The Healing Power of Antitrust

Millions of Americans live in hospital deserts—communities where people lack geographic access to hospitals and primary care physicians. People living in these deserts often miss doctor appointments, delay necessary care, and stop adhering to their treatment. In this way, hospital deserts exacerbate the health disparities plaguing America. This Article demonstrates that hospital deserts are not inevitable but the result of several business strategies—including noncompete agreements and merging with competitors—and antitrust enforcers’ unwillingness to recognize these harmful practices as antitrust violations. To cure the issue of hospital deserts, this Article makes three proposals. First, antitrust enforcers and the courts should expand their merger analyses to include hospital mergers’ impact on labor markets. Second, enforcers should treat all noncompete agreements in the healthcare sector as per se illegal. Third, they should accept mergers in rural areas only under the condition that the merged entity will not shut down facilities or cut healthcare services so as to create a hospital desert. By implementing these proposals, antitrust enforcers and the courts can help mitigate the racial and health inequities that currently undermine the social, moral, and economic fabric of America

Peeping Town: Drone Surveillance and the Exclusionary Rule in Long Lake Township v. Maxon

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan Supreme Court, which recently declined to address whether the drone surveillance constituted a search. Instead, it held that the exclusionary rule––a remedial device that bars the use of evidence obtained in violation of the Fourth Amendment from certain proceedings––did not apply. Thus, even if the evidence was collected in violation of the resident’s Fourth Amendment rights, the evidence was deemed admissible in the zoning proceeding. This Comment examines Long Lake Township v. Maxon, arguing that the Michigan Supreme Court erred in both its exclusionary rule analysis and its failure to decide the search issue. It also explores the decision’s nationwide implications

Louboutin Lawfare: Exploring Conceptions of Sanctions\u27 Utility Through Export Controls on Luxury Goods

There is widespread consensus amongst scholars that sanctions—the deliberate withdrawal of customary trade and financial relations—do not work. Despite this perception, states are deploying sanctions at an increasing rate. This Article explains this paradox by arguing the predominant notion of sanctions’ utility employed by scholars is unduly constrained, narrowly focusing on the ability of such measures to modify the behavior of sanctioned parties while disregarding the alternative benefits this instrument can deliver. To support this argument, this Article uses export controls on luxury goods deployed in connection with the Russo–Ukraine War as a case study. Under prevailing perceptions of sanctions’ utility, these measures would be considered unsuccessful on their face—it is unlikely constraining access to luxury goods would end the war. Yet the export controls were levied nonetheless. To explain the deployment of these and other sanctions, this Article asserts sanctions offer a wide range of benefits beyond behavioral modification. Drawing on international relations theory, it examines how such measures can be used to shape international law, send important messages to domestic and foreign audiences, internalize international norms amongst domestic constituencies, and impact the relative balance of power between sanctioned and sanctioner. In doing so, this Article offers a descriptive account that not only explains the contradiction at the heart of sanctions usage—a contradiction prevailing discourse has not meaningfully addressed—but presents a starting point for a paradigm shift in conceptions of sanctions’ utility that will enable a more pragmatic understanding, evaluation, and usage of sanctions

Taking Back Control: Using the Takings Clause to Hold Animal Agriculture Responsible for Its Waste Problem

Between the mid-twentieth century and modern day, the animal-agriculture model has shifted from small farms to industrial operations. During that evolution, the negative externalities of animal-farming practices have intensified. One of those externalities—animal waste—has become particularly problematic. Because of the sheer number of animals raised in the United States for slaughter and dairy production, the magnitude of animal waste produced is overwhelming. To deal with this problem, animal farmers often liquefy the animal waste and then spray it onto open fields. In that spraying process, liquefied animal waste carries through the air and reaches nearby homes, coating those properties with manure and odor. Historically, this spraying was unnecessary: farmers did not have such large operations creating such immense waste. However, as these operations grew, so did the need to find alternative solutions. Alongside those solutions came protections for the externalities they created: all fifty states largely prohibit nuisance suits against animal-agriculture operations. This has left communities without a method to legally protect themselves from the spraying nuisance. Further, the members of these communities are often unable or unwilling to leave their homes, many of which have been in their families for generations, long predating the spraying operations. These communities deserve an alternative method by which they can obtain justice and compensation for bearing the negative externalities of American meat and dairy production. One such option is the Takings Clause. To engage in this manure spraying, many farmers must obtain a permit under the Clean Water Act. This Note argues that a permit granting farmers the right to spray manure should be considered a government authorization to occupy their neighbors’ properties and significantly lower the value of their homes. In receiving just compensation for these regulatory takings, affected communities will not only find some financial justice, but also hold the government and farms accountable for the negative externalities that they impose on marginalized people

