The Fifth Circuit held that as long as Grutter remained good law, UT's use of race-conscious measures in admissions decisions complied with the Equal Protection Clause of the Fourteenth Amendment because it was narrowly tailored to achieve a critical mass of minorities despite its simultaneous use of the Ten Percent Law. Fisher v. University of Texas at Austin, 631 F.3d 213, 246-47 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012).
Capitalism, Liberalism, and the Right to Privacy
The constitutional right to privacy is a doctrinal mess. The United States Supreme Court appears incapable of articulating a coherent underpinning to this important line of cases, or--more likely--is simply unwilling to do so. And yet there is an obvious candidate for that job: the philosophy of liberalism. But liberalism is a notoriously complicated and contested philosophy. Thus, this Article proposes a succinct and functional articulation of liberalism, which it then applies to Supreme Court cases dealing with the right to privacy. As we shall see, the Court's failure to follow liberal principles lies at the heart of its inconsistencies. Greater understanding of liberalism, and greater willingness to respect this political theory so deeply rooted in American history and tradition, could bring much needed coherence to this body of constitutional law.
Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions
Per curiam—literally translated from Latin to “by the court”—is defined by Black's Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts's tenure, almost nine percent of the Court's full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law. This Article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges' fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.
Gulf Coast v. Newlin: Reaffirming the Fundamental Notions of Admiralty Jurisdiction
The Fifth Circuit held that the district court did not have admiralty jurisdiction over this action, because Gulf Coast lacked a legal claim to title or possession of the dredge, and its contract and tort claims did not constitute maritime claims, which would have afforded a basis for admiralty jurisdiction. Gulf Coast Shell & Aggregate LP v. Newlin, 623 F.3d 235, 237, 2011 AMC 421, 422 (5th Cir. 2010).
Advisory Adjudication
The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring and violating the Article III jurisdictional limitation on advisory opinions at the same time. The Camreta paradox illustrates a problem that makes our current conception of judicial review incoherent. We insist that the Supreme Court avoid separation of powers problems by confining itself to the retrospective adjudicatory activities envisioned by the Marbury v. Madison dispute-resolution model of judicial review. But what we really want the Court to do is participate in the prospective formulation of governmental policy, as if it were part of a tricameral legislative process. These dual conceptions of judicial review reflect a tension inherent in liberalism itself. We want both to advance our own self-interests in an unflattering pluralist political process, but simultaneously we wish to think of ourselves as other-regarding adherents to loftier civic republican virtue. We ask the Supreme Court to mediate this tension for us by making our liberal political victories look as if they are rooted in deeper communitarian principles. But this mediation can be successful only to the extent that the Court can mask for us the underlying incoherence of the judicial review function that we ask the Court to perform. In Camreta, this incoherence is so close to the surface that, hopefully, we will be forced to confront it. Without the camouflage that we ask judicial review to provide for our baser instincts, perhaps we will come to treat each other less harshly, and with more empathy.
In re Katrina Canal Breaches Litigation: Upholding Freedom of Contract
In answering the certified question, the Louisiana Supreme Court held that public policy in Louisiana does not bar the application of an antiassignment clause to postloss assignments where the language of the antiassignment clause “clearly and unambiguously express[es]” the parties' intention that the clause will apply to postloss assignments. In re Katrina Canal Breaches Litigation, 2010-1823, pp. 7, 12 (La. 5/10/11); 63 So. 3d 955, 960, 963.
Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond
This Article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The Article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase's work can apply in the context of the criminal law and specifically economic crimes. The argument in this Article then demonstrates how the government's purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may underinvest in private precautionary measures while others will be forced to overinvest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to address economic crimes optimally and having shown that TARP leads to inefficient outcomes under that type of analysis, this Article concludes with recommendations to avoid these problems in the future.
