Archives For Ruth Bader Ginsburg

A Law & Economics Perspective on Ruth Bader Ginsburg

Ben Sperry & Kristian Stout —  23 September 2020

With the passing of Justice Ruth Bader Ginsburg, many have already noted her impact on the law as an advocate for gender equality and women’s rights, her importance as a role model for women, and her civility. Indeed, a key piece of her legacy is that she was a jurist in the classic sense of the word: she believed in using coherent legal reasoning to reach a result. And that meant Justice Ginsburg’s decisions sometimes cut against partisan political expectations. 

This is clearly demonstrated in our little corner of the law: RBG frequently voted in the majority on antitrust cases in a manner that—to populist leftwing observers—would be surprising. Moreover, she authored an important case on price discrimination that likewise cuts against the expectation of populist antitrust critics and demonstrates her nuanced jurisprudence.

RBG’s record on the Court shows a respect for the evolving nature of antitrust law

In the absence of written opinions of her own, it is difficult to discern what was actually in Justice Ginsburg’s mind as she encountered antitrust issues. But, her voting record represents at least a willingness to approach antitrust in an apolitical manner. 

Over the last several decades, Justice Ginsburg joined the Supreme Court majority in many cases dealing with a wide variety of antitrust issues, including the duty to deal doctrine, vertical restraints, joint ventures, and mergers. In many of these cases, RBG aligned herself with judgments of the type that the antitrust populists criticize.

The following are major consumer welfare standard cases that helped shape the current state of antitrust law in which she joined the majority or issued a concurrence: 

  • Verizon Commc’ns Inc. v. Law Offices of Curtis Trinko, LLP, 540 U.S. 398 (2004) (unanimous opinion heightening the standard for finding a duty to deal)
  • Pacific Bell Tel. Co v. linkLine Commc’ns, Inc.,  555 U.S. 438 (2009) (Justice Ginsburg joined the concurrence finding there was no “price squeeze” but suggesting the predatory pricing claim should be remanded)
  • Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312 (2007) (unanimous opinion finding predatory buying claims are still subject to the dangerous probability of recoupment test from Brooke Group)
  • Apple, Inc. v. Robert Pepper, 139 S.Ct. 1514 (2019) (part of majority written by Justice Kavanaugh finding that iPhone owners were direct purchasers under Illinois Brick that may sue Apple for alleged monopolization)
  • State Oil Co. v. Khan, 522 U.S. 3 (1997) (unanimous opinion overturning per se treatment of vertical maximum price fixing under Albrecht and applying rule of reason standard)
  • Texaco Inc. v. Dagher, 547 U.S. 1 (2006) (unanimous opinion finding it is not per se illegal under §1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which it sells its products)
  • Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) (unanimous opinion finding a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product)
  • U.S. v. Baker Hughes, Inc., 908 F. 2d 981 (D.C. Cir. 1990) (unanimous opinion written by then-Judge Clarence Thomas while both were on the D.C. Circuit of Appeals finding against the government’s argument that the defendant in a Section 7 merger challenge can rebut a prima facie case only by a clear showing that entry into the market by competitors would be quick and effective)

Even where she joined the dissent in antitrust cases, she did so within the ambit of the consumer welfare standard. Thus, while she was part of the dissent in cases like Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007), and Ohio v. American Express Co., 138 S.Ct. 2274 (2018), she still left a legacy of supporting modern antitrust jurisprudence. In those cases, RBG simply  had a different vision for how best to optimize consumer welfare. 

Justice Ginsburg’s Volvo Opinion

The 2006 decision Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. was one of the few antitrust decisions authored by RBG and shows her appreciation for the consumer welfare standard. In particular, Justice Ginsburg affirmed the notion that antitrust law is designed to protect competition not competitors—a lesson that, as of late, needs to be refreshed. 

Volvo, a 7-2 decision, dealt with the Robinson-Patman Act’s prohibition on price discimination. Reeder-Simco, a retail car dealer that sold Volvos, alleged that Volvo Inc. was violating the Robinson-Patman Act by selling cars to them at different prices than to other Volvo dealers.

The Robinson-Patman Act is frequently cited by antitrust populists as a way to return antitrust law to its former glory. A main argument of Lina Khan’s Amazon’s Antitrust Paradox was that the Chicago School had distorted the law on vertical restraints generally, and price discrimination in particular. One source of this distortion in Khan’s opinion has been the Supreme Court’s mishandling of the Robinson-Patman Act.

