The Sherman Act forbids contracts that restrain interstate commerce, and proof of significant market power is usually necessary to establish the existence of such a restraint. Recently, however, some have argued that courts should employ the Sherman Act to regulate opportunistic behavior by franchisors that do not possess the sort of market power ordinarily necessary to establish antitrust liability. Inspired by the Supreme Court's decision in Eastman Kodak v. Image Technical Services, these advocates find "market power" in the presence of relationship-specific investments and would impose antitrust liability on franchisors that abuse such power to the detriment of their franchisees. Informational asymmetries and bargaining costs, it is said, prevent franchisees from protecting themselves in the bargaining process from unduly onerous contractual terms. This essay argues that reliance upon the Sherman Act to combat franchisor opportunism would constitute an unjustified expansion of federal regulatory authority and upset the traditional division of labor between states and the national government. To be sure, scholars have provided a plausible story of opportunism in the franchising context, where bargaining and information costs can be significant. Still, these advocates have not explained why federal regulation of such behavior is warranted. As Professor Coase has recognized, bargaining and information costs do not exist in a vacuum, but are instead a function of the institutional framework, a framework constructed by background rules of (state) contract law that lower the costs of entering and maintaining relational contracts. Any argument for federal intervention to combat opportunism, then, must explain why the background rules of contract law are not adequate to minimize information and bargaining costs and thus deter opportunistic behavior. More precisely, those who advocate Sherman Act regulation of franchiser opportunism must demonstrate that competition between the states to produce the institutional framework governing the franchisor-franchisee relationship is characterized by a "race to the bottom" that warrants federal intervention. Preliminary analysis suggests that such a race to the bottom is unlikely. No state can become a "haven" for opportunistic franchisors without the cooperation of other states, who must enforce the franchisor's choice of law clauses. Moreover, states that adopt institutional frameworks that raise the cost of transacting and thus facilitate franchisor opportunism will raise the costs of intrastate transactions and make their own citizens vulnerable to opportunism. Federalizing this body of law, then, would unnecessarily deprive businesses and consumers of the benefits of interjurisdictional competition.
{"title":"Regulation of Franchisor Opportunism and Production of the Institutional Framework: Federal Monopoly or Competition Between the States?","authors":"Alan J. Meese","doi":"10.2139/SSRN.186049","DOIUrl":"https://doi.org/10.2139/SSRN.186049","url":null,"abstract":"The Sherman Act forbids contracts that restrain interstate commerce, and proof of significant market power is usually necessary to establish the existence of such a restraint. Recently, however, some have argued that courts should employ the Sherman Act to regulate opportunistic behavior by franchisors that do not possess the sort of market power ordinarily necessary to establish antitrust liability. Inspired by the Supreme Court's decision in Eastman Kodak v. Image Technical Services, these advocates find \"market power\" in the presence of relationship-specific investments and would impose antitrust liability on franchisors that abuse such power to the detriment of their franchisees. Informational asymmetries and bargaining costs, it is said, prevent franchisees from protecting themselves in the bargaining process from unduly onerous contractual terms. This essay argues that reliance upon the Sherman Act to combat franchisor opportunism would constitute an unjustified expansion of federal regulatory authority and upset the traditional division of labor between states and the national government. To be sure, scholars have provided a plausible story of opportunism in the franchising context, where bargaining and information costs can be significant. Still, these advocates have not explained why federal regulation of such behavior is warranted. As Professor Coase has recognized, bargaining and information costs do not exist in a vacuum, but are instead a function of the institutional framework, a framework constructed by background rules of (state) contract law that lower the costs of entering and maintaining relational contracts. Any argument for federal intervention to combat opportunism, then, must explain why the background rules of contract law are not adequate to minimize information and bargaining costs and thus deter opportunistic behavior. More precisely, those who advocate Sherman Act regulation of franchiser opportunism must demonstrate that competition between the states to produce the institutional framework governing the franchisor-franchisee relationship is characterized by a \"race to the bottom\" that warrants federal intervention. Preliminary analysis suggests that such a race to the bottom is unlikely. No state can become a \"haven\" for opportunistic franchisors without the cooperation of other states, who must enforce the franchisor's choice of law clauses. Moreover, states that adopt institutional frameworks that raise the cost of transacting and thus facilitate franchisor opportunism will raise the costs of intrastate transactions and make their own citizens vulnerable to opportunism. Federalizing this body of law, then, would unnecessarily deprive businesses and consumers of the benefits of interjurisdictional competition.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2000-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.186049","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67763471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Formalism is the jurisprudence of rules.1 Functionalism is the jurisprudence of balancing tests.2 If forced to choose between formalism and functionalism, I would probably corne down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism-in other words, because there are good functionalist reasons to be a formalist.3 Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancing,4 but rather over the generality and the source of the
