Cornell Law Review最新文献

{"title":"Economic Authority and the Limits of Expertise in Antitrust Cases","authors":"J. Lopatka, W. H. Page","doi":"10.2139/SSRN.507542","DOIUrl":"https://doi.org/10.2139/SSRN.507542","url":null,"abstract":"Daubert v. Merrell Dow has deeply affected how courts evaluate testimony by putative experts of all kinds in a variety of legal contexts. But the influence of Daubert on the role of expert economic testimony in antitrust cases has been less clear. Several commentators have noted that, although Daubert motions do occur regularly in antitrust cases, courts also continue to scrutinize the legal sufficiency of expert testimony without reference to Daubert in motions for summary judgment or for judgment as a matter of law. In this article, we argue that, whatever the doctrinal rubric or procedural context in which courts examine economic testimony in antitrust cases, their inquiry is ultimately guided by economic authority, authoritative economic knowledge that courts have adopted from the scholarly literature. In interpreting and applying the antitrust laws, courts acquire their most important economic ideas by a pragmatic process that is independent of the strictures that Daubert places on the receipt of economic testimony. Once acquired, economic authority determines the qualifications trial experts must have, the issues on which they can testify, the models on which they can rely, and the methodologies they must use. In the past thirty years, the most important source of economic authority has been the Chicago School's models of the practices that most concern antitrust: cartels, tying, predatory pricing, resale price maintenance, and so forth. The Supreme Court has relied on these models not, for the most part, to adopt rules of per se legality, as some Chicagoans have suggested, but in less sweeping ways, such as limiting or abandoning rules of per se illegality, defining antitrust injury and standing, and determining the sufficiency of evidence. In some notable examples, of course, the Court has declined to follow Chicago models in favor of others. In all of these contexts, however, economic authority frames and defines the role of expert testimony. In the main part of the article, we examine how economic authority has defined the role of expertise in four critical contexts: predatory pricing; market definition and market power; the characterization and proof of price fixing; and the definition and proof of antitrust injury. In the final section we consider the legitimacy of the deference to economic authority over expertise in the formation of antitrust law, and suggest how our account of the role of economic authority affects the continuing confrontation between Chicago and Post-Chicago economics.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"90 1","pages":"617"},"PeriodicalIF":2.5,"publicationDate":"2004-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67753758","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Against Tribal Fungibility","authors":"S. Prakash","doi":"10.2139/SSRN.2857480","DOIUrl":"https://doi.org/10.2139/SSRN.2857480","url":null,"abstract":"The federal courts maintain that the Constitution grants the federal government a plenary power over all Indian tribes. In response, some Indian law scholars claim that the federal government does not have plenary power over any Indian tribe. Both parties to this dispute fall into the unfortunate trap of treating the Indian tribes as if they are all similarly situated. In fact, there are reasons to believe that the federal government's power over individual Indian tribes varies from tribe to tribe. When an Indian tribe is located on federal property or within a federal territory, the federal government enjoys something like a plenary power by virtue of the Territory/Property Clause. Likewise, some Indian tribes might have ceded to the federal government a plenary power via treaty or agreement. When a tribe does not fit within either of these two categories, the federal government does not have plenary power over it. The misguided tendency to regard the tribes as fungible has obscured the possibility of relevant differences that might yield variable federal power. Once we stop treating the tribes as if they were fungible, we can begin to see more clearly how and why federal authority might vary across tribes.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"1069"},"PeriodicalIF":2.5,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68394929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Railroad Receiverships and Modern Bankruptcy Theory","authors":"S. Lubben","doi":"10.2139/SSRN.478981","DOIUrl":"https://doi.org/10.2139/SSRN.478981","url":null,"abstract":"Some of the most important - and most interesting - recent work in the area of corporate and sovereign bankruptcy is rooted in the late 1800s and early 1900s, the golden age of the railroad receivership. Yet we know very little about railroad or equity receiverships beyond how they worked in theory. This paper remedies the existing gap in the literature by looking at a sample comprised of the largest railroads in the United States at the turn of the twentieth century, approximately half of which went through a receivership between 1890 and this country's entry into World War I. By examining the fate of these two groups of railroads after the World War, I am able to shed some light on the long-term effectiveness of receiverships. The results are striking. The data shows that having undergone a receivership before World War I made a railroad more than two and a half times (i.e., 150%) more likely to undergo another receivership or bankruptcy after the War. The average railroad that reorganized under a receivership subsequently failed at a rate more than twice as high as railroads that had never gone through a receivership and almost three times as high as modern chapter 11 debtors. And the data shows that Morgan's involvement with a road had little effect on the road's ability to avoid financial distress.