Yet, in Volvo we see Justice Ginsburg wrestling with the Robinson-Patman Act in a way to give effect to the law as written, which may run counter to some of the contemporary populist impulse to revise the Court’s interpretation of antitrust laws. Justice Ginsburg, citing Brown & Williamson, first noted that: 

Mindful of the purposes of the Act and of the antitrust laws generally, we have explained that Robinson-Patman does not “ban all price differences charged to different purchasers of commodities of like grade and quality.”

Instead, the Robinson-Patman Act was aimed at a particular class of harms that Congress believed existed when large chain-stores were able to exert something like monopsony buying power. Moreover, Justice Ginsburg noted, the Act “proscribes ‘price discrimination only to the extent that it threatens to injure competition’[.]”

Under the Act, plaintiffs needed to demonstrate evidence of Volvo Inc. systematically treating plaintiffs as “disfavored” purchasers as against another set of “favored” purchasers. Instead, all plaintiffs could produce was anecdotal and inconsistent evidence of Volvo Inc. disfavoring them. Thus, the plaintiffs— and theoretically other similarly situated Volvo dealers— were in fact harmed in a sense by Volvo Inc. Yet, Justice Ginsburg was unwilling to rewrite the Act on Congress’s behalf to incorporate new harms later discovered (a fact which would not earn her accolades in populist circles these days). 

Instead, Justice Ginsburg wrote that:

Interbrand competition, our opinions affirm, is the “primary concern of antitrust law.”… The Robinson-Patman Act signals no large departure from that main concern. Even if the Act’s text could be construed in the manner urged by [plaintiffs], we would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition. In the case before us, there is no evidence that any favored purchaser possesses market power, the allegedly favored purchasers are dealers with little resemblance to large independent department stores or chain operations, and the supplier’s selective price discounting fosters competition among suppliers of different brands… By declining to extend Robinson-Patman’s governance to such cases, we continue to construe the Act “consistently with broader policies of the antitrust laws.” Brooke Group, 509 U.S., at 220… (cautioning against Robinson-Patman constructions that “extend beyond the prohibitions of the Act and, in doing so, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation”).

Thus, interested in the soundness of her jurisprudence in the face of a well-developed body of antitrust law, Justice Ginsburg chose to continue to develop that body of law rather than engage in judicial policymaking in favor of a sympathetic plaintiff. 

It must surely be tempting for a justice on the Court to adopt less principled approaches to the law in any given case, and it is equally as impressive that Justice Ginsburg consistently stuck to her principles. We can only hope her successor takes note of Justice Ginsburg’s example.

In Amazon, Antitrust & Competition, Apple, Constitutional Law, Credit Cards, Financial Regulation, Google, Intellectual Property, Law & Economics, Patent, Platforms, Price Discrimination, Supreme Court, Truth on the Market, Tying, Vertical Restraints , , , , , ,
permalink

The Supreme Court Misses the Mark in Murr v. Wisconsin – It’s High Time to Reconcile Regulatory and Physical Takings Law

Alden Abbott —  26 June 2017
  1. Background: The Murr v. Wisconsin Case

On June 23, in a 5-3 decision by Justice Anthony Kennedy (Justice Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined; Justice Neil Gorsuch did not participate), the U.S. Supreme Court upheld  the Wisconsin State Court of Appeals’ ruling that two waterfront lots should be treated as a single unit in a “regulatory takings” case.  The Murrs are siblings who inherited two adjacent waterfront properties from their parents, and they wanted to sell one of the lots and develop the other.  Unfortunately for the Murrs, the lots had been merged under local zoning regulations, and the local county board of assessments denied the Murrs’ request for a zoning variance to allow their plan to proceed.

The Murrs challenged this in state court, arguing that the state had effectively taken their second property by depriving them of practically all use without paying just compensation, as required by the Takings Clause of the Fifth Amendment.  Affirming a lower state court, the Wisconsin Appeals Court held that the takings analysis properly focused on the two lots together and that, using that framework, the merger regulations did not effectuate a taking.

The U.S. Supreme Court granted the Murrs’ writ of certiorari.  The Supreme Court found that in determining what the relevant unit of property is, courts must ask whether the owner would have a reasonable expectation to believe the property would be treated as a single or separate units.  The Court held that in regulatory takings assessments courts must give substantial weight to how state and local law treat the property, evaluate the property’s physical characteristics, and assess the property’s value under the challenged regulation.  The majority concluded that with regard to the Murrs’ property, there was a valid merger under state law, the terrain and shape of the lots made it clear that the merged lot’s use might be limited, and the second lot brought prospective value to the first. Thus, the lots should be treated as one parcel and they did not suffer a compensable taking, since the Murrs were not deprived of all economically beneficial use of the property.

