Volume 87, Issue 4
Articles
Restrictions on anticompetitive behavior are enforced in one of two ways: either through direct government regulation, or through the administration of antitrust law. In their Article, Antitrust Law and Regulatory Gamin, Professors Stacey Dogan and Mark Lemley note that Supreme Court decisions of the past decade have subordinated antitrust law to direct government regulation. They argue that this is problematic because whereas antitrust law may be interpreted by courts to prevent businesses from achieving anticompetitive ends, regulation consists of inflexible rules which may be exploited.
In support of this distinction, they cite the phenomenon of "regulatory gaming," which they define as "private behavior that harnesses pro-competitive or neutral regulations and uses them for exclusionary purposes"—for example, cases where drug companies have repeatedly made changes to drug formulations in order to prevent generic substitution rather than increase efficacy. To address these sorts of problems, Dogan and Lemley assert that regulatory gaming should be properly addressed by antitrust law, rather than regulation.
In his Article, Understanding Legal Realism, Professor Brian Tamanaha argues that legal realism has been largely misunderstood, because the work of the Realists is often interpreted within a false set of historical and theoretical assumptions. Tamanaha defines realism as consisting of two closely related aspects: a skeptical aspect and a rule-bound aspect.
The skeptical aspect refers to the awareness that judges must sometimes make choices; that they can manipulate legal rules and precedents; and that they can be influenced by their political and moral views and by their personal biases. The rule-bound aspect refers to the understanding that legal rules nonetheless can work; that judges can abide by and apply the law; that there are practice-related, social, and institutional factors that constrain judges; and that judges can render generally predictable, legally based decisions. Using these definitions, Tamanaha dispels some common misconceptions about legal realism.
Responses in See Also:
Book Reviews
In his review of Heather Gerken's book, The Democracy Index, Professor Michael Kang praises Gerken's novel approach to reforming election administration. Gerken proposes creating a ranking system—the Democracy Index—that would list data about election-administration performance for each state.
Kang favors this approach, noting that it represents a conceptual shift away from seeking reform through the neutral judgment of third parties (most often, courts), and instead towards seeking reform by realigning political incentives with voters' interests. Kang notes that this shift is critical because experienced politicians are arguably the people who know the most about the election system, and currently, incumbent politicians have no reason to pursue reform since it was the status quo election system that ushered them into office to begin with. By promoting accountability through a ranking system such as the Democracy Index, politicians are given new, compelling incentives to seek reform.
Notes
In his Note, The OCC's Exclusive Visitorial Authority over National Banks AfterClearing House Ass'n v. Cuomo, Matt Nance examines the role of the Office of the Comptroller of the Currency (OCC)—an agency within the U.S. Department of the Treasury charged with regulating nationally chartered banks.
The OCC has recently enjoyed a string of victories, as federal courts have struck down state legislation regarding check-cashing fees and bank licensing. In 2007, the Second Circuit held in Clearing House Ass'n v. Cuomo, that although New York state fair-lending laws remain valid, only the OCC—not the New York attorney general—has authority to enforce those state laws against national banks. This raises a question: When does the OCC have exclusive authority to enforce otherwise valid state laws? Nance examines the history of the OCC and case law regarding the OCC's authority, arguing that both support the position that the OCC only has exclusive authority to enforce state consumer-protection laws that are specific to the business of banking.
In his Note, Threading the Needle: Intermediate-Scope Broadening Reissue Claims and the Recapture Rule, Tony Petro investigates an unsettled area of patent law. When a patent applicant overly narrows claims during prosecution of the original patent and later seeks to broaden the claims to the limit allowed by the prior art in a reissue application, what is the effect of the "recapture rule" with respect to such broadening?
The Federal Circuit has not spoken clearly on this subject, although the Board of Patent Appeals and Interferences offered guidance in the precedential decision of Ex parte Eggert: such intermediate-scope broadening reissue claims are permissible for a reissue applicant. But in recent patent appeal proceedings, panels of the Board have drawn the opposite conclusion, attempting to distinguish Eggert as inconsistent with other Federal Circuit pronouncements. In this Note, Petro examines the logic employed in recent Board decisions and finds it wanting, concluding that the Eggert rule should stand until the Federal Circuit indicates otherwise.
