\u3ci\u3eAmEx\u3c/i\u3e and Post-Cartesian Antitrust

I. Introduction II. Situating American Express ... A. Different Sides of the American Express Opinion ... 1. Two-Sided Markets ... 2. The American Express Opinion ... B. The Real Issue Is Messy, Not Two-Sided, Markets … C. The Many Messes of Modern Markets III. Competition in Messy Markets ... A. Simple Competition in Simple Markets ... B. More Complex Competition in Messier Markets ... C. American Express: The Competition Is in the Pudding IV. The Many Sides of AmEx’s Rightness ... A. A Burden Best Born by Plaintiffs ... B. Economic Theory as a Question of Law or of Fact? V. Conclusio

Net Neutrality: Something Old; Something New

Article published in the Michigan State Law Review

Chevron\u27s Political Domain: W(h)ither Step Three

This essay takes prior work on Chevron in a new direction, arguing that broad deference doctrines have the largely unrecognized but particularly pernicious effect of increasing the politicization of the legislative process. Not only do Chevron and related deference doctrines affect how legislators go about the business of the Congress, but they change legislators’ understanding of what the business of Congress is. Untethered from the need to actively govern agencies that have been delegated sufficiently broad authority to keep the basic ship of state afloat, legislators refocus their attention on maintaining power for themselves and their political party. In this light, in the thirty or so years since Chevron became the law of the land, our country’s governing institutions have grown increasingly politicized: and at the risk of overstating this essay’s claim, perhaps Chevron itself, and the related embrace of broad judicial deference to the administrative state of which it is part, is in some measure responsible for our current sorry political state. This is an undesirable outcome. And, as framed here, it is not only unfortunate but also problematic on separation of powers grounds. Conversely stated, if this essay’s argument holds, separation of powers principles may offer some remedy to the harms that Chevron has worked upon to our constitutional republic. The intuition explored in this essay is that Chevron dramatically exacerbates Congress’s worst tendencies, encouraging Congress to push its legislative functions to the executive and to do so in a way that increases the politicization and polarization of American law and policy. This gives rise to a fear that Chevron effectively allows, and indeed encourages, Congress to abdicate its role as the most politically-accountable branch by deferring politically difficult questions to agencies. This argument is, at core, based in separation of powers concerns. While separation of powers concerns generally focus on preventing one branch of government from encroaching into the realm of the other branches, this essay offers a twist, arguing that Chevron’s demurral to agency interpretations encourages a Congressional abdication of its Constitutional responsibilities – and that such deference is therefore an abdication of the judiciary’s Constitutional role as a check on the problematic conduct of its sister branches

Madison and Shannon on Social Media

The Internet has changed speech, and our traditional understandings of speech regulation are struggling to adapt. This article argues that the Internet has tipped the quantity of information that individuals are exposed to beyond the point which they are able to meaningfully process. This article draws from a range of fields— from Information Theory, to cognitive psychology, to informatics—to provide both empirical and theoretical support for the idea that there is a limit to how much information individuals can meaningfully process and that we have surpassed that limit. This argument poses a direct challenge to bedrock First Amendment concepts such as the marketplace of ideas and the mantra that “the best response to bad speech is more good speech.

Telemarketing, Technology, and the Regulation of Private Speech: First Amendment Lessons from the FCC’s TCPA Rules

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, the scope of the TCPA has expanded from protection of the privacy of the home to a more general shield from unwanted communications. Because the TCPA regulates speech, it has been subject to repeated First Amendment challenges since it was enacted in 1991. Those challenges have consistently been reviewed subject to intermediate scrutiny, under which the statute has consistently survived. Recent developments in First Amendment precedent, however, suggest that such challenges brought in 2018 would likely be subject to strict scrutiny, rather than intermediate scrutiny. Moreover, recent technological and regulatory developments suggest that the TCPA is not sufficiently tailored to survive application of intermediate scrutiny, let alone its stricter cousin. Given the sharp increase in TCPA suits in recent years—from just fourteen suits in 2007 to nearly five thousand in 2016—and this legal evolution, this article provides analysis relevant to forthcoming judicial and regulatory consideration of the TCPA

State, Local, and Regional Issues in Cybersecurity: Symposium Introduction

Cybersecurity is one of the more difficult and urgent issues of the day. It is an issue that touches almost every aspect of modern life. Recent years have seen major cybersecurity incidents affect national security, our political process, major government institutions, companies of every size throughout our economy, critical infrastructure, banking, consumer electronics, and, of course, consumers themselves. Examples of each of these feature so prominently in the news that they barely need citation: OPM, Sony, Target, concerns about the 2016 election, disclosure of NSA hacking tools, attacks on the banking sector’s SWIFT network, ransomware attacks against hospitals, DDoS attacks against the Internet’s Domain Name System using networks of hundreds of thousands (if not millions) of compromised consumer-owned, Internet-connected devices. This list could fill several pages—and that is with only well-publicized, high-profile incidents—the tip of the cybersecurity iceberg. Most discussion about cybersecurity law and policy focuses on issues as they occur at a national or supra-national level. This is unsurprising: the nexus of issues that define cybersecurity have long fallen within the ambit of federal regulation and national security, and most sophisticated cybersecurity actors have long been those operating at the nation-state scale. But much of what happens in cybersecurity occurs at the subnational level. The targets of cybersecurity incidents are usually local actors, as are the first responders; state and local governments often face cybersecurity concerns equal to those of national-level government; much of current “cybersecurity law” exists at the state level; and most critical infrastructure is owned by firms operating within, and largely regulated by, individual states. In March 2017, the University of Nebraska College of Law’s Space, Cyber, and Telecommunications Law Program, in conjunction with the Nebraska Law Review, convened a conference to discuss cybersecurity issues at the state, local, and regional level. The present volume of the Review includes a symposium comprising contributions from that conference’s participants

Debatable Premises in Telecom Policy, 31 J. Marshall J. Info. Tech. & Privacy L. 453 (2015)

The five premises that this paper considers are: 1. Everyone needs low-cost access to high speed broadband service 2. High-speed broadband is necessary for education, health, government, and other social services 3. Wireless can‟t compete with cable 4. An open Internet is necessary for innovation and necessarily benefits consumers 5. Telecommunications are better somewhere else

Net Neutrality: Something Old; Something New

Article published in the Michigan State Law Review