Chief Justice John Roberts dissented (joined by Justices Clarence Thomas and Samuel Alito), noting that the Takings Clause protects private property rights “as state law created and defines them” and the majority’s “malleable definition of ‘private property’…undermines that protection.”  Thus, “[s]tate law defines the boundaries of distinct parcels of land, and those boundaries should determine the ‘private property’ at issue in regulatory takings cases.  Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account.”

The always thoughtful Justice Thomas penned a separate dissent, suggesting that the Court should reconsider its regulatory takings jurisprudence to see “whether it can be grounded in the original public meaning” of the relevant constitutional provisions.

  1. The Supreme Court Should Reject the Confusing Dichotomy Between Physical and Regulatory Takings and Apply a Simpler Uniform Standard, One that Better Protects the Property Interests Safeguarded by the Fifth Amendment’s Takings Clause

Unfortunately, far from clarifying regulatory takings analysis, the Murr decision further muddies the doctrinal waters in this area.  Justice Kennedy’s majority decision creates a new inherently ambiguous balancing test that gives substantial leeway to localities to adjust regulatory demarcations and property line divisions without paying compensation to harmed property owners.

Although the three-Justice dissent sets forth a more full-throated paean to property rights, it does little to clarify how to determine when a regulatory taking occurs.  Instead, it approvingly cites prior less than helpful Supreme Court pronouncements on the topic:

Governments can infringe private property interests for public use not only through   [direct] appropriations, but through regulations as well. . . .  Our regulatory takings decisions . . .  have recognized that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”  This rule strikes a balance between property owners’ rights and the government’s authority to advance the common good. Owners can rest assured that they will be compensated for particularly onerous regulatory actions, while governments maintain the freedom to adjust the benefits and burdens of property ownership without incurring crippling costs from each alteration. . . .  For the vast array of regulations that [do not deny all economically beneficial or productive use of land and thus automatically constitute a taking,] . . . a flexible approach is more fitting.  The factors to consider are wide ranging, and include the economic impact of the regulation, the owner’s investment-backed expectations, and the character of the government action.  The ultimate question is whether the government’s imposition on a property has forced the owner “to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” 

Such a weighing of “wide-ranging factors” to determine whether or not a taking has occurred is inherently subjective and prone to manipulation by local authorities.  It enables them to marshal a list of Court-approved phrases to explain why a regulation does not go “too far” and take property – even though it may substantially destroy property value.

What is missing from the opinions in Murr is the recognition that any substantial net reduction in the value of a piece of property (subdivided or not) takes a certain property interest.  It is black letter law that there is not a single undivided property right inhering in an item of property, but, rather, multiple property interests – a “bundle of sticks” – that can be taken in whole or in part.  Under current Supreme Court jurisprudence, if the government directly seizes (or physically occupies) a particular stick, compensation is owed for the reduction in overall property value stemming from that stick’s loss.  This is the case of a physical “per se” taking.  But if the government instead enacts a rule preventing that stick from being sold or embellished by the bundle’s owner (think of the Murrs’ plan to sell one plot and develop the other), the owner likewise suffers similar reduced overall property value due to restrictions on the stick.  Under existing Supreme Court case law, however, the loss in value in the second case, unlike the first case, may well not be compensable, because the owner has not been deprived “of all beneficial use” of the overall property.  Supreme Court case law indicates that a taking may exist in the second case, depending upon a regulation’s impact, its interference in investment-backed expectations, and the character of its actions.  As a practical matter, this infelicitous, indeterminate balancing test very seldom results in a taking being found.  As a result, government is incentivized to invade property rights by using regulations, rather than physical appropriations, thereby undermining the Taking Clause’s requirement that “private property [not] be taken for public use, without just compensation.”

There is a far better way to deal with the problem of government regulatory intrusions on private property rights, one that recognizes that regulatory deprivation of any stick in the bundle should be compensable.  Professor Richard Epstein, distinguished property law scholar extraordinaire, points the way in his very recent article posted at the NYU Journal of Law and Liberty blog 18 days before Murr was handed down.  While Professor Epstein’s brilliant essay merits a close read, his key points are as follows:

I have used the occasion of yet another takings case before the Supreme Court, Murr v. Wisconsin, to comment on the structure of the takings law as it is, and as it ought to be.  On the former count, it is quite clear that the entire structure of the modern law of physical and regulatory takings tends to fixate on the ratio of the value of property rights taken to the value of the full bundle of rights before the regulation was put into place.  But there is no explanation as to why this ratio has any significance in light of the standard rule in physical-takings cases that the fair market value of the rights taken affords the correct measure of compensation so long as the taking is for a public use when no police-power justification is available.  Within this peculiar framework, it is a mistake to make the right of compensation for the loss of development rights under the Wisconsin ordinance turn on the technicalities of the chain of title to a particular plot.  This seems a uniquely inappropriate reason to deny compensation for the loss of development rights.