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"1420"},"PeriodicalIF":2.5,"publicationDate":"2003-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67746017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Federal Common Law in an Age of Treaties","authors":"Van Alstine, P. Michael","doi":"10.2139/SSRN.473741","DOIUrl":"https://doi.org/10.2139/SSRN.473741","url":null,"abstract":"In this article Professor Van Alstine explores the interaction between the limitations on the doctrine of federal common law and the power of federal courts to interpret the law within the scope of treaties. The article first reviews the constitutional foundation for the operation of treaties as directly applicable (\"self-executing\") federal law. It then explains that, notwithstanding the Erie doctrine, federal courts may obtain lawmaking powers from either a delegation by Congress or in certain areas of \"uniquely federal interest.\" Professor Van Alstine then argues that the judicial relationship with self-executing treaty law in principle proceeds from the same source of authority as that for Article I legislation. No less than in the statutory context, therefore, a deliberate and circumscribed delegation of lawmaking powers by treaty does not run afoul of federalism or separation of powers limitations on federal common law. Even beyond such an express authorization, the special constitutional nature of treaties also profoundly affects the analysis of the lawmaking powers of federal courts in this context. As a formal expression both of national foreign affairs policy and of the international law obligations of the United States, treaty law operates at the intersection of the two most prominent fields of \"uniquely federal interest.\" As a result, Professor Van Alstine concludes that the decisive interests of national uniformity which arise in the context of formal treaty obligations - and which animate the two noted fields of established federal common law - mandate a different, and ultimately more accommodating, calculus for the interstitial lawmaking powers of federal courts within the scope of self-executing treaties.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"892"},"PeriodicalIF":2.5,"publicationDate":"2003-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67744717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The New Federalism, the Spending Power, and Federal Criminal Law","authors":"R. Garnett","doi":"10.2139/SSRN.428903","DOIUrl":"https://doi.org/10.2139/SSRN.428903","url":null,"abstract":"It is difficult in constitutional-law circles to avoid the observation that we are living through a \"revival\" of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly \"revolutionary\" Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I and may promote policy goals that might lie beyond the reach of its enumerated powers merely by attaching conditions to the money it spends. Thus, talk of \"revolution\" notwithstanding, the Spending Power continues to provide practically limitless opportunities for the national government to shape policy at the state and local levels of life and government. This Article considers whether and to what extent Congress may use its Spending Power - standing alone, or in conjunction with the Necessary and Proper, or \"Sweeping,\" Clause - to create, prosecute, and punish federal crimes. In particular, it examines the challenges to a particular federal anti-corruption statute, and concludes that, even if the Commerce Clause is understood to convey to Congress almost plenary regulatory authority, the power of the purse is not the power to police. That is, a generally applicable federal criminal statute cannot be regarded as a spending condition, and not even the Sweeping Clause is a license for \"hungry dog\" criminal jurisdiction. What's more, the expansion of federal criminal jurisdiction through spending is inconsistent with the structures explicitly created and reasonably implied by our Constitution, with the values these structures were designed to advance, and with the liberties they were intended to protect. The Article's doctrinal claims cohere well with leading themes in contemporary constitutional law. There are, for example, rich connections between the Article's arguments about conditional spending, the Sweeping Clause, and criminalization, on the one hand, and contemporary debates in First Amendment law relating to government speech, forum analysis, and expressive association, on the other. In addition, the understanding of the Spending Power defended in the Article serves not only as a complement to, but a crucial component of, the renewed emphasis on mediating institutions and civil society that has been provocatively identified by Professor John McGinnis as the enduring legacy of the Rehnquist Court. The Article closes with the suggestion that whatever \"formalism\" might be found lurking in its arguments has a worthy pedagogical function as it helps to instill, perhaps, what the \"settled disposition on the part of the people in favor of local diversity and prerogative\" and the \"disciplined love of liberty that transcends t","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"1"},"PeriodicalIF":2.5,"publicationDate":"2003-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.428903","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Takings, Regulations, and Natural Property Rights","authors":"Eric R. Claeys","doi":"10.2139/SSRN.373661","DOIUrl":"https://doi.org/10.2139/SSRN.373661","url":null,"abstract":"According to most legal history and takings