The Forgotten Fundamental Right to Free Movement

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court. This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article begins by tracing the right to free movement from the Magna Carta, through Blackstone’s Commentaries, colonial America, early state constitutions, and the ratification of the Fourteenth Amendment. As this analysis shows, repressive governments have routinely sought to limit movement across and within boundaries. But the English and U.S. legal traditions are marked by repeated affirmations of the right—there is strong and persistent historical support for a fundamental right to free movement. This Article then turns to judicial discussions of movement rights, both historical and contemporary. Drawing on several previously unconnected lines of decision, this examination surfaces a vibrant picture of the fundamental right to free movement recognized by the courts, including the U.S. Supreme Court. Given its firm foundation and expansive reach, this is a right that should be applied regularly—to anti-gender-affirming-care or anti-abortion laws targeting travel, to quarantine restrictions locking down a community, and to any of the wide variety of other restrictions limiting free movement

Do AIs Dream of Electric Boards?

When artificial intelligence (AI) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer upon AI the status of legal personhood, as it did upon traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such a future is desirable only if AI as manager creates more value than AI as tool or android serf. The principle of legal personhood is not intrinsically incompatible with the idea of machine person. This Article explores the legal, policy, and economic questions: Could we confer legal personhood on AI? Should we? This Article answers that the idea of AI as manager, qua legal person, is compelling. Economic and legal theories suggest that the conferral of AI personhood, permitting AI as manager, would create more value. With respect to law and policy, current laws of business firms suffice to provide the essential framework for the future. They mandate that corporate managers must be natural persons, but permit managers of noncorporate firms to be legal persons. This dichotomy provides the appropriate conceptual compromise. The use of AI as manager should be limited to private and noncorporate firms. This compromise, coupled with the limiting conditions identified in this Article, reflects the balances of cost and benefit as well as risk and value. Corporations have always been more consequential enterprises, and permitting AI to serve as corporate officers or directors could impose greater social and economic externalities. Legal personhood of AI would usher in a brave new world, which should be welcomed in the spirit of innovation—but the law should ensure a stable old world