Any analysis of Murr is inherently messy, and it leaves open the endless challenge of reconciling this case with a wide range of other cases that cannot decide whether two contiguous parcels held by different titles can be a collective denominator in takings cases.  [But] . . . the muddle and confusion of the current law is largely obviated by the simple proposition that, prima facie, the more the government takes, the more it pays.  That rule applies to the outright taking of any given parcel of land or to the taking of a divided interest in property. In all of these cases, the shifts in what is taken do not create odd and indefensible discontinuities, but only raise valuation questions as to the size of the loss, taking into account any return benefits that a property owner may receive when the taking is part of some comprehensive scheme. But those issues are routinely encountered in all physical-takings cases. In all instances, police-power justifications, tied closely to the law of nuisance, may be invoked, and in cases of comprehensive regulation, courts must be alert to determine whether the scheme that takes rights away also affords compensation in-kind from the parallel restrictions on others in the scheme. Under this view, the full range of divided interests, be they air rights, mineral rights, liens, covenants, or easements, are fully compensable. The untenable discontinuities under current doctrine disappear.

Let us hope that in the future, the Supreme Court will take to heart Justice Thomas’s recommendation that the Court return to first principles, and, in so doing, seriously consider the economically and jurisprudentially sophisticated analysis adumbrated in Professor Epstein’s inspired essay.                  

In Constitutional Law, Supreme Court, Truth on the Market , , , ,
permalink

The Demise of Lanham Act Trademark Disparagement Limitations Promotes Sound Free Market Economic Principles

Alden Abbott —  19 June 2017
  1. Background

On June 19, in Matal v. Tam, the U.S. Supreme Court (Justice Gorsuch did not participate in the case) affirmed the Federal Circuit’s ruling that the Lanham Act’s “disparagement clause” is unconstitutional under the First Amendment’s free speech clause.  The Patent and Trademark Office denied the Slants’ (an Asian rock group) federal trademark registration, relying on the Lanham Act’s prohibition on trademarks that “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  The Court held that trademarks are not government speech, pointing out that the government “does not dream up these marks.”  With the exception of marks scrutinized under the disparagement clause, trademarks are not reviewed for compliance with government policies.  Writing for the Court, Justice Samuel Alito (joined by Chief Justice John Roberts, Justice Clarence Thomas, and Justice Stephen Breyer) found unpersuasive the government’s argument that trademarks are analogous to subsidized speech.  The Alito opinion also determined that it is unnecessary to determine whether trademarks are commercial speech (subject to lesser scrutiny), because the disparagement clause cannot survive the Supreme Court’s test for such speech enunciated in Central Hudson Gas & Electric Company (1980).  Justice Anthony Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, concurred in the judgment.  The Kennedy opinion agreed that the disparagement clause constitutes viewpoint discrimination because it reflects the government’s disapproval of certain speech, and that heightened scrutiny should apply, whether or not trademarks are commercial speech.

The Tam decision continues the trend of Supreme Court cases extending First Amendment protection for offensive speech.  Perhaps less likely to be noted, however, is that this decision also promotes free market principles by enhancing the effectiveness of legal protection for a key intellectual property right.  To understand this point, a brief primer on the law and economics of federal trademark protection is in order.

  1. The Law and Economics of Federal Trademark Protection in a Nutshell

A trademark (called a service mark in the case of a service) is an intellectual property right that identifies the source of a particular producer’s goods or services.  Trademarks reduce transactions costs by enabling consumers more easily to identify and patronize particular goods and services whose attributes they associate with a trademark.  This enhances market efficiency, by lowering information costs in the market and by encouraging competing firms to develop unique attributes that they can signal to consumers.

By robustly protecting federally-registered trademarks, the federal Lanham Act (see here for Lanham Act trademark infringement remedies) creates strong incentives for each trademark holder to invest in (and promote through advertising and other means) the quality of the trademarked goods or services it produces.  Strong trademark remedies are key because they promote the market-based interest in ensuring trademark holders that their individual property rights will be protected.  As one scholar puts it, “[i]t is generally accepted that [federal trademark] infringement actions protect both the goodwill of mark owners and competition by preventing confusion.”