Competition on and off the Field: An Analysis of the Role of Antitrust Law in the Continuing Evolution of Professional Sports and Intercollegiate Athletics
When Congress passed the Sherman Act in 1890, professional football did not exist, basketball had not been invented, and the National Collegiate Athletic Association (NCAA) was yet to be born. That all five of the Essays in this Symposium deal in one way or another with the intersection of antitrust law and professional or collegiate sports is a testament to the enduring relevance of the Sherman Act in face of changing market realities. Two of the Essays explore the competing claims of antitrust law and labor law to the relationship between professional athletes and the leagues that employ them. In Brady v. NFL and Anthony v. NBA: The Shifting Dynamics in Labor-Management Relations in Professional Sports, Professor Gabriel Feldman analyzes professional athletes' recent resort to antitrust law to counteract the leagues' use of offensive lockouts to gain salary concessions from players' unions. Feldman traces the development of the nonstatutory labor exemption from the antitrust laws, which the United States Supreme Court created to exempt restraints on competition imposed through the collective bargaining process from antitrust scrutiny and later extended to certain postimpasse conduct. Feldman explains that although the Court said that the antitrust exemption lasts only until the “collapse of the collective-bargaining relationship,” recent cases posed the still unanswered question whether players can avoid the exemption by dissolving their unions and then challenging lockouts under the antitrust laws. Feldman examines the arguments on both sides of the issue and concludes that its resolution will decide the trajectory of labor relations in professional sports. In The Narcotic Effect of Antitrust Law in Professional Sports: How the Sherman Act Subverts Collective Bargaining, Professor Michael H. LeRoy argues that professional football and basketball players have become “addicted” to subverting collective bargaining by seeking court intervention under the antitrust laws in disputes with management. He contends that repeated resort to the antitrust laws provides a “habit forming” release from the obligation of hard and responsible bargaining. In his view, this de facto displacement of collective bargaining undermines the salutary purposes of the National Labor Relations Act, which is to leave management and labor free from government interference as they adjust their differences.
Radical Reform of Intercollegiate Athletics: Antitrust and Public Policy Implications
Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes “corruption” when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question why these revenues should subsidize nonrevenue sports at the expense of financially pressed classroom activities. Contrary to the NCAA Constitution, major football programs do not operate “in keeping with prudent management and fiscal practices.” This Essay sets forth an agenda for reform, explains why the agenda reflects sound public policy, and analyzes why and how the NCAA can implement the agenda in a manner consistent with the Sherman Antitrust Act. It builds upon four foundational principles: (1) prudently managed, self-sustaining intercollegiate sports are legitimate; (2) intercollegiate sports programs that are not self-sustaining have no greater claim on the surplus proceeds from the activities of other sports programs on campus than any other educational program offered by the university; (3) the equal opportunity purposes that underlie Title IX should be maintained; and (4) whatever the additional societal benefits that may result from Division I nonrevenue sports, they do not justify the cost of operating those sports, having regard for the societal benefits that can be achieved by operating these sports at the equivalent of an elite club or Division III level. Applying these foundational principles in light of the problems facing intercollegiate athletics, this Essay offers a five-part Charter of Reform for intercollegiate athletics: (I) end subsidies for men's sports at the Division I level; (II) operate sufficient women's Division I sports to provide female students with sports opportunities equal to male students; (III) offer other sports on an equal basis to male and female students, limited to financial aid only for financial need or academic merit independent of athletic ability, with significant restrictions on coaching and travel; (IV) allow all scholarships to be partial or full and reduce football scholarship totals to fifty-five; and (V) permit up to one and one-half scholarships for the most elite athletes.
From Dallas Cap to American Needle and Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies
A nearly fifty-year contemporaneous trend of increasing legal protection for sports team trademarks, collective exclusive licensing of professional sports team trademarks, and antitrust litigation regarding its validity culminated in the United States Supreme Court's 2010 decision American Needle, Inc. v. NFL, which rejected the NFL's single-entity defense. Collective exclusive trademark licensing by professional sports leagues generally does not have significant incremental anticompetitive effects beyond the consumer harm already caused by each individual club's lawful trademark monopoly, which likely are outweighed by procompetitive benefits in many instances. However, in order for antitrust law to minimize the consumer harm caused by the extension of trademark law protection beyond its traditional boundaries to create professional sports club trademark monopolies, the collective granting of exclusive product category licenses should be invalidated under the quick-look rule of reason because this restraint has clear anticompetitive effects that are not necessary to achieve legitimate procompetitive justifications and/or which may be achieved by a substantially less restrictive alternative.