Over on the Sentencing Law and Policy blog, Douglas Berman discusses the latest issue of the Federal Sentencing Reporter, which was guest edited by Assistant Clinical Professor of Law Alison Siegler. Berman writes:
As explained in Alison's Guest Editor’s Observations, which can be accessed at this link, the goal of this FSR Issue was to describe the history of fast-track sentencing programs, as well as to illuminate the current debates over whether and when judges have discretion to consider fast-track disparities when sentencing defendants who quickly plead guilty in non-fast-track districts. To this end, this Issue reprints a variety of difficult-to-obtain primary sources that reveal the dynamic and diverse nature of fast-track sentencing programs in federal districts across the nation.
Update: Our original post neglected to mention that rising 3L Tom Gorman contributed an article to this issue about the history of the fast-track disparity.
I have a plan of market division for The Wall Street Journal: I’ll write about antitrust; they will stop writing about it and will instead write about other topics where the local knowledge runs deeper.
Today’s topic, like last week’s, is the proposed Microsoft-Yahoo! search deal. L. Gordon Crovitz addressed this last week in his commentary in a way that I thought was particularly thoughtless (see my post here and Josh Wright’s post as well). Today’s Wall Street Journal editorial at least recognizes that the original deal was Google-Yahoo! though they still fail to connect the dots to see that Microsoft-Yahoo! is only possible because of the prior review by Justice of Google-Yahoo!. They continue to believe that Microsoft-Yahoo! is pro-competitive, as did Crovitz, as do I, but none of us has done a serious antitrust analysis. Monday morning quarterbacking is fun and easy even in antitrust.
So what is my beef with today’s editorial? The Journal has drunk the Google Kool-Aid on pricing in search markets: “search providers like Google and Bing also don’t determine ad prices, which are set through auctions.” This is wrong. From the perspective of the auctioneer, the whole point of auction design is to figure out how to make more money from the auction. I gave a quick seven-minute speech on this as part of as debate hosted by Intelligence Squared in New York in November and you can watch that but let me describe the highlights quickly.
Woody Allen once explained why he didn't eat oysters by saying "I like my food dead. Not sick. Not wounded. Dead." Many people like their constitutional clauses the same way. But even those constitutional theorists who endorse a dynamic interpretation of the constitution seem to restrict it to constitutional standards, while excepting constitutional rules. So something like the Eighth Amendment's cruel and unusual punishment provision is a viable candidate to be updated, while the Seventh Amendment's rule that jury trials must be preserved where the amount in controversy is greater than $20 is not.
Professor Dixon challenges this view in her ongoing project, "Dynamic Constitutional Rules." Dixon beings by addressing three primary arguments forwarded for why constitutional rules should be exempt from updating: first, that compared to standards their importance is measured more by their providing clarity than their substantive content; second, that the costs of unsettling them are systematically higher than doing so to constitutional standards; and third, that there has been less "drift" in the scope of constitutional rules compared to standards. None of these arguments, she claims, holds water as a general matter even applied to the clearest constitutional rules. Many constitutional rules have extremely important welfare and/or distributional consequences -- they are not just coordination games. The rule regarding Senate representation, for example, has very real and noticeable effects on the distribution of federal government resources to large versus small states. Constitutional rules also can and have seen a disjuncture develop between their original purpose and their facial textual demands. Any intent for the Seventh Amendment's $20 clause to conserve judicial resources clearly is impotent in the face of the text today. Finally, the costs of upsetting a constitutional rule does not necessarily have to be higher than changing standards, particularly given the opportunities for indirect updating techniques.
It would be nice if the AP had the courage of its convictions. The AP has issued a statement backing away from its practices in this case. We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg—free, of course—and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 (see slides 3 to 13). That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.
The Immanent Frame, a blog run by the Social Science Research Council, recently asked a number of leading thinkers, including our own Arnold I. Shure Professor of Law Mary Anne Case, for a response to the ongoing debate over the role of homosexuals in the Anglican Communion. They were asked:
In light of both the ongoing conflict within the Anglican Communion and the Archbishop’s latest missive, we ask: why has homosexuality persisted as a divisive issue for religious traditions and communities, within the Anglican Communion and beyond? And what are the likely effects of the Archbishop’s recent intervention?
You can read Professor Case's response here.
The other participating scholars were:
L. Gordon Crovitz, a Wall Street Journal commentator, has a piece in the paper this morning, “The Antitrust Anachronism,” discussing the proposed Microsoft-Yahoo! search deal. Crovitz sees the deal as an arrangement between two weak 2-3 competitors against a dominant Google and clearly sees the deal as pro-competitive. Crovitz seems to conclude that antitrust regulators should simply exit the field in markets like search—he calls the Sherman Act “a legal relic”—and notes the ways in which benefits to consumers can be delayed as regulators review deals.
This misses of course one key point: absent antitrust review of search deals, this deal would not be taking place. This deal is only possible because the prior proposed deal between Google and Yahoo!—a 1-2 deal—was effectively blocked by precisely the same antitrust review process that Crovitz decries. (Disclosure: I consulted for the opposition to the Google—Yahoo! deal.) Absent that review, Google and Yahoo! would have done their deal and Microsoft would have been left on the sideline.
You can criticize whether the regulators should have blocked the Google-Yahoo! deal. That view would seem consistent with most of what Crovitz says about the difficulties of regulating these highly dynamic markets and the hope that Schmupeterian competition will suffice. But what we cannot do—and this I think is the error implicit in Crovitz’s piece—is to criticize the business review process for Microsoft—Yahoo! when it was precisely that process for Google-Yahoo! that made the new deal that Crovitz likes possible. Do reviews, don’t do reviews, but no selective criticism of this review without acknowledging the role that the review process played in creating the foundation for this deal. No reviews at all would have meant Google-Yahoo!, not Microsoft-Yahoo!.
I say all that while sharing Crovitz’s instincts that this deal probably improves competition in the search market. My expectation, without a lot of analysis to be sure, is that the regulators will approve this deal after doing the appropriate regulatory due diligence. But they seemingly were going to challenge Google-Yahoo!— as I thought that they should—and that is the deal that Crovitz needs to be prepared to defend if he really thinks antitrust is an anachronism.