Shielded by firm legal protection, the trademark holder will tend not to allow the quality of its trademark-protected offerings to slip, knowing that consumers will quickly and easily associate the reduced quality with its mark and stop patronizing the trademarked product or service.  Absent strong trademark protection, however, producers of competing products and services will be tempted to “free ride” by using a competing business’s registered trademark without authorization.  This sharply reduces the original trademark owner’s incentive to invest in and continue to promote quality, because it knows that the free riders will seek to attract customers by using the trademark to sell less costly, lower quality fare.  Quality overall suffers, to the detriment of consumers.  Allowing free riding on distinctive trademarks also (and relatedly) sows confusion as to the identity of sellers and as to the attributes covered by a particular trademark, leading to a weakening of the trademark system’s role as a source identifier and as a spur to attribute-based competition.

In short, federal trademark law protection, embodied in the Lanham Act, enhances free market competitive processes by protecting a trademark’s role in identifying suppliers (reducing transaction costs); incentivizing investment in the enhancement and preservation of product quality; and spurring attribute-based competition.

  1. The Demise of Lanham Act Disparagement Enhances Trademark Rights and Promotes Free Market Principles

The disparagement clause denied federal legal protection to a broad class of trademarks, based merely on the highly subjective determination by federal bureaucrats that the marks in question “disparaged” particular individuals or institutions.  This denial undermined private parties’ incentives to invest in “disparaging” marks, and to compete vigorously by signaling to consumers the existence of novel products and services that they might find appealing.

By “constitutionally expunging” the disparagement clause, the Supreme Court in Tam has opened the gateway to more robust competition by spurring the vigorous investment in and promotion of a larger number of marks.  Consumers in the marketplace, not bureaucrats, will decide whether the products or services identified by particular marks are “problematic” and therefore not worthy of patronage.  In other words, by enhancing legal protection for a wider variety of trademarks, the Tam decision has paved the way for the expansion of mutually-beneficial marketplace transactions, to the benefit of consumers and producers alike.

To conclude, in promoting First Amendment free speech interests, the Tam Court also gave a shot in the arm to welfare-enhancing competition in markets for goods and services.  It turns out that competition in the marketplace of ideas goes hand-in-hand with competition in the commercial marketplace.

In Constitutional Law, First Amendment, Intellectual Property, Patent, Supreme Court, Truth on the Market , , ,
permalink

George Mason University School of Law to be Renamed “Antonin Scalia School of Law at George Mason University”

Adam Mossoff —  31 March 2016

I am sharing the press release below:

George Mason University receives $30 million in gifts, renames School of Law after Justice Antonin Scalia

Largest combined gift in university’s history will support new scholarship programs

Arlington, VA— George Mason University today announces pledges totaling $30 million to the George Mason University Foundation to support the School of Law.  The gifts, combined, are the largest in university history. The gifts will help establish three new scholarship programs that will potentially benefit hundreds of students seeking to study law at Mason.

In recognition of this historic gift, the Board of Visitors has approved the renaming of the school to The Antonin Scalia School of Law at George Mason University.

“This is a milestone moment for the university,” said George Mason University President Ángel Cabrera. “These gifts will create opportunities to attract and retain the best and brightest students, deliver on our mission of inclusive excellence, and continue our goal to make Mason one of the preeminent law schools in the country.”

Mason has grown rapidly over the last four decades to become the largest public research university in Virginia. The School of Law was established in 1979 and has been continually ranked among the top 50 law programs in the nation by U.S. News and World Report.

Justice Scalia, who served 30 years on the U.S. Supreme Court, spoke at the dedication of the law school building in 1999 and was a guest lecturer at the university.  He was a resident of nearby McLean, Virginia.

Justice Ruth Bader Ginsburg, his esteemed colleague on the Supreme Court for more than two decades, said Scalia’s opinions challenged her thinking and that naming the law school after him was a fine tribute.

“Justice Scalia was a law teacher, public servant, legal commentator, and jurist nonpareil. As a colleague who held him in highest esteem and great affection, I miss his bright company and the stimulus he provided, his opinions ever challenging me to meet his best efforts with my own. It is a tribute altogether fitting that George Mason University’s law school will bear his name. May the funds for scholarships, faculty growth, and curricular development aid the Antonin Scalia School of Law to achieve the excellence characteristic of Justice Scalia, grand master in life and law,” added Ginsburg.

“Justice Scalia’s name evokes the very strengths of our school: civil liberties, law and economics, and constitutional law,” said Law School Dean Henry N. Butler. “His career embodies our law school’s motto of learn, challenge, lead. As a professor and jurist, he challenged those around him to be rigorous, intellectually honest, and consistent in their arguments.”

The combined gift will allow the university to establish three new scholarship programs to be awarded exclusively and independently by the university:

Antonin Scalia Scholarship – Awarded to students with excellent academic credentials.

