Consumer Shopping Costs as a Cause of Slotting Fees: A Rent-Shifting Mechanism

Analyzing a sequential bargaining framework with one retailer and two suppliers of substitutable goods, we show that slotting fees may emerge as a result of a rent-shifting mechanism when consumer shopping costs are taken into account. If consumers economize on their shopping costs by bundling their purchases, their buying decision depends rather on the price for the whole shopping basket than on individual product prices. This induces complementarities between the goods offered at a retail outlet. If the complementarity effect resulting from shopping costs dominates the original substitution effect, the wholesale price negotiated with the first supplier is upward distorted in order to shift rent from the second supplier. As long as the first supplier has only little bargaining power, she compensates the retailer for the upward distorted wholesale price by paying a slotting fee. We also show that banning slotting fees causes per- unit price to fall and welfare to increase.Shopping costs, rent-shifting, slotting fees

Merger Efficiency and Welfare Implications of Buyer Power

This paper analyzes the welfare implications of buyer mergers, which are mergers between downstream firms from different markets. We focus on the interaction between the merger's effects on downstream efficiency and on buyer power in a setup where one manufacturer with a non-linear cost function sells to two locally competitive retail markets. We show that size discounts for the merged entity has no impact on consumer prices or on smaller retailers, unless the merger affects the downstream efficiency of the merging parties. When the upstream cost function is convex, we find that there are "waterbed effects", that is, each small retailer pays a higher average tariff if a buyer merger improves downstream efficiency. We obtain the opposite results, "anti-waterbed effects", if the merger is inefficient. When the cost function is concave, there are only anti-waterbed effects. In each retail market, the merger decreases the final price if and only if it improves the efficiency of the merging parties, regardless of its impact on the average tariff of small retailers.Buyer mergers, non-linear supply contracts, merger efficiencies, size discounts, waterbed effects

Disgorging Emoluments

This Article is about unjust enrichment. It includes a theory of an unjust enrichment cause of action against executive actors who receive unlawful emoluments. Interpretations of the boundaries of unlawful emoluments range from receipt of a gift or benefit because of the position of power held to quid pro quo exchanges of a thing of value in exchange for government information or advantage. Wherever the proper line, the purpose of the law of unjust enrichment is to prevent and undo benefits one has no right to retain. It achieves those goals with the use of restitution remedies including disgorgement of unjust profits. Unjust enrichment is particularly suited to remedy wrongful emoluments because the goal is to undo improper gain rather than compensate for any plaintiff losses. Unjust enrichment law and restitution-based remedies law are experiencing a revival in the United States. This resurgence of interest in and use of unjust enrichment theory has led to increased application of restitutionary remedies. This Article proposes the restitutionary-based remedy of disgorgement of emoluments that constitute unjust gains. This cause of action and remedy already lie in American common law. Unjust enrichment provides a freestanding basis for disgorgement relief as well as restitution remedies to protect against fiduciary breaches and violations of other protected interests. Article III standing and other jurisdictional obstacles may pose a need for a cleaner, additional path. No existing statutes cover this field. Thus, I propose a statutory solution that operationalizes restitutionary disgorgement as the preferred remedy to undo unjust emoluments

Statutory Interpretation and Agency Disgorgement Power

(Excerpt) In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival. What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is a gain-based profits remedy rooted in both restitution law and equity power. My earlier work focused on private law implications of this powerful form of relief, including its ability to fill gaps between common law causes of action. That research identified dangers including exceeding unjust enrichment’s purpose by punishing without punitive power and without proper procedural guards. Without restraint, the remedy threatens to destroy. With restraint, disgorgement holds promise for capturing unjust gains and deterring egregious wrongs. Of course, equity doesn’t hold allure for all. Or, more specifically, skepticism and misunderstanding surrounds equitable remedies, equitable defenses, and enduring equitable principles. Equity at its worst risks being unbounded, arbitrary, unpredictable, and unfair. However, development of equity and corrective measures introduces limits to address equity’s primary flaws. Modern skepticism about equity is likely more about disinterest than opposition to equitable principles. Disinterest stems from the assumed irrelevance of equity in modern civil litigation because of the almost total elimination of separate courts of equity in the United States. Procedural reforms streamlined civil procedure to merge law and equity. A common misperception is that the erasure of separate courts and the procedural merger of law and equity means that equity has vanished. This myth leads to an assumption that there is no need to understand equity, but this logic is wrong. The law-equity distinction remains critical in the determination of rights to a jury trial versus discretionary judge-based determinations. Equitable defenses remain a part of a modern equitable system. They also continue to thrive as shields from equitable remedies. Some advocate complete fusion of equity into law for a more functional and less anachronistic legal system. Still, the import of equity remains. Modern equity is on the rise, and it is ripe for continued refinement

