Priorities for the Next President: Antitrust Law

The priority of the new administration in the field of antitrust law will be to undo the damage wrought by Chicago School dogmatists. This does not mean that the economic theories that form the basis of Chicago School economics or its application are incorrect. But, the broad assault by academic, bureaucratic, and juristic theorists over practical reality that has gained significant momentum during the administration of George Bush the younger (hereafter the Bush Administration) has struck down the existing antitrust legal analysis without regard to precedent, evidence, jury findings, and the value to society of private attorneys general in the enforcement of antitrust laws.  During the Bush Administration, the older Chicago School theorists on the United States Supreme Court and the lesser appellate courts have joined with new appointees to alter in many basic ways the structure of antitrust law, e.g., they have undone the per se standard for vertical minimum price-fixing, created high barriers for plaintiffs at the pleading stage for antitrust cases so that it is difficult to avoid dismissal prior to discovery, and strengthened the freedom of monopolists to refuse to deal with parties dependent on what they sell and thereby to avoid greater competition for whatever their products may be used to produce.

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Cert Grant: What Is “Knowing” Identity Theft?

A federal statute, 18 U.S.C. § 1028A, imposes a mandatory two-year prison sentence on defendants who “knowingly” use “a means of identification of another person” in the course of committing a felony.  The two years is in addition to the sentence imposed for the underlying felony.  But what exactly does the word “knowingly” refer to in the statute: is it enough that the defendant knew that he was using a means of identification, or must the government also prove that the defendant knew the identification belonged to another person?  This is the question raised in a case that the Supreme Court agreed to hear earlier today, United States v. Flores-Figueroa.  The unpublished opinion below can be found at 2008 WL 1808508.

SCOTUS Blog summarizes the facts as follows:

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When Should Records Be Sealed in Employment Discrimination Cases?

Sealed_record Thanks to friend of the blog, Jack Sargent, for pointing me to this fascinating dispute before the U.S Supreme Court now concerning the sealing of a record in an employment discrimination case.

From the reporters committee for freedom of the press blog:

The Reporters Committee for Freedom of the Press today filed a brief asking the U.S. Supreme Court to review a decision that allowed all records in a federal employment discrimination case to be hidden from the public. The Reporters Committee filed the brief on behalf of itself and 29 other leading media organizations.

The friend-of-the-court brief was filed in support of The Legal Intelligencer, which petitioned the Supreme Court for review after the Third Circuit Court of Appeals rejected its request to intervene in Doe v. C.A.R.S. Protection Plus Inc. The newspaper sought to unseal the docket and record in Doe, a case in which the plaintiff claimed she was wrongly fired because she had an abortion.

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