A. Linwood Holton, Jr. Leadership Scholarship – Named in honor of the former governor of the Commonwealth of Virginia, this scholarship will be awarded to students who have overcome barriers to academic success, demonstrated outstanding leadership qualities, or have helped others overcome discrimination in any facet of life.

F.A. Hayek Law, Legislation, and Liberty Scholarship – Named in honor of the 1974 Nobel Prize winner in economics, this scholarship will be awarded to students who have a demonstrated interest in studying the application of economic principles to the law.

“The growth of George Mason University’s law school, both in size and influence, is a tribute to the hard work of its leaders and faculty members,” said Governor Terry McAuliffe. “I am particularly pleased that new scholarship awards for students who face steep barriers in their academic pursuits will be named in honor of former Virginia Governor Linwood Holton, an enduring and appropriate legacy for a man who championed access to education for all Virginians.”

The scholarships will help Mason continue to be one of the most diverse universities in America.

“When we speak about diversity, that includes diversity of thought and exposing ourselves to a range of ideas and points of view,” said Cabrera. “Justice Scalia was an advocate of vigorous debate and enjoyed thoughtful conversations with those he disagreed with, as shown by his longtime friendship with Justice Ginsburg. That ability to listen and engage with others, despite having contrasting opinions or perspectives, is what higher education is all about.”

The gift includes $20 million that came to George Mason through a donor who approached Leonard A. Leo of the Federalist Society, a personal friend of the late Justice Scalia and his family.  The anonymous donor asked that the university name the law school in honor of the Justice. “The Scalia family is pleased to see George Mason name its law school after the Justice, helping to memorialize his commitment to a legal education that is grounded in academic freedom and a recognition of the practice of law as an honorable and intellectually rigorous craft,” said Leo. 

The gift also includes a $10 million grant from the Charles Koch Foundation, which supports hundreds of colleges and universities across the country that pursue scholarship related to societal well-being and free societies.

“We’re excited to support President Cabrera and Dean Butler’s vision for the Law School as they welcome new students and continue to distinguish Mason as a world-class research university,” said Charles Koch Foundation President Brian Hooks.

The name change is pending approval from the State Council of Higher Education for Virginia.

A formal dedication ceremony will occur in the fall.

About George Mason

George Mason University is Virginia’s largest public research university. Located near Washington, D.C., Mason enrolls more than 33,000 students from 130 countries and all 50 states. Mason has grown rapidly over the past half-century and is recognized for its innovation and entrepreneurship, remarkable diversity, and commitment to accessibility.

About the Mason School of Law

The George Mason University School of Law is defined by three words: Learn. Challenge. Lead. The goal is to have students who will receive an outstanding legal education (Learn), be taught to critically evaluate prevailing orthodoxy and pursue new ideas (Challenge), and, ultimately, be well prepared to distinguish themselves in their chosen fields (Lead).

About Faster Farther—The Campaign for George Mason University

Faster Farther is about securing Mason’s place as the intellectual cornerstone of our region and a global leader in higher education. We have a goal to raise $500 million through 2018.       

 

In Constitutional Law, Supreme Court, Truth on the Market , , , , , , ,
permalink

One Step Forward: The Supremes Add Some Bite to Environmental Cost-Benefit Analysis

Alden Abbott —  29 June 2015

Today, in Michigan v. EPA, a five-Justice Supreme Court majority (Antonin Scalia, joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, with Thomas issuing a separate concurrence) held that the Clean Air Act requires the Environmental Protection Agency (EPA) to consider costs, including the cost of compliance, when deciding whether to regulate hazardous air pollutants emitted by power plants.  The Clean Air Act, 42 U. S. C. §7412, authorizes the EPA to regulate emissions of hazardous air pollutants from certain stationary sources, such as refineries and factories.  The EPA may, however, regulate power plants under this program only if it concludes that such regulation is “appropriate and necessary” after studying hazards to public health posed by power-plant emissions, 42 U.S.C. §7412(n)(1)(A).  EPA determined that it was “appropriate and necessary” to regulate oil- and coal-fired power plants, because the plants’ emissions pose risks to public health and the environment and because controls capable of reducing these emissions were available.  (The EPA contended that its regulations would have ancillary benefits (including cutting power plants’ emissions of  particulate matter and sulfur dioxide) not covered by the hazardous air pollutants program, but conceded that its estimate of benefits “played no role” in its finding that regulation was “appropriate and necessary.”)  The EPA refused to consider costs when deciding to regulate, even though it estimated that the cost of its regulations to power plants would be $9.6 billion a year, but the quantifiable benefits from the resulting reduction in hazardous-air-pollutant emissions would be $4 to $6 million a year.  Twenty-three states challenged the EPA’s refusal to consider cost, but the U.S. Court of Appeals for the D.C. Circuit upheld the agency’s decision not to consider costs at the outset.  In reversing the D.C. Circuit, the Court stressed that EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.  Read naturally against the backdrop of established administrative law, the phrase “appropriate and necessary” plainly encompasses cost, according to the Court.

