Vol. 95: Spring
Justice David Stras Tribute
David Wippman, Robert A. Stein, Timothy R. Johnson, and Ryan W. Scott
David Stras joined the University of Minnesota Law School faculty in 2004 and quickly established himself as a rising star, both as a teacher and a scholar. Only two years after he arrived, he was named the Stanley V. Kinyon Tenure Track Teacher of the Year. The award came as no surprise. Students quickly came to hold Professor Stras in the highest regard. They appreciated his insights, the time he devoted to preparation, and his passion for his subject. Equally important, they knew how much he cared about them. His enthusiasm in class was apparent and infectious. Full tribute here.
Exploring the Connections Between Adoption and IVF: Twibling Analyses
Susan Frelich Appleton and Robert A. Pollak
This essay responds to Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, in which I. Glenn Cohen and Daniel L. Chen analyze what they describe as an arm-chair principle called “the substitution theory”–the claim that facilitating treatment for infertility, including subsidizing in vitro fertilization (IVF), decreases adoptions. Cohen and Chen venture well beyond the arm chair, closely interrogating the substitution theory both normatively and empirically and concluding, contrary to the substitution theory, that IVF subsidies do not decrease and might actually increase adoptions. Full response here.
Toward a Theory of Extraterritoriality
In this Response to Jeffrey Meyer’s Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, Professor Gibney commends Professor Meyer’s efforts to theorize a comprehensive framework for understanding the extraterritorial scope and limits of United States law. Professor Meyer’s proposal would give a territorial reading to U.S. law unless (1) Congress expressly calls for an extraterritorial application or (2) there is a jurisdictional link to the United States and what is being regulated under U.S. law is also regulated by the law of another state. Professor Gibney argues, however, that the scope of U.S. law should be defined in terms of America’s obligations under international law. Full response here.
Comment: “Anticompetitive Effect”
Daniel R. Shulman
Anticompetitive Effect by Judge Cudahy and Mr. Devlin focuses on a critical issue in antitrust jurisprudence: whether anticompetitive effect should be evaluated under an “aggregate welfare approach to competition” or under a “consumer welfare” approach. What hangs in the balance is the future efficacy of both public and private enforcement. This Comment traces the history of antitrust jurisprudence, and, in particular, the trend since the mid-1970s of the original intended targets of antitrust regulation ascending to positions of authority and becoming, in essence, the regulators. This Comment argues that this history demonstrates that antitrust law has become an instrumentality for preserving the very concentrations of economic power the antitrust laws were enacted to prevent, remedy, and limit. This has occurred not only through radical changes in substantive antitrust law, supported by economically suspect, if not discredited, free market Chicago school dogma, but also through equally radical changes in procedural law, which have made enforcement litigation into an obstacle course for plaintiffs and considerably narrowed the federal courthouse doors. The choice between adopting the aggregate welfare approach or the consumer welfare approach in determining anticompetitive effect will have profound practical consequences in antitrust enforcement. Only by choosing the aggregate welfare approach, as Judge Cudahy and Mr. Devlin urge, is there a possibility of halting or reversing the historical trend and revitalizing antitrust enforcement. Full comment here.