Inventory and Characterization of the Riparian Zone of the Current and Jacks Fork Rivers

The ecological, recreational, and economic value of the 134 mile (216 km) riparian corridor within the Ozark National Scenic Riverways (ONSR) is of great interest to land managers and conservationists. Recent interest in applying ecosystem management to forest systems has necessitated a fresh look at the tools and methods in use to assess existing patterns of plant community structure and diversity. The purpose and objective of the study described in this report was to initiate a series of vegetation studies that could be integrated with existing research and management infonnation on the riparian vegetation in the ONSR. Defining the compositional and spatial attributes of the riparian corridor were at the core of our research efforts. We used multivariate analysis and ordination techniques to characterize the composition and distribution of woody and herbaceous vegetation within the ONSR

Much Ado About Possibly Pretty Little: McCarran-Ferguson Repeal in the Health Care Reform Effort

Since 1945, the McCarran-Ferguson Act (MFA) has shielded the “business of insurance” from antitrust liability, so long as the challenged conduct is “regulated by State Law” and does not constitute “boycott, coercion, or intimidation.” This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. This Essay asks two questions: (1) what consequences the pending repeal measures might have if one of them becomes law; and (2) what a close examination of this effort might teach us about the general business of MFA repeal and competition in insurance. This Essay proceeds in four Parts. Part I lays out useful background regarding the law of antitrust that currently applies to health and medical malpractice insurers, as well as to the current economic circumstances of their markets. Part I asks: (1) whether there is anything important about these markets that singles them out for special antitrust exemption; and (2) whether there is anything different enough about the two markets that dealing with them in the same way, in the same bill, might be somehow unwise (an argument insisted upon by industry lobbyists). Part II surveys in more detail the legislation that has been considered in the 111th Congress to set the stage for the substantive policy analysis that comprises Part III. A brief Conclusion then offers some broader thoughts about the general problem of repealing antitrust exemptions

Monism, Nominalism, and Public-Private in the Work of Margaret Jane Radin

This essay begins by situating the distinction in history generally and in American legal thought. Its historical aspect seems important because it suggests that the distinction is not predetermined—it is historically and culturally contingent. That fact has been largely ignored in the American legal academy, and among most of the judiciary it is all but outright socialist treachery to suggest it. The essay moves on to consider Radin\u27s work itself. The prominence of the distinction is relatively obvious in some of her work on technological marketing and design issues, but I will suggest that in fact it runs quietly just beneath the surface of all of her work.An important piece of this discussion will be to address the general philosophical stance Professor Radin has taken throughout her career—what she has described as her “Deweyan pragmatism.” I expect she will say that much of my critique is off the mark for failure to understand the pragmatic perspective. In fact, I fear that grappling with any specific problem in Radin\u27s work threatens to become a grappling with her pragmatism, because the pragmatist will say that my critique is a generalizing one—it attacks a general principle—whereas pragmatists ask questions only on a case-by-case basis, and have neither faith nor concern for arguments made in the abstract. I hope to avoid that as much as possible. Therefore I will do my best to take Radin\u27s pragmatism at its word, understanding it only according to what she has said about it, and presume it to be uncontroversial—as I expect Radin would put it, I will “bracket” all such matters—and focus only on the specific question of the public-private distinction. I do this in part because, with due respect, “pragmatism” is so loose and slippery that to confront it directly is to invite inevitable (and in this case, I think, unhelpfully distracting) digressions about what pragmatism is and what the particular pragmatist did or did not say about it at some point in the past. But this is also a matter of simple fairness and an effort not to be misunderstood as making criticisms I do not intend. In that spirit, it is only fair to add that both Radin\u27s pragmatism and her views on public-private must be pieced together from writings scattered across twenty-five years of work. My rendition of it therefore will be at best a bric-a-bac rather than a living and evolving system of thought. It is only “[a] static interpretation [that] reads an author\u27s later work in light of theories or conceptions laid down in her earlier work, though I fear it is also the best I can do. Ultimately, in any case, the heart of the essay is in Part III. There I will take the distinction head on, address Professor Radin\u27s approach to it, and suggest why it is an important problem in her work. Namely, the distinction is more than just a semantic peculiarity of significance only in judicial opinions. It plays a quietly profound legitimating function in society, effectively obscuring maldistributions of power of very great significance to the lives of human individuals, and therefore goes to what I believe has been the core of Professor Radin\u27s work throughout her career

An Implied Cause of Action Under the Real Estate Settlement Procedures Act

John and Janet lived for most of their early years together in a townhouse in Manhattan. It was a rental, a two-story walk-up on the Upper West Side with barely enough room for the two of them, and it ate up most of their income so that they were barely able to save anything. Wait a minute, John said one day, we\u27re paying almost as much for this dump as we\u27d pay for a mortgage on a nice house! So the two of them looked over their finances. Not much there. A few thousand and a 401(k) at Janet\u27s work. So John and Janet went to a bank - the Shady Bros. Mortgage & Loan, up in Westchester. They were going to need a mortgage loan

