Article

The New Antitrust Federalism

“Antitrust federalism,” or the rule that state regulation is not subject to federal antitrust law, does as much as—and perhaps more than—its constitutional cousin to insulate state regulation from wholesale invalidation by the federal government. For most of the last century, the Court quietly tinkered away with the contours of this federalism, struggling to draw a formal boundary between state action (immune from antitrust suits) and private cartels (not). But with the Court’s last three antitrust cases, the tinkering has given way to reformation. What used to be a doctrine with deep roots in constitutional federalism is now a doctrine with close ties to the federal administrative state where courts sit in judgment of an agency’s decision-making procedure.

The new antitrust federalism conditions antitrust immunity not on the fact of state regulation but on the process of that regulation. Now, only regulation created by a politically accountable process is beyond the reach of federal antitrust suits, exposing vast areas of state regulation to new antitrust scrutiny. This Article argues that the new antitrust federalism is an improvement on the old, both because the old boundary model was unworkable and because the new regime addresses the “inherent capture” problems at the heart of modern state regulation. But this Article also warns that if the Court does not give accountability review real bite, it may have to abandon the new antitrust federalism and opt for a nuclear option that could portend the end of antitrust federalism altogether.

Competitive Public Contracts

Public agencies in the United States have long contracted with private firms for a wide range of public goods and services. Together, public procurement contracts account for more than ten percent of the entire U.S. economy. Yet examples of breathtaking cost overruns, delays, and substandard contractor performance are ubiquitous, particularly in the high-stakes realm of large-scale public projects. Despite the magnitude of this contractor-performance problem, it remains largely unexplored by legal scholars. This Article argues that the contractor-performance problem is at its core a contract-remedies problem: Governments lack an effective, credible remedy for poor contractor performance. Although a number of scholars have assumed that the remedies used by private buyers can be similarly utilized by government buyers, that is not the case. Because of the unique political and institutional context in which the government operates, neither traditional contract damages nor the alternative, reputation-based remedies often utilized by private firms translate to government contracts. This Article proposes an alternative remedial approach that can be utilized effectively by government buyers. By horizontally dividing contracts between multiple, competing firms, a government can foster ongoing competition to incentivize peak performance and, when necessary, obtain cost-effective substitute performance by terminating one contract and exercising a call option for the same scope of work in a second contract. Through thoughtful design, accounting for public and private incentives and the nature of the good or service being procured, nearly any public procurement contract can be divided—and remedied—in this manner.

A Theory of Copyright Authorship

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This Article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.

After setting out the theory, this Article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

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