Focus on Fairness, Efficiency, and the Law: Response. An Integration of Equity and Efficiency

Swygert and Yanes, in an article in this issue of the Washington Law Review, suggest a means to achieve this integration. In this Article, I first discuss the shortcomings of the approach suggested by Swygert and Yanes. Next, I suggest a more practical approach for integrating efficiency and equity that relies on benefit cost analysis. Finally, I consider some of the cases to which Swygert and Yanes apply their analysis. The fundamental shortcoming of the Swygert and Yanes approach is that it offers little for deciding practical cases. The authors combine two abstract and heuristic proposals and quite naturally end up with an abstract approach that is uncertain in its application. In this response, I show that benefit cost analysis, a well-established technique for determining whether a decision is efficient, is also applicable to equity considerations. Indeed, I show that the distinction between efficiency and equity is artificial. The expanded efficiency approach I suggest remedies the defects in the Swygert and Yanes approach and offers a more practical alternative for integrating efficiency and equity

Biosynthesis and NMR-studies of a double transmembrane domain from the Y4 receptor, a human GPCR

The human Y4 receptor, a class A G-protein coupled receptor (GPCR) primarily targeted by the pancreatic polypeptide (PP), is involved in a large number of physiologically important functions. This paper investigates a Y4 receptor fragment (N-TM1-TM2) comprising the N-terminal domain, the first two transmembrane (TM) helices and the first extracellular loop followed by a (His)6 tag, and addresses synthetic problems encountered when recombinantly producing such fragments from GPCRs in Escherichia coli. Rigorous purification and usage of the optimized detergent mixture 28 mM dodecylphosphocholine (DPC)/118 mM% 1-palmitoyl-2-hydroxy-sn-glycero-3-[phospho-rac-(1-glycerol)] (LPPG) resulted in high quality TROSY spectra indicating protein conformational homogeneity. Almost complete assignment of the backbone, including all TM residue resonances was obtained. Data on internal backbone dynamics revealed a high secondary structure content for N-TM1-TM2. Secondary chemical shifts and sequential amide proton nuclear Overhauser effects defined the TM helices. Interestingly, the properties of the N-terminal domain of this large fragment are highly similar to those determined on the isolated N-terminal domain in the presence of DPC micelles

More Lessons From Japan: End Industrywide Collective Bargaining?

The number of books and articles discussing Japanese management techniques with an eye to transplanting them to the United States is staggering. Americans understandably are impressed by Japanese efficiency and like to think the adoption of some of their techniques will aid our own industries. Often these proposals seem fanciful and fail to recognize the many differences between the two countries, their economic systems and cultures

Reducing Unions\u27 Monopoly Power: Costs and Benefits

There is a fundamental conflict between labor law and antitrust law. The antitrust laws reflect the powerful idea that competition should usually dictate the way our economy is organized, to the benefit of the economy as a whole, including workers. But the labor exemption to the antitrust laws suggests a different policy: workers should have the right to eliminate competition for wages, hours, and working conditions

The Role of Rights in Benefit Cost Methodology: The Example of Salmon and Hydroelectric Dams

Benefit cost analysis is a well-established technique for assessing the impacts of proposed actions. Accurate benefit cost analysis is essential to making informed decisions through an understanding of the trade-offs involved in alternative actions. This Article presents a methodology for improving current benefit cost techniques and hence the usefulness of benefit cost analysis to decisionmakers. The proposed methodology is based on recognition of the roles of legal rights and psychological expectations in benefit cost analysis. Proper consideration of these rights and expectations is critical to an accurate determination of how benefits and costs are measured and whose interests are included in the analysis. Addressing these issues will provide more accurate and comprehensive information to decisionmakers. Application of the proposed methodology may significantly affect the outcome of a benefit cost analysis and hence impact the decisionmaking process