{"title":"Toward a Principled Interpretation of the Commerce Clause","authors":"T. Merrill","doi":"10.7916/D86H4H17","DOIUrl":"https://doi.org/10.7916/D86H4H17","url":null,"abstract":"Formalism is the jurisprudence of rules.1 Functionalism is the jurisprudence of balancing tests.2 If forced to choose between formalism and functionalism, I would probably corne down on the side of formalism. I would not do so, however, because there is some meta-rule that prescribes formalism. Rather, it would be because formalism, on balance, has better consequences than functionalism-in other words, because there are good functionalist reasons to be a formalist.3 Where I part company with many constitutional formalists is not so much over the desirability of rules as opposed to ad hoc balancing,4 but rather over the generality and the source of the","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"22 1","pages":"31-43"},"PeriodicalIF":0.6,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71364962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Judicial Review and Federalism","authors":"J. Yoo","doi":"10.2307/j.ctv56fggn.12","DOIUrl":"https://doi.org/10.2307/j.ctv56fggn.12","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"22 1","pages":"197"},"PeriodicalIF":0.6,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68813459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called "law change" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for
{"title":"Does Public Choice Theory Justify Judicial Activism After All","authors":"T. Merrill","doi":"10.7916/D8Z037S2","DOIUrl":"https://doi.org/10.7916/D8Z037S2","url":null,"abstract":"Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called \"law change\" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"21 1","pages":"219-230"},"PeriodicalIF":0.6,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism,1 justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quotingJustice Brennan, the judge's "personal confrontation with the well-springs 6f our society."2 My thesis is that there is a third option, which I will call conventionalism.' Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke.4 I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values-the rule of law, promotion of democracy, and so on-that
{"title":"Bork V. Burke","authors":"T. Merrill","doi":"10.7916/D8S46RKJ","DOIUrl":"https://doi.org/10.7916/D8S46RKJ","url":null,"abstract":"I would like to make the case for a conservative alternative to originalism. Much of the discussion that has taken place over the last two days has proceeded on the assumption that there are two choices. One is Robert Bork's originalism,1 justified by various values near and dear to conservative hearts, such as the rule of law, continuity with the past, the principle of democratic accountability, and so forth. The other is to flee into the hands of the so-called nonoriginalists, and embrace, to quote Judge Easterbrook quotingJustice Brennan, the judge's \"personal confrontation with the well-springs 6f our society.\"2 My thesis is that there is a third option, which I will call conventionalism.' Conventionalism draws much of its inspiration from the writings of a British politician and man of letters, Edmund Burke.4 I will argue that there is a Burkean or conventionalist approach to interpretation that is distinct from both Borkean originalism and from the various types of nonoriginalism favored in the legal academy, which I will lump together under the label normativism. I will also argue that the conventionalist approach can be justified by the same conservative values-the rule of law, promotion of democracy, and so on-that","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"19 1","pages":"509-523"},"PeriodicalIF":0.6,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71368001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift,1 or whether I mean it to be taken seriously. The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is "a product of the substance and perception" that it is a court of law.3 Thus, frequent overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings are grounded in law.4 Especially when a controversial ruling like Roe v. Wad is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is "surrender[ing] to political pressure" or "over-nul[ing] under fire."6 Such a perception, in turn, would lead to "loss of confidence in the judiciary."7 Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.
我提出一个小小的建议。你可以自己决定，我是本着乔纳森·斯威夫特(Jonathan Swift)的精神，还是想让你认真对待。人们普遍认为，最高法院的合法性取决于这样一种看法，即它的裁决是由法律决定的。这是最高法院在1991年任期结束时就“计划生育诉凯西案”(Planned Parenthood v. Casey)做出的非同寻常的联合意见的核心论点。联合意见指出，法院的权力在于其合法性，其合法性是法院作为法院的“实质和观念的产物”因此，频繁的推翻裁决是应该避免的，因为这将“使国家对法院的裁决是基于法律的信念过度征税”特别是当涉及到像罗伊诉韦德案这样有争议的裁决时，应该不惜一切代价避免做出推翻裁决的决定，因为这会给人一种法院“屈服于政治压力”或“在炮火下推翻裁决”的印象。这种看法反过来又会导致“对司法机构失去信心”。翻译过来，联合意见书的主旨是，一项决定越偏离宪法，法院就越要坚持该决定，否则公众可能会得出天皇没穿衣服的结论。