In a concurring opinion, Justice Thomas opined that this case “raises serious questions about the constitutionality of our broader practice of deferring to agency interpretations of federal statutes.”  Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonya Sotomayor, dissented, reasoning that EPA “acted well within its authority in declining to consider costs at the [beginning] . . . of the regulatory process given that it would do so in every round thereafter.”

Although the Supreme Court’s holding merits praise, it is inherently limited in scope, and should not be expected to significantly constrain regulatory overreach, whether by the EPA or by other agencies.  First, in remanding the case, the Court did not opine on the precise manner in which costs and benefits should be evaluated, potentially leaving EPA broad latitude to try to reach its desired regulatory result with a bit of “cost-benefit” wordsmithing.  Such a result would not be surprising, given that “[t]he U.S. Government has a strong tendency to overregulate.  More specifically, administrative agencies such as EPA, whose staffs are dominated by regulatorily-minded permanent bureaucrats, will have every incentive to skew judicially-required “cost assessments” to justify their actions – based on, for example, “false assumptions and linkages, black-box computer models, secretive collusion with activist groups, outright deception, and supposedly ‘scientific’ reports whose shady data and methodologies the agency refuses to share with industries, citizens or even Congress.”  Since, as a practical matter, appellate courts have neither the resources nor the capacity to sort out legitimate from illegitimate agency claims that regulatory programs truly meet cost-benefit standards, it would be naïve to believe that the Court’s majority opinion will be able to do much to rein in the federal regulatory behemoth.

What, then, is the solution?  The concern that federal administrative agencies are being allowed to arrogate to themselves inherently executive and judicial functions, a theme previously stressed by Justice Thomas, has not led other justices to call for wide-scale judicial nullification or limitation of expansive agency regulatory findings.  Absent an unexpected Executive Branch epiphany, then, the best bet for reform lies primarily in congressional action.

What sort of congressional action?  The Heritage Foundation has described actions needed to help stem the tide of overregulation:  (1) require congressional approval of new major regulations promulgated by agencies; (2) establish a sunset date for federal regulations; (3) subject “independent” agencies to executive branch regulatory review; and (4) develop a congressional regulatory analysis capability.  Legislative proposals such as the REINS Act (Regulations from the Executive in Need of Scrutiny Act of 2015), would meet the first objective, while other discrete measures could advance the other three goals.  Public choice considerations suggest that these reforms will not be easily achieved (beneficiaries of the intrusive regulatory status quo may be expected to vigorously oppose reform), but they nevertheless should be pursued posthaste.

In Administrative Law, Constitutional Law, Regulation, Supreme Court , , , , ,
permalink

Feingold-Kyl Update

Josh Wright —  14 February 2008

A few months ago I commented on the absurdity of the Feingold-Kyl amendment to the judicial pay raise bill, which appeared to be a thinly veiled attempt to target the George Mason Law and Economics Center and a few others. The absurdity with which I was particularly interested at the time was the fact that events sponsored by the bar association and state governments were exempted and so, because of the high demand for these programs, the likely impact of the amendment on the total number of these programs would be trivial. Rather, I thought it fairly transparent that the intended impact of the bill was not to reduce judicial access to these programs but to favor certain providers over others. There is also the notion that somehow judges are becoming wealthy as a result of these programs or that the programs do not generate social good — but I digress. Back to the update.

John Fund summarizes the state of affairs as they stood on December 17, 2007 quite thoroughly here. For those who need a reminder about the contents of the amendment, Doug Lederman at Inside Higher Ed sums up the bill as it currently stands (and provides a link to the actual text):

First, it would prohibit [judges] from accepting any sort of gift, income or even travel reimbursement from programs designed to educate federal or state judges, except for programs sponsored by a bar association, a judicial association, or a government. (Programs at public universities are exempted from the exemption, and so are barred, as are private colleges.) Feingold’s amendment would also limit to $2,000 the amount that a judge or justice could receive in income or reimbursement from any “single trip or event” sponsored by any entity but a bar or judicial association or a federal, state or local government. Again, public colleges, like private ones, would be subject to the limit, and a judge would have a maximum annual limit of $20,000 in such reimbursements.

