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.
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
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.
Yesterday, the Federalist Society posted a brief recording of Richard Epstein discussing Locke v. Karass. In this case, the Court considered whether union
requirements that dictate that nonmembers pay a service fee for
litigation that does not directly benefit the local union (i.e.
“national litigation”) violate the First Amendment. You can listen to the recording here.
James Grimmelmann has been having some fun with the
Associated Press (here,
The AP participates in the icopyright content licensing system in an effort to monetize their
content. James bought a license through the system to a well-known quote from
Thomas Jefferson for $12. That came subject to icopyright’s elaborate
in his blog. The Jefferson quote of course has long been in the public domain.
In response to a furor over the last day—spurred by a post
on BoingBoing, discussion
on Slashdot and a tweet
by Tim O’Reilly to his 878,907 followers on Twitter—thereby hitting the Holy
Trinity of the digital world—the AP has revoked the license and returned the
$12 with the AP duly chastised.
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.
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?
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
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.