The Myth of Privatization

The very large body of recent scholarship on the phenomenon of American \u27privatization\u27, which means roughly the performance of some seemingly public function through a non-state instrumentality, and which is purportedly very new and very important, suffers from certain problems. Not least of these is that \u27privatization\u27 appears not to exist. Or, more accurately, this phenomenon, which is said both to be important in itself and the chief symptom of the changing new order of governance under which we now live, is in fact a thin sliver of relevant reality, at best. Indeed, privatizing talk takes as a given a model of the world that does not bear scrutiny, in that it assumes all of the following: (1) some significant and meaningful difference between \u27public\u27 and \u27private\u27 institutions, (2) a hierarchy of governance institutions that puts traditional government at the top, and accordingly assumes for \u27law\u27 a place of special prominence, and (3) a world of \u27markets\u27 that are substantially \u27free\u27, and that govern most or all of the organization of society that is not directly and effectively regulated by traditional institutions of government. In effect, the literature takes all of this scenery as a given, holding it constant, and then asserts that one, slender segment of the action is dynamic and that it is what really matters. To the extent that \u27privatization\u27 is this literature\u27s evidence of \u27change\u27, in any event, one must wonder: Does \u27privatization\u27 really prove that the world is changing, or just its decor? The purpose of this paper is to model qualitatively that world of governance institutions behind \u27privatizing\u27 transactions that the current literature normally leaves unexamined. A case will be made that an alternative model requires revision of two commonly held articles of faith: First, there is no important or even meaningful distinction between the \u27public\u27 and the \u27private.\u27 Second, to the extent there ever was such a thing as a \u27free market\u27, it is increasingly the case that no markets are really \u27free\u27, or, perhaps, that there really aren\u27t even markets at all. From these two claims a larger picture of the world of governance institutions can be developed. In short, it will be argued that the basic choice in the organization of society is not between bureaucracy, on the one hand, and markets, on the other, as is commonly assumed. Rather, it is between one kind of bureaucracy and another kind of bureaucracy

The Demise of Regulation in Ocean Shipping: A Study in the Evolution of Competition Policy and the Predictive Power of Microeconomics

Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world\u27s rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing. Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was based almost entirely on theoretically modeled economic arguments. Observing the industry\u27s behavior under deregulation is therefore a before-and-after opportunity to test the predictive accuracy of at least one body of economic argument. Finally, the evolution of shipping policy is also part of a larger historiography--the shipping exemption reflects the larger story of government efforts to cope with the problems of industrial organization

Competition Come Full Circle? Pending Legislation to Repeal the U.S. Railroad Exemption

Repeal of the railroad antitrust exemptions has been advocated ever since deregulation of that industry, and bills have been introduced twice to do it. However, there is no particular reason yet to believe railroad exemption repeal will occur in this Congress. The pending bills have not progressed far and have failed before, and they are opposed by the industry. But even if they progress, and assuming there is not also some significant change to the overall railroad regulatory framework, it seems unlikely that antitrust litigation will be very successful or that it will much change the status quo in rail competition

Dagher, American Needle, and the Evolving Antitrust Theory of the Firm: What Will Become of Section 1?

This summer, on the last regularly scheduled sitting of its October 2008 Term, the Supreme Court granted certiorari in a case that could have far-reaching consequences throughout the law of Sherman Act Section 1. In the case under review, American Needle, Inc. v. NFL, the Seventh Circuit, by unanimous panel decision, entered a striking ruling in the long-running debate over whether professional sports leagues can be “single entities” under Copperweld. The court not only said yes, but did so in what is possibly the most likely context in which the member teams could have competed with one another - the licensing of their trademarked logos to makers of sports memorabilia. The Supreme Court granted certiorari on the question whether defendant National Football League acts as a single entity as to this conduct. Among the decision’s most important consequences will be what it has to say about another recent decision, the underappreciated 2006 ruling in Texaco Inc. v. Dagher. If the Court reverses in American Needle, it may signal that Dagher is to be a narrow decision, limited to a fairly peculiar set of facts. If the Court affirms, and particularly if it does so in explicit reliance on Dagher, then American Needle could, as a practical matter, do significant damage to the enforceability of Section 1 of the Sherman Act; it could in effect immunize significant swaths of concerted conduct among competitors. It would imply that comparatively unintegrated arrangements, like trademark licensing agreements among the NFL member teams, are just as “economically integrated” as the defendants’ joint venture in Dagher. In short order we would see horizontal arrangements throughout the economy purporting to have “integrated” around some shared common purpose. Currently, no Supreme Court case gives very clear guidance as to how courts are to distinguish the actions of “integrated” joint ventures from those subject to at least rule of reason analysis under Section 1, and as will be suggested below, it is hard to imagine how those lines could be drawn. So as a worst-case scenario, the effect of affirmance of the Seventh Circuit’s decision in reliance on Dagher could be something like repeal of Section 1 as to wide-ranging horizontal conduct, other than the hardest-core, naked price fixing and market allocations

Raising the Price of Pork in Texas: A Few Thoughts on Ghosh, Bush, and the Future of Antitrust Immunity

Shubha Ghosh and Darren Bush were personally involved in real-world opposition to the Love Field airline terminal deal, organizing petitioning efforts in Congress and otherwise trying to get it stopped.My comments here basically ride two horses, because Ghosh and Bush raise two important and intriguing problems. First, I think the problem in the Love Field case and other case law they discuss is really just the problem with all of federal antitrust. Antitrust is in a dire state across the board. Lately, we seem near the completion of its euthanasia, which happened pretty much as Adams and Brock predicted, although it took a little longer than they thought it might. Even prior to the 1980s, antitrust was a pockmarked and leprotic Swiss cheese of exemptions and immunities, created not only by the upwards of thirty--count \u27em, thirty --federal statutory exemptions which give antitrust little or no purchase at all in broad swaths of American industry, but also by case law immunities for political activities, local government, labor, and regulated entities. Since then, however, the infusion of a certain kind of economic theory and a certain rhetoric about the costs and benefits of litigation have made it harder and harder with each passing year for plaintiffs to press antitrust liability. So far the culmination of this trend was seen in last year\u27s Bell Atlantic Corp. v. Twombly decision, though even Twombly and the Court\u27s other recent antitrust cases--almost all of which reversed lower court opinions favoring plaintiffs--are only one part of the Court\u27s wide-ranging campaign against private plaintiffs, much of it driven by explicit tort reform rhetoric. Who knows how much farther the trend will go from there