Suchergebnisse

The dark side of occupational licensing-its tendency to raise prices to consumers with dubious effects on service quality, its enormous payout to licensees, and its ability to shut many willing workers out of the workforce-has begun to receive significant attention. But little has been said about the legal institutions that create and administer this web of professional entry and practice rules. State-level licensing boards regulate nearly one-third of American workers, yet, until now, there has been no systematic attempt to understand who serves on these boards and how they operate. This Article undertakes an ambitious and comprehensive study of all 1,790 licensing boards in the U.S. and identifies their statutory membership. The results are clear: nearly all of them are controlled by professionals holding a license issued by the board itself This self-regulation is disturbing enough if one expects at least some governmental involvement in decisions that are known to redistribute income, block labor entry, and harm consumers. But now the practitioner-dominated licensing board is not just an urgent policy problem, but a legal one. A recent Supreme Court case has placed these boards and their members in the cross hairs of federal antitrust liability, precipitating a legal crisis for the states. This Article identifies the enormous scope of the Court's opinion in North Carolina State Board of Dental Examiners v. FTC, opines on the meaning of its somewhat cryptic holding, and suggests steps that states can take to reform their boards with an eye to both antitrust immunity and more reasonable occupational regulation.

"Antitrust federalism, " or the rule that state regulation is not subject to federal antitrust law, does as much as-and perhaps more than-its constitutional cousin to insulate state regulation from wholesale invalidation by the federal government. For most of the last century, the Court quietly tinkered away with the contours of this federalism, struggling to draw a formal boundary between state action (immune from antitrust suits) and private cartels (not). But with the Court's last three antitrust cases, the tinkering has given way to reformation. What used to be a doctrine with deep roots in constitutional federalism is now a doctrine with close ties to the federal administrative state where courts sit in judgment of an agency's decision-making procedure.The new antitrust federalism conditions antitrust immunity not on the fact of state regulation but on the process of that regulation. Now, only regulation created by a politically accountable process is beyond the reach of federal antitrust suits, exposing vast areas of state regulation to new antitrust scrutiny. This Article argues that the new antitrust federalism is an improvement on the old, both because the old boundary model was unworkable and because the new regime addresses the "inherent capture " problems at the heart of modern state regulation. But this Article also warns that if the Court does not give accountability review real bite, it may have to abandon the new antitrust federalism and opt for a nuclear option that could portend the end of antitrust federalism altogether.

It is often pointed out that while the United States Supreme Court is the final arbiter in setting antitrust policy and promulgating antitrust rules, it does so too infrequently to be an efficient regulator. And since the antitrust agencies, the Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("DOJ"), rarely issue guidelines, and even more rarely issue rules or regulations, very little antitrust law is handed down from on high. Instead, circuits split, and lower courts must muddle through new antitrust problems by finding analogies in technologically and socially obsolete precedents. When faced with this void of authority, especially covering cutting-edge antitrust issues raised by new technology and business arrangements, lower courts often turn to a single treatise, Antitrust Law: An Analysis of Antitrust Principles and Their Application, by the late Philip E. Areeda and Herbert Hovenkamp. The treatise's influence is such thatJustice Breyer has remarked "that most practitioners would prefer to have two paragraphs of Areeda's treatise on their side than three Courts of Appeals or four Supreme Court Justices." Why courts are so influenced by the treatise is no secret: It is up-todate, technologically savvy, politically middle-of-the-road, economically literate, comprehensible, and comprehensive. The monopoly that Professor Hovenkamp (as the only living editor of the treatise) has inherited and lovingly maintains is certainly the kind of which antitrust would approve: It is a monopoly "thrust upon it" by simply being the best. But its dominance in lower courts and, therefore, in firm decision-making, should raise concerns among those who believe it was Congress's intent to put the courts, not a professor, in charge of antitrust policy. The solution, of course, is not to force the lower courts away from the Areeda-Hovenkamp treatise; in the absence of binding authority, reliance on such a fine treatise can only improve antitrust jurisprudence. But this reliance may ...

In 2013, the Supreme Court made the offhand comment that empirical models and their estimations or predictions are not 'findings of fact" deserving of deference on appeal. The four Justices writing in dissent disagreed, insisting that an assessment of how a model works and its ability to measure what it claims to measure are precisely the kinds of factual findings that the Court, absent clear error cannot disturb. Neither side elaborated on the controversy or defended its position doctrinally or normatively. That the highest Court could split 5-4 on such a crucial issue without even mentioning the stakes or the terms of the debate, suggests that something is amiss in the legal understanding of models and modeling. This Article does what that case failed to do: it tackles the issue head-on, defining the legal status of a scientific model's results and of the assumptions and choices that go into its construction. I argue that as a normative matter models and their conclusions should not be treated like facts. Models are better evaluated by a judge, they do not merit total deference on appeal, and modeling choices are at least somewhat susceptible to analogical reasoning between cases. But I show that as a descriptive matter courts often treat models and their outcomes like issues of fact, despite doctrines like Daubert that encourage serious judicial engagement with modeling. I suggest that a perceived mismatch between ability and task leads judges to take the easier route of treating modeling issues as facts, and I caution that when judges avoid hard questions about modeling, they jeopardize their own power and influence.