The Sherman Act is a No-Fault Monopolization Statute: A Textualist Demonstration

The drafters of the Sherman Act originally designed Section 2 to impose sanctions on all monopolies and attempts to monopolize, regardless whether the firm had engaged in anticompetitive conduct. This conclusion emerges from the first ever textualist analysis of the language in the statute, a form of interpretation originally performed only by Justice Scalia but now increasingly used by the Supreme Court, including in its recent Bostock decision. Following Scalia’s methodology, this Article analyzes contemporaneous dictionaries, legal treatises, and cases and demonstrates that when the Sherman Act was passed, the word “monopolize” simply meant that someone had acquired a monopoly. The term was not limited to monopolies acquired or preserved through anticompetitive conduct. A textualist analysis accordingly suggests that Section 2 should be applied to impose liability and corrective remedies on all monopolies and attempts to monopolize. A textualist approach to statutory construction would not imply or create unstated exceptions. Since Section 2 of the Sherman Act contains no explicit exception for a monopoly acquired or preserved without proof of anticompetitive conduct, none should be implied or created. Current case law requiring plaintiffs to prove the corporation involved engaged in improper conduct should be overturned. This Article also briefly analyzes the practical economic implications likely to follow if the courts adopt a “no-fault” approach to monopolization law. This analysis will demonstrate that the overall economic effects will be uncertain. They will depend upon empirical issues whose net effect is speculative or ambiguous. They nevertheless are likely to be beneficial on the whole, and this provides some support for the no-fault position, and a fortiori demonstrate that the Article’s textualist conclusions should be implemented. Imposing sanctions on all extremely large monopolies could improve economic welfare in many ways. This should increase innovation and international competitiveness. It should prevent the allocative inefficiency effects of monopoly pricing and the form of exploitation that arises when monopolies acquire wealth from consumers. It would be likely to decrease the inefficiencies that result from monopolies enjoying a “quiet life.” It should avoid the waste that can arise as a firm struggles to attain and protect its monopoly, and some of the time and cost of Section 2 litigation. It should improve privacy and decrease income inequality. The new standard would admittedly also cause some costs and difficulties. For example, imposing sanctions on all monopolies could sometimes send a confusing or perverse signal to firms engaging in hard but fair competition, especially as a firm’s market share neared the ambiguous level required for a violation. No-fault liability could also enable competitors to file baseless lawsuits. The transaction costs involved in imposing sanctions on monopolies could be significant. It also could lead to difficult remedy issues in cases involving natural and patent monopolies. We believe, however, that the benefits of no-fault are likely to outweigh the costs. Textualism has been used in more and more Supreme Court analyses in recent years. Moreover, there recently have been many calls, from very different parts of the political spectrum, for imposing sanctions on extremely large monopolies without inquiring into whether the firm engaged in anticompetitive conduct. This issue has not, however, been analyzed seriously either from a legal or an economic perspective in roughly a half century. The purpose of this Article is not to resolve all of the relevant questions. Its goal is to re-kindle debate about the legal and economic issues involved in imposing sanctions on all monopolies and attempts to monopolize under the Sherman Act and also, a fortiori, under Section 5 of the FTC Act. And to demonstrate that its textualism-derived conclusions constitute reasonable policy options

Reducing Unions\u27 Monopoly Power: Costs and Benefits

There is a fundamental conflict between labor law and antitrust law. The antitrust laws reflect the powerful idea that competition should usually dictate the way our economy is organized, to the benefit of the economy as a whole, including workers. But the labor exemption to the antitrust laws suggests a different policy: workers should have the right to eliminate competition for wages, hours, and working conditions

More Lessons From Japan: End Industrywide Collective Bargaining?

The number of books and articles discussing Japanese management techniques with an eye to transplanting them to the United States is staggering. Americans understandably are impressed by Japanese efficiency and like to think the adoption of some of their techniques will aid our own industries. Often these proposals seem fanciful and fail to recognize the many differences between the two countries, their economic systems and cultures

Anticonsumer Effects of Union Mergers: An Antiitrust Solution

Should unions and corporations be treated identically under the antitrust laws? This article explores this provocative question by examining whether union mergers should be subject to the antitrust laws. Currently unions and corporations are treated very differently. Large corporate mergers are blocked if their effect may be substantially to lessen competition, or to tend to create a monopoly . They are permitted if they are likely to be benign, procompetitive, or proconsumer. Collective bargaining, by contrast, enjoys a broad exemption from the antitrust laws. If they follow appropriate procedures, unions - even unions that, when taken together, cover all workers within a given industry - are permitted to merge or to coordinate their activity. There is no review of these mergers or of this coordinated activity to determine whether monopoly power, cartel-type behavior, or other anticompetitive or anticonsumer activity will result. This Article asks whether mergers or joint conduct between labor unions should be examined under a standard similar to that used to scrutinize corporate activity. This piece outlines an alternative proposal that would allow workers within individual companies to form a union or otherwise coordinate their bargaining, but then subjects all proposed mergers or other alliances of these units to the provisions of the antitrust laws. We take Congress\u27 concerns in the area as a given and demonstrate that Congress could substantially have reached its primary goals in a better way. An approached that treated union activity identically to corporate activity might very well reduce the anticompetitive potential of unions without ignificantly sacrificing their protective and efficiency-enhancing aspects. This Article focuses upon some of the implications and practical consequences that could arise from this alternative policy