CURRENT ISSUE
VOLUME 86, NUMBER 6
May 2008
Articles
Technocracy and Antitrust
by Daniel A. Crane
In this Article, Professor Crane looks at the shift in U.S. antitrust enforcement from a democratic–populist undertaking to a technocratic endeavor relegated to specialists in the Justice Department and the Federal Trade Commission (FTC). Professor Crane largely celebrates this shift and calls for more technocratic experimentation in antitrust. Professor Crane documents the shift in antitrust law through the course of its history to show how the political salience of antitrust law has varied throughout its history. The overall trend, however, is that antitrust law "has become increasingly separated from popular politics, insulated from direct democratic pressures, delegated to industrial-policy specialists, and compartmentalized as a regulatory discipline." While antitrust may no longer be "a magisterial pursuit" that "stir[s] the public imagination," and while the political salience of antitrust has declined following the Chicago School revolution of the 1970s, actual antitrust regulation continues unabated. Thus, the diminishing visibility of antitrust law does not signal its obsolescence, but rather its increased sophistication as a body of law and the increased sophistication of the institutions charged with administering such law. In contrast to this overall trend towards technocratic methods, antitrust law still contains a few populist institutions. Professor Crane advocates for antitrust law to get out from "under the shadow" of its remaining populist institutions. The reforms he suggests—such as separating cartel enforcement from other antitrust enforcement and granting the FTC norm-creation powers—would not be radical and would simply further the technocratic drift of antitrust law. Ideally, Professor Crane hopes that antitrust will become "an expertized, administrative enterprise focused on managing market structures and industrial practices as opposed to a populist, generalist-driven one focused on locating and punishing forbidden bad acts."
Standards, Testing, and School Finance Litigation
by James E. Ryan
This Article challenges the conventional view of the effects of academic standards under the No Child Left Behind Act on school finance litigation. Suits litigated over the last fifteen years against states challenging the way that they fund their schools under state constitutions reflect the adoption of a new litigation strategy. Rather than focusing on "equity" of funding, lawyers have been focusing on the "adequacy" of such funding by asking whether the funding is enough to provide an adequate education to students. In the absence of the standards and testing procedures mandated by No Child Left Behind, such suits could founder at the definitional stage—specifically in trying to define what "adequate" means in terms of funding. Courts not trained to make such determinations might be less reluctant to enter into and less likely to remain in school funding disputes when faced with this "knotty" definitional problem. In this vein, the "emerging consensus among commentators, which is hardening into conventional wisdom" states that the standards and testing requirements of No Child Left Behind are a boon for school finance plaintiffs because they provide courts with a legislative benchmark for adequate performance. This Article criticizes that emerging consensus and attempts to point out the many flaws in its reasoning. First, the Article argues that the claim that standards and testing have already helped school finance plaintiffs is wrong as an empirical matter. Second, Professor Ryan argues that the belief that standards and testing will help school finance plaintiffs is also misguided. By looking at actual school finance cases, this Article shows that courts have almost never utilized legislative standards to define adequacy. Professor Ryan also argues that the utilization of standards in school finance litigation may (1) narrow the focus on what constitutes "education" (and thereby reduce the ambitiousness of reform); (2) actually encourage courts to preserve the funding status quo; and (3) create "perverse" incentives for state legislatures to lower standards in order to make education cheaper. Assuming, as Professor Ryan does, that failing schools require more funding, the standards approach could actually harm, rather than benefit, school finance plaintiffs. Finally, this Article argues that "[c]ourts, litigants, and commentators should focus their attention on fleshing out the idea of comparability" of resources between schools. Professor Ryan emphasizes and strongly advocates "tying" strategies in education reform. Application of a comparability standard is also better suited to courts' institutional capabilities because "courts are in a better position to compare resources than they are to determine the link between particular inputs and certain outcomes." Accepting the premise that more funding will improve failing schools, Professor Ryan concludes that comparability of resources offers a better framework for school finance plaintiffs trying to bring more state funding into underfunded school districts.
