Formalism in Competition Law

This article analyzes the meaning and role of formalism in competition law. Drawing on general legal theory and philosophy, this article conceives of formalism as decision-making constrained by rules, whereby rules exclude considerations from the decision-making process. It analyzes the degree to which per se rules and the rule of reason in U.S. antitrust law and the category of “by object” restrictions in EU competition law involve formalistic reasoning. It subsequently discusses the relationship between “legal form” and “anticompetitive effects” and the debate on “form-based” versus “effects-based” approaches to competition law. It concludes that “effects-based” approaches to competition law typically involve formalistic legal rules, thus deconstructing the well-known form–effect dichotomy. Finally, this article analyzes the normative relationship between formalism, type 1 and 2 errors, and legal certainty, and argues that this relationship is fundamentally shaped by beliefs about institutional competence and the allocation of decisional jurisdiction. The article concludes by arguing against pejorative conceptions of “formalistic” and “form-based” competition law. Competition law, like law in general, is inherently formalistic, albeit to a limited degree. Rather than the empty dichotomy of “form” versus “effect,” the central question in competition law is to which formalism it ought to be committed

Deconstructing Carmona: The U.S. War on Drugs and Black Men as Non-Citizens

Article published in the VaLaw U.Law Review

Legal Classics: After Deconstructing the Legal Canon

The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory. Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes the polemical structure of the debate and asserts that an appreciation of classical, as opposed to canonical, texts opens the way for a productive inquiry. He defines a classical text as one that both shapes contemporary concerns and also serves as a point of reference for revising these concerns. Classical texts enable critical perspectives rather than submitting to them, he continues, because they provide the arena for debates about issues of public concern. Using Hadley v. Baxendale as an example of a legal classic, Professor Mootz contends that the power of such a classical text is its ability to shape hotly contested legal debates. Our time . . . seems unpropitious for thinking about the question of the classic, for . . . it seems to be a simple either/or that requires merely a choosing of sides: for or against? back to the classics or away from them? Our time calls not for thinking but a vote. And it may well be too late for thinking about the classic in any case, for the vote is already in, and the nays have it

Deconstructing Section 11: Public Offering Liability in a Continuous Disclosure Environment

There can be no successful reform of the system of capital-raising regulation in the US without rethinking the liability regime. Reform is long overdue and can readily be accomplished in a way that does not unnecessarily compromise investor protection

Deconstructing Corporate Governance: Director Primacy Without Principle?

For almost eighty years now, corporate law scholarship has centered around two elementary analytical findings made in what has once been described as the “last major work of original scholarship”within the field

Reterritorialising literary studies: deconstructing the scripts of empire

In this article, I demonstrate the ways in which archival material can be gainfully employed within literary studies. Focusing on the figure of the Indian coolie of colonial Malaya, I argue that adopting such an interdisciplinary paradigm is a necessary bridge to aid the quest for the story of the pioneer Indian immigrant experience for its trail stretches across two terrains of narrativisation, one historical, the other literary. As I seek out the texts that have constructed the base of the sign-system that has in many ways locked the subject in question within its confining structures, I also propose to read them against the grain, to dislodge their deeply embedded discursive pillars. In other words, I will proceed with what is primarily a deconstructive reading of the colonialist sign-systems of the coolie. The article thus demonstrates the reterritorialising of literary studies as it excavates the scripts of empire buried within the terrain of history through the mechanisms of literary deconstruction, thus re-reading history as literatur

Consumer Power to Change the Food System? A Critical Reading of Food Labels as Governance Spaces: The Case of Acai Berry Superfoods

This article argues that the marketing claims on food labels are a governance space worthy of critical examination. We use a case study of superfood açaí berry products to illustrate how marketing claims on food labels encapsulate dominant neoliberal constructions of global food systems. These marketing claims implicitly promise that by making careful choices consumers can resist and redress the ravages of unbridled global capitalism. Food labels suggest that consumers can use market signals to simultaneously govern our own selves and the market to ensure sustainable, fair, and healthy consumption. In response, this article develops, justifies and applies a socio-legal approach to researching food chain governance which uses the food label as its unit of analysis and traces from the micro level of what the everyday consumer is exposed to on a food label to the broader governance processes that the food label both symbolizes and effects. We demonstrate our approach through a “label and chain governance analysis” of açaí berry marketing claims to deconstruct both the regulatory governance of the chain behind the food choices available to the consumer evident from the label and the way in which labels seek to govern consumer choices. Our analysis unpacks the nutritionist, primitivist undertones to the health claims made on these products, the neo-colonial and racist dimensions in their claims regarding fair trade and rural socio-economic development, and, the use of green-washing claims about biodiversity conservation and ecological sustainability. Through our application of this approach to the case study of açaí berry product labels, we show how food labels can legitimize the market-based governance of globalized food chains and misleadingly suggest that capitalist production can be adequately restrained by self-regulation, market-based governance and reflexive consumer choices alone. We conclude by suggesting the need for both greater deconstruction of the governance assumptions behind food labels and to possibilities for collective, public interest oriented regulatory governance of both labelling and the food system

Deconstructing Development

Whether it is being praised or excoriated, defended or condemned, the concept of development shapes and dominates our thinking about the Third World. Indeed development has evolved into an essentially incontestable paradigm with such a hold on our collective imaginations, that it is almost impossible to think around or beyond it. This article, however, interrogates development to its very core, demonstrating that although it is presented as something that is universal, natural and inevitable, in truth it is part of the Western political and cultural imagination. Moreover, the interlocking ideological assumptions that support this paradigm are inherently hierarchical and by definition privilege certain societies, cultures and institutions while disparaging others. This critique traces how development began, how it has evolved and expanded in theory and practice over the last fifty years, and the evolution and influence of the institutions that determine its content. It also considers the implicit ideology that underpins development, as well as how and why it has come to feel almost inevitable and natural despite its short and disappointing history. While no new meta-narrative is posed, we nonetheless turn to imagining a world that does not demand that people 'develop' into something other than what they are.