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In this comment, William Shieber argues that Professor Crane’s analysis is fundamentally flawed for two reasons. First, Shieber suggests that Crane’s measure of how to judge political interest—considering references to antitrust issues in presidential candidate speeches, and considering the absence of direct Presidential involvement in filing antitrust suits—is wanting. Second, Shieber considers the fact that both the Federal Trade Commission and the DOJ, the agencies responsible for antitrust enforcement, are overseen by political appointees. From this, Shieber argues that one cannot remove the values of these appointees from the regulatory process, which necessarily means that the ultimate decisions made by these agencies have a substantial political component. For these reasons, Shieber disagrees with Crane’s conclusion that U.S. antitrust enforcement has declined in political salience.
In his response to Mr. Shieber’s comment, Professor Crane clarifies that his article does not suggest antitrust decisions are apolitical. Crane agrees with Shieber that the ideological bent of the administration has some effect on antitrust outcomes. However, Crane notes that antitrust has ceased to be a campaign issue and is almost completely absent from political debate. Crane also criticizes Shieber’s use of the Bush administration’s settlement of the Microsoft antitrust case to support his opinion that antitrust enforcement is still highly partisan without first noting that the D.C. Circuit opinion—handed down at the very beginning of the Bush administration—damaged the government’s bargaining position.
In this Comment to Professor Prakash’s article, Professor Ramsey disagrees with Prakash’s contention that the Constitution does not grant the President any exclusive military powers.
In particular, Ramsey takes issue with Prakash’s view that Congress’s constitutional power “to make Rules for the Government and Regulation of the land and naval Forces” gives Congress all-encompassing military power. He finds that although the Constitution grants Congress the authority to pass standing laws regulating general military conduct, the Constitution does not grant Congress the power to direct battlefield operations. Comparing the Constitution’s language to that of its predecessor, the Articles of Confederation, Ramsey argues that the President, alone, has the power to direct military operations, and congressional attempts to exercise such authority would be unconstitutional.
In this comment to Intellectual Privacy by Neil Richards, Professor Anderson discusses the problems inherent with a binary legal classification system that treats information as either all private or all public in an age where communications technologies make the line between private and public information blurry at best.
He approves of the shift in law that recognizes the difference between, for example, a conversation overheard by one’s coworkers, which may be repeated to their families over dinner, and a conversation overheard by the microphone of a undercover investigative reporter, which may be broadcast to the world. Professor Anderson then calls for reform of the legal fiction that governs check-the-box information-surrender provisions. He calls those provisions what they are: contracts of adhesion, and suggests discarding the fiction altogether in favor of a solution that does not allow private entities to force us to disclose private information under the pretense that our disclosure is voluntary.
In this comment, Professor Blitz argues that professor Richards’ concept of Intellectual Privacy could benefit from a little less First Amendment theory in one area, and a little more in another. In particular, Professor Blitz takes issue with how Professor Richards defines the activities that come within the scope of intellectual privacy protections, suggesting that this area should utilize less First Amendment theory.
Additionally, however, Professor Blitz suggests that Intellectual Privacy could use a better understanding as to why solitary and private intellectual exploration is an important First Amendment value.
In his comment to Intellectual Privacy by Neil Richards, Professor Slobogin praises Richards for his scholarship, but identifies two pragmatic problems with Richards’s argument.
The first is a problem of classification. Slobogin argues that what Richards terms “intellectual records,” which includes lists of books one owns and websites one visits, often reveal little more about us than conclusions that can be drawn from data about our purchases. He finds the distinction Richards draws to be incomplete. It is not clear to Slobogin why data about purchases do not merit extra protection when, by piecing together large numbers of otherwise innocuous data on purchases, one may reach the same conclusions as if one had access to intellectual records. Slobogin also questions the role of the First Amendment in privacy protection when Fourth Amendment doctrine and scholarship address, if not solve, many of the problems Richards identifies.
In this Comment to Professor Porter’s article, Professor Littwin discusses the disturbing results of Porter’s investigation into the mortgage-servicing industry and the mortgagee-filed proofs of claim process in bankruptcy. Littwin also evaluates Porter’s suggestions for improving the process.
She considers their probability of success by focusing on the likelihood of adoption and effectiveness upon institution. Littwin’s Comment concludes with a discussion of the proposed elimination of the exemption currently preventing “cram down” of primary-residence home mortgages in bankruptcy.
A consumer bankruptcy attorney with significant experience dealing with the claims of mortgage servicers, O. Max Gardner III believes that Professor Porter’s study on such claims arose out of mounting concern on the part of bankruptcy courts “about the institutional accuracy and truthfulness of mortgage servicers’ claims.” He applauds her work, noting that Professor Porter’s study will enable more attorneys to evaluate such claims with scrutiny. However, while acknowledging this as a significant step in the right direction, Gardner calls for continued work in uncovering all the misconduct of mortgage servicers.