{"title":"A Modest Proposal for a Political Court","authors":"T. Merrill","doi":"10.7916/D80P0ZMK","DOIUrl":"https://doi.org/10.7916/D80P0ZMK","url":null,"abstract":"I offer a modest proposal. You can decide for yourself whether it is offered in the spirit of Jonathan Swift,1 or whether I mean it to be taken seriously. The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey,' decided by the Supreme Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy, and that its legitimacy is \"a product of the substance and perception\" that it is a court of law.3 Thus, frequent overrulings are to be avoided, because this would \"overtax the country's belief' that the Court's rulings are grounded in law.4 Especially when a controversial ruling like Roe v. Wad is involved, a decision to overrule should be avoided at all costs, because this would give rise to the perception that the Court is \"surrender[ing] to political pressure\" or \"over-nul[ing] under fire.\"6 Such a perception, in turn, would lead to \"loss of confidence in the judiciary.\"7 Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution, the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"17 1","pages":"137-147"},"PeriodicalIF":0.6,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71363329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
ments (pp. 145, 296, 338,353,355, 359, 390, and 391), some actually adopted, others merely proposed and left to perish from indifference (pp. 300, 373, and 379). In consequence, the author repeatedly finds himself involved in discussion of points that lead nowhere and of distinctions that, in the end, prove to be without differences. For example, following elaborate discussion, he is led to admit that in respect of succession as applied to African regional organizations, political interests have voided of juridical content the otherwise significant distinction between real and movable property (pp. 380, 387). One must question the author's assertion that there has been no problem in recognizing succession of international organizations in the case of the takeover of the properties of the East African Common Services Organization (EACSO) by the East African Community. The latter organization was the creation of three independent states (Kenya, Tanzania, and Uganda), whereas the former was a structure created unilaterally by the British Government. The emphasis is on "succession" as applied to the Afro-Malagasy Union (UAM), the Afro-Malagasy Organization of Economic Cooperation (OAMCE), the Afro-Malagasy Union of Economic Cooperation (UAMCE), and the Afro-Malagasy Common Organization (OCAM). Contributions from French authors are extensively cited and quoted, including unpublished lectures (repetitions ecrites), to the almost total exclusion of works in English. Little use has been made of the jurisprudence of the International Court of Justice in the South West Africa, the AngloIranian, and the Aerial Incident cases, and the theoretical underpinnings of the problem are completely ignored. Nor can one share Professor Bastid's enthusiasm for the "meticulous treatment of materials and discussion" and "the care in assembling documentation" (pp. x, xi). A generous indifference to accuracy infuses both the text and quotations from official documents (pp. 32, 71, 77, 173, 195, 337, 375, and 389).
{"title":"An International Rule of Law. By Eberhard P. Deutsch. Charlottesville: University Press of Virginia, 1977. Pp. xxix, 389. Appendixes. Index. $20.","authors":"Peter D. Trooboff","doi":"10.2307/2201524","DOIUrl":"https://doi.org/10.2307/2201524","url":null,"abstract":"ments (pp. 145, 296, 338,353,355, 359, 390, and 391), some actually adopted, others merely proposed and left to perish from indifference (pp. 300, 373, and 379). In consequence, the author repeatedly finds himself involved in discussion of points that lead nowhere and of distinctions that, in the end, prove to be without differences. For example, following elaborate discussion, he is led to admit that in respect of succession as applied to African regional organizations, political interests have voided of juridical content the otherwise significant distinction between real and movable property (pp. 380, 387). One must question the author's assertion that there has been no problem in recognizing succession of international organizations in the case of the takeover of the properties of the East African Common Services Organization (EACSO) by the East African Community. The latter organization was the creation of three independent states (Kenya, Tanzania, and Uganda), whereas the former was a structure created unilaterally by the British Government. The emphasis is on \"succession\" as applied to the Afro-Malagasy Union (UAM), the Afro-Malagasy Organization of Economic Cooperation (OAMCE), the Afro-Malagasy Union of Economic Cooperation (UAMCE), and the Afro-Malagasy Common Organization (OCAM). Contributions from French authors are extensively cited and quoted, including unpublished lectures (repetitions ecrites), to the almost total exclusion of works in English. Little use has been made of the jurisprudence of the International Court of Justice in the South West Africa, the AngloIranian, and the Aerial Incident cases, and the theoretical underpinnings of the problem are completely ignored. Nor can one share Professor Bastid's enthusiasm for the \"meticulous treatment of materials and discussion\" and \"the care in assembling documentation\" (pp. x, xi). A generous indifference to accuracy infuses both the text and quotations from official documents (pp. 32, 71, 77, 173, 195, 337, 375, and 389).","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"74 1","pages":"463 - 464"},"PeriodicalIF":0.6,"publicationDate":"1980-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/2201524","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69271060","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Understanding “ The Loop ” : Autonomy , System Decision-Making , and the Next Generation of War Machines","authors":"","doi":"10.2139/ssrn.2043131","DOIUrl":"https://doi.org/10.2139/ssrn.2043131","url":null,"abstract":"","PeriodicalId":46083,"journal":{"name":"Harvard Journal of Law and Public Policy","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2043131","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67877112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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