the miners would thereby become aware of deadly, but sometimes odorless, gases. Just as canaries have alerted miners to the presence of dangerous gases in mines, workers exposed to dangerous pollutants and conditions in workplaces may function as societal canaries warning the broader public of environmental dangers; but hopefully without having to die in the process. To perform this role, the workers must live to work (and protest) another day. Section 7 of the National Labor Relations …

Office Politics: Hiring And Firing Government Lawyers, Gilda R. Daniels

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In September of 2009, the U.S. Department of Justice (DOJ) announced that it would not prosecute former DOJ Civil Rights Division official Bradley Schlozman for alleged false statements made during his congressional testimony about personnel actions at DOJ. As many government lawyers will remember, a July 2, 2008, report of the DOJ Office of Professional Responsibility and Office of the Inspector General (hereinafter, the IG's report) found that Schlozman had violated the Civil Service Reform Act when he "considered political and ideological affiliations in hiring career attorneys and other personnel actions affecting career attorneys in the Civil Rights Division." Often …

The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp

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The FTC has explicit antitrust authority to enforce the Clayton Act, although not the Sherman Act. More than a half century ago, however, the Supreme Court held that the FTC Act’s prohibition of “unfair methods of competition” reaches everything the Sherman Act reaches and also a “penumbra” of practices that are not technical Sherman Act violations. That view, which had fallen into disuse in recent decades, is now being revived.

This essay defends a limited version of that “penumbra” view and suggests several applications. First, while both Sherman Act provisions are open ended in their coverage, they have limitations. Section …

When Selling Your Personal Name Mark Extends To Selling Your Soul, Yvette Joy Liebesman

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Identifying one’s business with one’s personal name has long been a practice in the United States. As Personal Name Marks have become increasingly commodified, however, bargaining and deal-making has led more and more to transfers of rights which had previously been considered to be closely tied to the individual as a private person. This article posits that freedom of contract doctrine should not allow the complete alienation of all aspects of one’s name, but rather there should be limitations on how far parties may bargain, so that the purchaser cannot acquire the right to control the seller’s private activities. This …

Regulatory Adjudication, Marcia L. Mccormick

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Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the …

Race, Sex, And Rulemaking: Administrative Constitutionalism And The Workplace, 1960 To The Present, Sophia Z. Lee

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This Article uses the history of equal employment rulemaking at the Federal Communications Commission (FCC) and the Federal Power Commission (FPC) to document and analyze, for the first time, how administrative agencies interpret the Constitution. Although it is widely recognized that administrators must implement policy with an eye on the Constitution, neither constitutional nor administrative law scholarship has examined how administrators approach constitutional interpretation. Indeed, there is limited understanding of agencies’ core task of interpreting statutes, let alone of their constitutional practice. During the 1960s and 1970s, officials at the FCC relied on a strikingly broad and affirmative interpretation of …