As Lederman notes in his column, things have changed. First, the amendment appears to be losing its political legs. The article notes that Senator Kyl, previously a named sponsor, has “vowed to oppose the entire judges’ pay bill if the Feingold amendment stays attached to it.” Next, the American Law Deans Association, led by Northwestern Law Dean David Van Zandt, is speaking out against the amendment in the form of a letter to Senate Majority Leader Harry Reid. The Judical Conference of the United States has also unsurprisingly chimed in against the amendment. I have no idea what political bargain might be struck with respect to the judicial pay raise bill and the Feingold amendment, but I do hope that for the sake of law schools public and private that the amendment will soon disappear and it looks like things are happily moving that direction.

Lederman’s column includes a quote from my colleague and George Mason Law and Economics Center Executive Director Frank Buckley explaining that the LEC “is by no means ideological” and that expressing disappointment that “a highly academic program, which has a list of donors and supporters from all over the political spectrum, gets singled out.” For anyone skeptical of Buckley’s description of LEC program content, please go check out the programs at LEC for yourselves. They really do speak for themselves. But allow me to allow Buckley to speak for them (from his comment on a VC post in 2006, but still pertinent to the discussion):

Does it matter that the Mason lecturers are the leading scholars anywhere, that its readings are posted on its web site, that no one has or could have a problem with them, that people like Larry Kramer, Gordon Wood, John Searle, David Bromwich, Jasper Griffin, Joe Ellis, Cass Sunstein and Marcia Angell lecture for it, that without Mason lecturers the NYRB would have trouble publishing, that lecturers are asked to stay away from hot button topics, that global warming, environmental issues, asbestosis, abortion, tobacco, etc. are simply not mentioned in Mason programs, that no judge has ever complained of the content of the programs or lectures? Does it matter that the programs are academically intensive, that there are no entertainment or hospitality events? Does it matter that judges such as Ruth Bader Ginsburg have praised our programs? And does it matter that Mason programs this year are on subjects as varied as Renaissance Humanism, David Hume, Abraham Lincoln, and the principles of microeconomics? Because if none of that matters, the complaints can be made only by bitter ideologues blinded by an ignorance of or animus against the life of the mind.

*Disclosure: As I’ve noted previously when discussing this topic, I have received summer research money from the LEC in the past.

In Constitutional Law, Law & Economics, Regulation, Supreme Court , ,
permalink

National Review on Judicial Ethics and GMU's Law and Econ Center

Josh Wright —  29 June 2006

This National Review editorial defends George Mason’s Law and Economics Center from what it describes as “junk ethics” charges.  My colleague Ilya Somin has picked up the story at Volokh.  In the comments to Ilya’s post, GMU Foundation Professor and Associate Dean Frank Buckley, Director of the LEC, responds to some of the charges that have been directed at the LEC (i.e. corporate donations are buying judges votes, anonymous donors allow corporations to do so freely, the lectures are part of a right-wing conspiracy, etc.):

At this point corporate support is less than 10% of total support for the Mason judges program. That’s not surprising when you consider that the last program was on Samuel Johnson and the next one is on Mathew Arnold and High Culture. Or is all corporate support bad? In which case, you’ll have a problem with the Lyric Opera, not to mention every American university. 

As for keeping the identity of donors confidential, and keeping them wholly away from the judges, can anyone seriously suggest that this is troubling? You want them to schmooze with the judges, the way lobbyists do with Congressmen? That’s supposed to be the ethical thing to do? It’s a good deal harder to show appreciation for a donor if you don’t know his name. 

Does it matter that the Mason lecturers are the leading scholars anywhere, that its readings are posted on its web site, that no one has or could have a problem with them, that people like Larry Kramer, Gordon Wood, John Searle, David Bromwich, Jasper Griffin, Joe Ellis, Cass Sunstein and Marcia Angell lecture for it, that without Mason lecturers the NYRB would have trouble publishing, that lecturers are asked to stay away from hot button topics, that global warming, environmental issues, asbestosis, abortion, tobacco, etc. are simply not mentioned in Mason programs, that no judge has ever complained of the content of the programs or lectures? Does it matter that the programs are academically intensive, that there are no entertainment or hospitality events? Does it matter that judges such as Ruth Bader Ginsburg have praised our programs? And does it matter that Mason programs this year are on subjects as varied as Renaissance Humanism, David Hume, Abraham Lincoln, and the principles of microeconomics? Because if none of that matters, the complaints can be made only by bitter ideologues blinded by an ignorance of or animus against the life of the mind.

*In the interests of full disclosure, I have received summer research support from the LEC.

In Constitutional Law, Law & Economics, Supreme Court, Truth on the Market , ,
permalink