Book Review
Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson
by Charles D. Kelso and R. Randall Kelso
Reviewing Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)
In this Review, Professors Charles and Randall Kelso discuss Professor Levinson's book Our Undemocratic Constitution. Levinson's book has two major purposes: (1) to document and describe the many ways in which our Constitution produces or could produce countermajoritarian results and (2) to urge (in light of these antidemocratic "flaws") that we hold a constitutional convention to draft a new constitution for submission to the electorate. They describe Levinson as a supporter of "deliberative democracy" as an end in itself, perhaps the ultimate end of political institutions. Indeed, all of Levinson's suggestions, from making the Senate less antidemocratic to doing away with lifetime tenure for Supreme Court Justices, are attempts to move toward a society where government "accord[s] with what the people want, as expressed in election returns, assuming a very broad electorate, with each person's vote counting the same." While Professors Charles and Randall Kelso commend Our Undemocratic Constitution for its conciseness, clarity, and organization, they find it unconvincing in two respects. First, even assuming that Professor Levinson's project for deliberative democracy is sensible, they argue that none of his proposals are pragmatic. The probability of the polity organizing for a constitutional convention to write a new constitution is nearly zero, and the political barriers that must be overcome to implement Levinson's proposals in the manner he suggests are prohibitively high. Second, Professors Charles and Randall Kelso question the wisdom of Professor Levinson's elevation of deliberative democracy as an end in itself. They point out that "the choice that must ultimately be made in advanced societies regarding majority rule and individual or minority rights is between rational principles of justice versus either self-interested interest-group politics or following the customs and traditions of society." This is so because rational principles of justice are not necessary outcomes of democratic processes. Referencing Lawrence Kohlberg's six stages of moral reasoning, the authors of this Review argue that rational principles of justice are a higher end than democracy, and therefore the force of democratic majorities must be mitigated or mediated by those principles of justice (e.g., the "self-evident" truths espoused at the beginning of the Declaration of Independence). Thus, Professors Charles and Randall Kelso disagree with Professor Levinson's core claim that deliberative democracy is the end to which our political institutions should be structured. They conclude by urging Professor Levinson to write a follow-up book in which he might attempt to discover solutions to the problems he identifies that work within the existing constitutional framework. They believe that a book along those lines would be worthy of generating "heated, and critically important, debate."
Notes
Remedying Daubert's Inadequacy in Evaluating the Admissibility of Scientific Models Used in Environmental-Tort Litigation
by Matthew W. Swinehart
Mathematical modeling is an indispensable tool in the field of environmental science, and inevitably, such models must be used as evidentiary tools in environmental-tort litigation. However, the test for the reliability and relevance (and, ultimately, for the admissibility) of scientific testimony as articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. has proven especially problematic in evaluating the reliability of such mathematical models. Many factors contribute to this problem: models are often plagued by uncertainty and lack of transparency; in an adversarial context, models are often used to obfuscate rather than clarify empirical evidence; and models can often be overly technical and challenging for judges and juries who may be unfamiliar with even the most basic scientific issues posed by the use of a model. In light of these problems, this Note argues that Daubert is not the correct framework for addressing the problem of model reliability because it "hits scientific modeling sideways and often obscures the benefits of modeling, while potentially ignoring many of its problems, leading to too many false positives and false negatives in decision making." Because the field of modeling constitutes a sui generis problem, the Daubert factors should be abandoned or at least heavily modified in the context of evaluating models. This Note looks to the use of models by regulatory agencies, particularly the U.S. Environmental Protection Agency (EPA), in formulating a new test. In line with practices of the EPA, it advocates the creation of a mandatory screening checklist to be used by decision makers.
Standing Up for Justice: A Case for Amending a Rule that Unreasonably Restricts Who May Sue for Injury to Real Property
by Claire B. Chandler
This Note addresses the rule of property law providing the proper person to bring claims for injury to real property is the owner of the property at the time of the injury. This rule restricts subsequent owners of real property from bringing suit against tortfeasors who injured the property before their purchase. The inability of landowners to obtain relief from tortfeasors has many negative consequences, including preventing parties who have been harmed from obtaining relief and creates an inequitable windfall for tortfeasors. The bases of this rule are examined and found to be anachronistic and indefensible, and this Note urges that the rule be amended. Specifically, this Note suggests that state courts add a notice provision and a free-assignment-of-claims provision to the existing rule. The notice provision would provide that the proper party to bring tort claims for injury to real property is the owner of the land at the time of injury unless the subsequent owner of the land did not have notice of the injury when she purchased the property. The second addition to the existing rule, a free-assignment-of-claims provision, would allow owners of real property to assign their property damage claims to subsequent purchasers, and this Note defends the provision from application of the doctrinal vestiges of the old (and now almost obsolete) common law prohibition against assignment of causes of action. This Note concludes that a fully amended rule would provide that "the proper party to bring tort claims for injury to land is the person who owned the land at the time that it was injured unless either (1) the subsequent owner of the land did not have notice of the property damage when she purchased the injured land or (2) the person who owned the land when it was injured assigned her property damage claims to someone else."