The Business Judgment Rule in Stakeholder Capitalism

The tension between shareholder primacy and stakeholder capitalism embodies a fundamental debate about the purpose of a corporation. These two perspectives offer contrasting views on whether a company should primarily serve the interests of its shareholders or consider the broader spectrum of stakeholders in its decision-making process, taking into account environmental, social and governance factors alongside financial performance. The Dodd-Berle debate from the 1930s and Milton Friedman’s teachings in the 1970s regarding the purpose of a corporation and the tension between shareholder primacy and stakeholderism have been reinvigorated. On the one hand, ESG considerations have become increasingly important in risk mitigation and shareholder value protection, since externalities are becoming more extreme, requiring urgent coordinated action that cannot be handled by government regulation alone. If not addressed, these issues could create systemic risks impacting all businesses at once. Stakeholder capitalism nonetheless receives criticism for its flaws in capital allocation, unclear measurement and disclosure, lack of accountability, negative impact on financial performance, and distraction from the need for government regulation. Certain extreme situations of stakeholder-centric decisions that cannot be reconciled with value creation for shareholders could potentially constitute a breach of management’s duty of loyalty if they involve self-dealing or conflict of interest situations, resulting in the unavailability of the business judgment rule protection. Under the current law, a self-dealing situation arises only when it involves a direct financial interest of the manager, but not in cases of indirect or intangible interest where the manager is motivated by her own prestige and reputational benefit (for example, when a director favors a certain constituency group with whom she has a personal alignment or sympathy, when she uses corporate funds to advance an agenda or cause important to her, when she offers corporate support and funding to a party of her political affiliation, or when she makes a corporate donation to a museum or school that will name an exhibition or building after her). In these situations of non-financial conflicts of interests, there should be additional precautions to protect against wrongful use of corporate resources because market forces may not provide a satisfactory solution, as discussed in this paper. In most cases, the market will respond to stakeholder-driven decisions that allegedly destroy shareholder value by stock sales and price declines (exit), through purchase of control (takeovers) or through proxy fights to replace management or advance shareholder proposals (voice). However, in case of controlled companies with dominant shareholders or privately-held companies with no liquidity, the exit, takeover and voice remedies may not be available. In such circumstances, directors should always conduct a cost-benefit analysis, explain the value created to shareholders from stakeholder-friendly decisions, and disclose in general terms the basis for such decisions. Whenever possible, boards should seek the approval of disinterested directors or shareholders when decisions could reasonably trigger an indirect conflict of interest or personal benefit situation. Without necessarily triggering judicial review under the entire fairness rule, courts should be permitted to review the facts and circumstances, make a proportionality assessment, and require compliance with procedural prophylactic steps. The author advocates for a system that would require managers to engage in good faith attempts to identify all constituencies involved, to quantify and reconcile the impacts on each constituency, and to explain why they believe that a decision favoring a nonshareholder constituency ultimately brings long-term value to the corporation and the shareholders. The author also supports a system of enhanced disclosure whereby the market, in possession of clear and verifiable cost-benefit analysis information, would curb companies and managers taking excessively stakeholder-friendly decisions at the cost of the trading price of their shares. Finally, clarity about the purpose of a given corporation is paramount, and companies should describe in their organizational documents if they intend to serve the interests of stakeholders other than shareholders, and the process by which the board will mediate prospective conflicts between stakeholders and shareholders. Clear, well-structured, and properly executed stakeholder-friendly decisions will likely create long-term value to shareholders and are germane to the shareholder primacy doctrine, but impulsive, poorly structured decisions taken by managers seeking personal reputation and recognition will often translate into destruction of shareholder value and therefore should be deterred by the law

Future Market Blueprints: Harnessing Artificial Intelligence in a World Wired for Wonder

George, Jane, and the gang from The Jetsons promised us the dream to soar with flying cars. Well, we move forward with self-driving cars. Robot maids? Well, we got a handy dandy Roomba. The Turn-off-the-Boss Button? Well, we have screen share toggling and the mute button. What each of these examples has in common is artificial intelligence (AI). According to some estimates, AI and its innovation have the potential to boost the global economy by trillions of dollars a year, revolutionizing society in the process. In this process comes progress, but also worry and questions, law and intervention, along with hopes for invention

The Promise of Lived Experience: Assessing Race and Merit After SFFA

70 years after Brown, students of color remain underrepresented in U.S. colleges and universities and in professions like law, medicine, business, and academia, which, in turn, drives inequitable social and economic outcomes. Recent Supreme Court decisions threaten to further exacerbate this inequity by preventing schools from considering race when making admissions decisions and shaping their classes. This article contends that by placing greater emphasis on applicants’ experiences of race, admissions officers can more accurately assess merit, improve services to disadvantaged communities, and achieve the pedagogical benefits of diversity. The article situates the lived experience approach within a well-established tradition permitting the consideration of racialized experience in contexts from K-12 admissions and redistricting to criminal investigations and reparations. Although compliance with current legal interpretations is important in the near term, the lived experience approach’s greatest promise lies in advancing the true purpose of the Reconstruction Amendments—actively dismantling racial inequities and actualizing a multiracial democracy