Judicial Fidelity

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding constitutional rights, leaks confidential drafts, and countenances judicial failures to recuse despite questionable impartiality. Assuming all these claims are true, not all of them are inherently bad for democracy and the rule of law. Rather, democracy has seen and survived overruling of precedent, counter-majoritarian rulings, and a pendulum of opinions steeped in politics. It has survived ethical failings. Some of these occurrences are measurably bad for the federal judiciary and society, and threaten democracy, but ultimately, the rule of law will survive. It must.For its survival, ink must be spilled, reforms must flow, partisan advocates must be careful what they wish for, and judges themselves must do better. The measure of a person is what one does in the face of a crisis. This article asserts that this crisis is not unprecedented, but it is nonetheless real and serious. Perhaps it is a genuine moment to look to higher powers and within ourselves to “save this honorable court” and, in turn, save democracy.This article defines and promotes novel conception of judicial fidelity. Judges must answer to a duty beyond pure individualistic or tribal motives. Judicial fidelity requires aiming towards judicial ideals such as judicial humility, a balance of heart and mind, transparent reasoning, respect for coordinate branches, fairness towards litigants, and good-faith decisionmaking. This work offers positive and negative examples in recent Supreme Court cases from high-visibility constitutional cases to low-visibility remedial and procedural cases. We are past the claim of neutral principles devoid of any normative wants, but judges can transparently show their reasoning, values, and favored interpretive methods. Accountability must increase for thoughtful critics to promote meaningful reform. Ideally, each party’s judicial nominations will be better stewards of this sacred role federal judges play individually and collectively. A well-functioning federal judiciary must perform its essential functions under Article III with healthy separation-of-powers tension with other government branches, basic procedural checks visibly in place and operating, well-reasoned opinions, and the wise exercise of discretion where the case or its remedy dictate a pivot in the law. Otherwise, those tears in the fabric of democracy will continue to fray and the very foundational constitutional rights at stake will lose their force. With a renewed fidelity to judicial ideals by all actors, the federal judiciary can do its part to protect the rule of law and serve democratic values

Measuring Third Grade Reading Performance With and Without Using the Study Island Program

The low test scores on third graders\u27 Illinois State Assessment Test (ISAT) is a concern in the Allgood Elementary School community. Thirty percent of third graders are retained because they do not meet the standard on the ISAT. A technology-assisted reading program, Study Island, was implemented to increase reading proficiency. The purpose of this study was to determine if there was an improvement in standardized test performance after the implementation of Study Island for the academic school years 2009-2012. Dewey\u27s theory of experience provided the theoretical framework for the study because when students are engaged in hands on experience in education it reflects a meaningful learning experience. A correlational study was conducted to examine whether the computer-based program had an effect on student reading performance on the ISAT. The sample consisted of students in two third-grade classrooms (N = 305) enrolled during these years. Archived ISAT scores were used to compare student performance. A one-way ANOVA determined whether statistically significant differences existed in the mean scores of students who did and did not use the Study Island reading program. The results show, ISAT scores were significantly higher only after the second year of implementation of the program. The findings, presented in a white paper, can promote social change by helping school officials make informed decisions on implementing Study Island, ultimately to improve reading outcomes for students and help them become critical thinkers in society