Small Town, Big Rules: Leveraging Hart-Scott-Rodino to Protect Local Markets

Raymond Perez

Monday, December 30, 2024 - 1:30pm

In an era of deep political divides, one issue is gaining cachet across party lines: the need to protect and empower local communities through antitrust laws.  Meanwhile, legal scholarship is demonstrating that the original intent of the antitrust laws was, at least in part, localist—that is, antitrust enforcement should protect small businesses from being outcompeted by large corporations, promote local ownership, and encourage community involvement in economic planning.  And, as evidenced by its February 2024 challenge to the Kroger-Albertsons merger, the Federal Trade Commission’s (the “FTC”) appetite for blocking mergers to protect local communities is increasing as well.

However, the FTC has not yet pursued this localist justification to its fullest extent, and legislative dysfunction makes it improbable that Congress will enact new antitrust laws in the near future,  much less laws specifically implicating localist concerns. With this in mind, this Essay aims to outline a regulation that effectively leverages the FTC’s broad rulemaking authority to regulate competition in service of localism in a manner that places no outsized burden on the FTC, aligns with the FTC’s broader objective of fostering competitive markets, and is effective—not a mere line easily overcome by corporations.

 

State Action and Student Rights

Chris Yarrell

Thursday, April 18, 2024 - 2:15pm

Whether publicly-placed private school students with disabilities sacrifice their state and federal constitutional rights at the schoolhouse gate raises novel issues at the intersection of both liberty and equality. Despite the treatment that parentally-placed private school students with disabilities have received in judicial opinions and legal scholarship to date, neither forum has undertaken an exhaustive analysis on whether private day school and residential programs operate as state actors upon enrolling publicly-placed students with disabilities.

This Essay aims to fill that gap, especially given that the national population of publicly-placed students with disabilities amounted to approximately 90,000 students as of the last reauthorization of the Individuals with Disabilities Education Act (IDEA). As a normative matter, the Essay adds to the literature by demonstrating that publicly-placed private school students with disabilities should possess all of the same state and federal constitutional rights held by similarly-situated students enrolled in public schools. It then argues that private schools function as state actors once they enroll publicly-placed students with disabilities in their schools, thereby subjecting themselves to the same constitutional mandates that apply to their public school counterparts.

Food Price Narratives

Tammi S. Etheridge

Wednesday, April 17, 2024 - 10:15pm

Food is a necessity that all people need to survive. Moreover, according to the United Nations Office of the High Commissioner for Human Rights, there is also a legal right to food. Despite the natural and legal rights to food, today’s consumers have been faced with staggering food price inflation. American food prices are up approximately 30 percent when compared with early 2020 reports,  representing at least a forty-year high in both the food index generally and the food at home index specifically.  Consumers, in turn, are outraged.

Popular narratives about food prices share a common flaw—the absence of consumer welfare from the dialogue. Whether the food price index has increased due to consolidation or to the heavy hand of government in the market, the reality is that consumers are paying more for their groceries and meat, poultry, and egg prices are the single largest contributor to the rising cost of food people consume at home.  The most fungible part of a family’s budget is food.  The cause of the food price increases, whether due to consolidation or government overreach, is secondary to the reality that all consumers are paying more for their groceries, especially meat, poultry, and eggs, and that price increases disproportionately impact the most vulnerable sectors of society.  The emphasis going forward should thus be on how best to prioritize consumer welfare by decreasing the impact food prices have on American consumers.

Kickbacks and Corporate Concentration: How Exclusionary Discounts Limit Market Access for Community-Based Food Businesses

Claire Kelloway & Matthew Jinoo Buck

Saturday, December 30, 2023 - 3:45pm

Dominant food manufacturers and similarly dominant retailers abuse their market power to corner food retail markets and marginalize new and community-based producers. This paper will examine the effects of one of these unfair tactics: exclusionary payments. Dominant food vendors can offer retailers powerful incentives for not dealing with rivals or limiting business with them, such as offering rebates tied to reaching a set sales volume or a portion of all purchases. Using qualitative data from interviews with food retail professionals, industry studies, and academic research, we will analyze both the prevalence of exclusionary discounts in food retailing and the barriers they may pose to market access for new, small, or community-based food businesses.

Our research suggests that exclusionary payments do exist in the grocery and institutional cafeteria industry but are more widespread in the latter. These payments have become an important revenue stream to retailers since the 1990s. As exclusionary payments become a greater part of the food retail business model, dominant firms can corner the lion’s share of retailers’ food spending and shelf space, excluding rivals and limiting growth for new and community-based businesses. Policymakers have several legislative and administrative options to contain exclusive arrangements.

Law School Rankings and Federal Policies Regarding Disclosure About Affordability

Derek T. Muller

Wednesday, November 29, 2023 - 8:15pm

The affordability and value of higher education are matters of enduring public conversation. Increased scrutiny has led to increased disclosure. And for legal education, the affordability of legal education has been publicly debated. Affordability data has even been included in the rankings of law schools, which have recently faced pushback from law schools themselves. This essay describes the conversation and debate around law school rankings and affordability data, and it offers some ways for federal policy to help improve affordability disclosures for legal education.

Congress Must Fix The Inflation Reduction Act Before Millions Lose Treatment For Rare Diseases

Daniel E. Orr

Tuesday, November 21, 2023 - 2:00pm

In 1983, Congress enacted the Orphan Drug Act (ODA) to incentivize new treatments for rare diseases, called “orphan drugs.” The U.S. Food and Drug Administration (FDA) has approved over 700 new orphan drugs using these incentives. However, a poorly drafted section of the Inflation Reduction Act (IRA), which passed last year, is undoing them and may deprive millions of new treatments. This article describes the problem and some potential solutions.

The Misinformed & Misguided Prescription Abuse Prevention Act: A Response to Delfino

Robert Capodilupo & Jacob James Rich

Tuesday, February 7, 2023 - 10:45am

The opioid crisis continues to ravage communities across the United States, which has motivated policymakers to seek interventions that reduce reckless medical practices that put patients in danger of addiction. In her Yale Law & Policy Review Article, The Prescription Abuse Prevention Act: A New Federal Statute to Criminalize Overprescribing Opioids, Rebecca A. Delfino proposes novel legislation to reform how the federal government prosecutes doctors who overprescribe controlled substances. However, many of the statistics Delfino cites to justify her legislation, such as “[s]eventy percent of [opioid overdose] deaths involve an opioid that a doctor legally prescribed,” are not supported by the literature. This comment corrects the errors presented in Delfino’s Article and presents novel data describing the origins of the opioid crisis. According to the National Household Survey on Drug Abuse (NHSDA), Purdue Pharma’s OxyContin was rarely used for nonmedical purposes in the late 1990s and early 2000s. Overall, given that opioid prescribing has decreased every year over the past decade, further reductions in prescribing that follow Delfino’s proposed Prescription Abuse Prevention Act may further exacerbate opioid overdoses by orienting both pain patients and recreational users to illicit alternatives, like heroin and fentanyl.