scholarship, the whole notion of a \"regulatory taking\" was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that property \"regulations\" could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the regulation of natural property rights to generate a body of what modern lawyers would call a body of \"regulatory-takings\" law. In these decisions, a \"regulation\" was a positive law that secured to the owner her natural property rights. Such a regulation tried to order how different species of property were used in close quarters, for the purpose of facilitating the free use of property generally. If a law did not regulate consistent with principles of natural right, it constituted an \"invasion of right,\" and \"took\" some of the use rights to which owners were entitled as part of their \"private property\" for takings purposes. The Article has three main lessons for contemporary takings and property scholarship. First, regulatory-takings law does not need to be as incoherent as it is widely assumed to be. If modern federal and state regulatory-takings doctrines are messy now, it is not because regulatory-takings law is inherently messy. Rather, modern courts must not mind the messiness, most likely because they prefer another substantive theory of property over natural-right property theory. Second, this natural-right theory provides a useful counterpoint to most modern property law and scholarship, which tend to justify to property rights and regulation in terms of utilitarian principles. The nineteenth-century state cases, by contrast, show one way in which the law may ground property rights and regulation in terms of concepts of personhood and freedom. Finally, the natural-right distinction between \"regulations\" and \"invasions of right\" offers some evidence, though not dispositive evidence, as to what the federal Takings Clause may have meant when originally drafted and ratified.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"88 1","pages":"1549"},"PeriodicalIF":2.5,"publicationDate":"2003-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68632351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication","authors":"D. Driesen","doi":"10.2139/SSRN.428541","DOIUrl":"https://doi.org/10.2139/SSRN.428541","url":null,"abstract":"This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern doctrine of standing. Alexander Bickel's influential writing on the \"passive virtues\" views justiciability doctrines as an aid to wise decision making. Bickel emphasized that the law of standing would provide concrete information about the consequences of laws undergoing judicial review that would contribute to sounder more enduring judgments as to constitutionality. Analysis of the reasons that information regarding injury often has no influence upon the merits of many public law cases casts doubt on justiciability doctrines' capacity to aid wise decision-making. Courts need to adopt a new set of \"active virtues\", a set of practices governing the framing, consideration, and resolution of the merits of public law cases.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"808"},"PeriodicalIF":2.5,"publicationDate":"2003-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68761902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"What They Say at the End: Capital Victims' Families and the Press","authors":"Samuel R. Gross, Daniel J. Matheson","doi":"10.2139/SSRN.415081","DOIUrl":"https://doi.org/10.2139/SSRN.415081","url":null,"abstract":"News stories of executions now routinely include reports of statements by members of the victims' families. For this study we examined such reported statements for 138 executions in the United States, from 1999 through 2002. We also looked at a smaller set of reports of statements by family members of the victims after death-row defendants are exonerated and released; we found such reports in 34 of the 85 death-row exonerations from 1988 through mid-2002. Neither set of stories is anything like a representative sample of the reactions of the families of capital murder victims, and their content is distorted by the habits and biases of the media. Nonetheless, they provide an intriguing glimpse into the effects of capital punishment on some of those who are most directly affected by the underlying crimes. When a capital defendant is put to death, the most common reaction from the victim's family is relief that it happened, at last. Victims' relatives also frequently express satisfaction with the execution, sometimes in the impersonal terms of justice, sometimes as unabashed pleasure in revenge. They often complain about the long and tortuous route from sentence to execution, and many are particularly unhappy about the attention that is repeatedly focused on the defendants rather than the victims; some see the execution as an opportunity to redress that imbalance. Finally, many victims' relatives hope that at the point of death the killer will accept responsibility and apologize for his crimes, and that they will be able to forgive him. This does occasionally happen, but judging from these data it's uncommon; more often the relatives who hope for this conclusion are disappointed and hurt. In a disturbing number of cases - over 100 since 1973 - American defendants under sentence of death are exonerated and released. Judging from the stories we have found, most relatives of the victims refuse to accept this result and continue to believe that the exonerated defendants are guilty, sometimes in the face of overwhelming evidence. The relatives of the victims unambiguously accepted the innocence of the exonerated defendants in only 7 of the 34 capital exonerations in our study. These seven cases fall into two overlapping groups: cases in which the actual killer is identified (5 of 7), and cases in which the