Search

North Carolina State Board of Dental Examiners v. FTC (N.C. Dental) has worked a potential revolution in antitrust law. A revolution because it makes clear that state regulatory agencies dominated by active market participants are not entitled to immunity from federal antitrust liability unless they are actively supervised by the State. But still only a potential revolution, because much depends on what counts as "active state supervision". The story of N.C. Dental is, in large part, the story of how federal courts have tried to define "the State" (for purposes of state-action immunity). N.C. Dental has rejected a labeling approach, a balancing approach, and a sovereignty approach in favor of a financial disinterestedness approach. I argue that this approach isn't obvious from an abstract political-philosophy standpoint but is actually quite sensible as a limited, antitrust-specific definition. Whether state administrative-law judicial review counts as active state supervision has been a topic of recent litigation. I argue that judicial review that is deferential--which is usually the case--can't count. De novo, meritsbased judicial review can count, but it's rare. Moreover, the presence of other accountability-enhancing features shouldn't be considered relevant unless those features are directly related to whether a disinterested official has approved the agency's action on the merits. Finally, I conclude that, in general, the mere availability of judicial review shouldn't be considered active state supervision: it's merely potential, it's costly, and it often must wait until harm is suffered--which discourages its exercise. However, if state judicial review is actually invoked and upholds state regulation on the merits, such judicial review should be considered active state supervision and should confer state-action antitrust immunity. [ABSTRACT FROM AUTHOR]

The article discusses the Supreme Court case North Carolina Board of Dental Examiners v. FTC, in which the Federal Trade Commission (FTC) issued an administrative complaint against the Board, charging the exclusion of non-dentist teeth whiteners was anticompetitive and violated the FTC Act. The Board's argument on state-action immunity and the FTC's order for the Board to stop-issuing extra-judicial orders to teeth-whitening providers, and the Court's decision on the case are discussed.

The article focuses on private regulation skepticism in the U.S. Topics include the private due process doctrine, the mandatory discretionary distinction, and the challenges that come with private regulation. Information is provided on non-delegation and antitrust challenges, remedies for antitrust violations, and state action immunity.

The article focuses on the constitutionality of awarding convicts vouchers allowing them to choose faith-based prisons. The author examines several topics including the delegation of governmental power to religious organizations in faith-based prison administration, the unconstitutional conditions doctrine, and the threat of religious indoctrination on inmates by prison staff.

Throughout western Europe, beginning about 1200, leasing of lords' estates became more common relative to direct management. In England, however, direct management increased beginning around the same time and until the fourteenth century, and leasing increased thereafter. This article models contract choice as a trade-off between incentives and insurance. Leasing increases as living standards improve. In England, the increase in direct management can be explained by improved security of freehold tenure, and the increase in leasing can be explained not only by living standards but also by improved security of leasehold tenure. [ABSTRACT FROM PUBLISHER]

In this Article, I propose a theory of how rational, ideologically motivated judges might choose interpretive methods, and how rational, ideologically motivated laymen—legislators, litigation organizations, lobbyists, scholars, and citizens—might respond. I assume, first, that judges not only have ideological preferences but also want to write plausible opinions. Second, I assume that every method of statutory or constitutional interpretation has a "most plausible point" along a spectrum of possible decisions in a given case. As a result, if a judge decides to use any particular interpretive method, that method will pull him towards its "most plausible point," possibly making him deviate from his own ideal point. When a judge can choose an interpretive method, he selects the one that (taking these deviations into account), among other things, allows him to stay as close as possible to his favored outcome. Thus, any given method is chosen only by judges whose ideal points, roughly speaking, are not too distant from that method's most plausible point. This behavior creates a selection bias. An interpretive method's political valence under a regime of free interpretive choice thus differs systematically from what it would look like if that method were mandatory. As a result, one might favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method. A judge can choose not only which interpretive method to use but also whether to use the same method from case to case. This Article argues that an individual judge's choice of interpretive method does not usually substantially affect the methods that other judges use. Therefore, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, it can often be rational for these judges to deviate from that preferred method in instances where a different method would produce a more appealing outcome. [ABSTRACT FROM AUTHOR]

Examines facts about judicial reforms across different countries. Link between economic performance and the judicial reform initiative; Factors causing judicial stagnation; Measures for resolving systematic judicial failure.