The Business of Bigness

brandeisLast summer, Eric Dash of the New York Times wrote an excellent article on the problems associated with big business in the U.S.  Dash noted that almost 100 years ago, Supreme Court Justice Louis Brandeis wrote prophetically about the “curse of bigness.”  Justice Brandeis denounced generally the influence that big business had on U.S. politics and its economy.

Today, Brandies’s “curse of bigness” is incorporated into the less pejorative term for large U.S. companies — companies that are “too big to fail.”  Certainly in light of the recent U.S. financial crisis, people are well aware of the influence that these large U.S. companies have on U.S. politics and its economy.   But these “too big to fail” companies may also be creating moral hazards in business operations, and the U.S. has yet to establish a unified system for dealing with the business of bigness. 

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Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

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Water and People Conference

2880829064_eae0f10628On Friday, February 26, 2010, Marquette University Law School (MULS) will hold its annual Public Service Conference at the Alumni Memorial Union on the Marquette University campus on the increasingly important topic of water law.  The conference, entitled “Water and People,” will address water issues in Wisconsin (as well as nationally and internationally), development and the environment, regulation, and water ethics.  Statewide leaders from business, government, and non-profit served on a steering committee that worked with Assistant Dean for Public Service, Dan Idzikowski, and myself (I coordinate the MULS water law program) to plan the conference.  Based on the group’s efforts, experts from Wisconsin, around the United States, and from Canada will gather to talk about some of the most important topics in the field of water law.  The conference will also feature a keynote address by Cameron Davis, senior advisor to the United States EPA Administrator for Great Lakes Restoration.  You can learn more about the conference and register for the conference at

While no blog post can truly capture all that this conference will entail, here is a preview of the panels and topics.

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