local police officers and prosecutors who investigated the crime now say that the defendant is innocent (5 of 7).","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"88 1","pages":"486"},"PeriodicalIF":2.5,"publicationDate":"2003-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68708457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication","authors":"R. Schapiro, William W. Buzbee","doi":"10.2139/SSRN.346481","DOIUrl":"https://doi.org/10.2139/SSRN.346481","url":null,"abstract":"Since 1995, the United States Supreme Court has applied a new form of rigorous judicial scrutiny in assessing the constitutional limits of the Commerce Clause, a provision that long has functioned as the central authorization of congressional power. As critics on and off the bench have noted, the Court has advanced its conception of federalism by requiring that the regulated activity itself be economic or commercial in nature. A crucial aspect of the Court's approach that has received less attention is the prior step of selecting the relevant activity for constitutional analysis. Legislation can be viewed from a variety of different perspectives, and the choice of vantage points can be critical in determining the requisite commercial nexus. In the wake of the New Deal, the Court upheld legislation if it had a commercial connection when viewed from any perspective. This Article argues that in a break from a half century of settled jurisprudence, the Court recently has insisted on selecting a single perspective as determinative. This approach, which we term \"unidimensional,\" relocates substantial discretion from Congress to the judiciary. Drawing on the insights of recent scholarship on statutory interpretation, we illuminate the flaws in the Court's unidimensional approach. Legislation implicates multiple motives, targets, beneficiaries, and effects. For the Court to pick out a single element as dispositive constitutes a groundless form of reductionism. Here, as in other aspects of its recent jurisprudence, the Court focuses on the common-law rights holder as the fulcrum of analysis. This framework tilts the doctrine against regulation, as it inevitably casts the state as a suspect interloper. Lower court cases evidence the confusion that the Court's narrow commercial activity analysis has generated. In place of this flawed, unidimensional approach, we offer a \"legislativist\" framework for Commerce Clause cases. Under the legislativist method, the text of the legislation guides the judicial identification of the relevant activities for purposes of Commerce Clause scrutiny. This approach retains meaningful judicial oversight, while avoiding the arbitrary usurpation of congressional authority inherent in the Court's current jurisprudence.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"88 1","pages":"1199"},"PeriodicalIF":2.5,"publicationDate":"2003-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.346481","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68596109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"It's Time to Make the Administrative Procedure Act Administrative","authors":"E. Rubin","doi":"10.2139/SSRN.412584","DOIUrl":"https://doi.org/10.2139/SSRN.412584","url":null,"abstract":"This Article argues that the Administrative Procedure Act needs to be rewritten because it was ill-conceived from its inception. Its central defect is that it fails to comprehend the essential character of the modern administrative state. Instead, the procedures it imposes on administrative action are based on pre-administrative models of governance, and particularly on the model of judicial implementation of law that administrative agencies were specifically intended to replace. This is true not only of the APA's requirements for adjudication, but also of its requirements for rulemaking. Worse still, the APA leaves the remainder of the administrative process, which it implicitly and inaccurately characterizes as informal adjudication, almost entirely unregulated. The recommendation is that the APA be redrafted in its entirety based on the standard, Weberian concept of bureaucratic governance. The most important feature of this concept is that administrative governance is organized around the principle of instrumental rationality. According to Weber, an action is instrumentally rational when it is based upon the actor's expectations about its consequences, that is, \"when the end, the means, and the secondary results are all rationally taken into account and weighed.\" Applied to administrative agencies, this means: first, that the statute should require that the agency must assess the goals that it defines for itself on the basis of their pragmatic consequences; and second, that the statute should require that the agency assess all other administrative actions, whether rulemaking, adjudication, or the manifold executive actions characterized as informal adjudication (targeting, advising, planning, deploying resources, etc.) on the basis of their ability to achieve goals specified by the agency or the agency's superior. In reviewing administrative action, courts should be guided by this principle. Supplementary principles, for both the agency and the court, can be derived from Weber's conception of the agency as an hierarchical, continuously operating organization with a defined jurisdiction staffed by full-time employees chosen on the basis of their credentials. Based on these ideas, the APA can be redrafted in a manner that recognizes the distinctive character of modern administrative governance.","PeriodicalId":51518,"journal":{"name":"Cornell Law Review","volume":"89 1","pages":"95"},"PeriodicalIF":2.5,"publicationDate":"2003-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68702693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}