The Bluebook has transcended its role as a legal citation manual. As the citation for the flagship law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial U

The regulation of firm size and structure, in agriculture and industry, assumes that certain forms of market structure and industrial organization are economically or socially pernicious. Large farms and large firms, according to this view, are reservoirs of economic and social evils. The law often targets these purported evils by restricting the formation and structure of firms. Structural regulation exploits the connection between the internal firm organization and overall market structure.

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entr

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entr

The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept. This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the ...

A specter is haunting agriculture, the specter of agroecological ideology. Extreme agroecological rhetoric transparently disguises a willingness to sacrifice environmental objectives whenever they conflict with the pecuniary interests of incumbent farmers. Agroecological ideology conceals an ugly truth about agriculture: farming is not an environmentally benign activity. In particular, the legal controversy over recombinant bovine somatotropin demonstrates how an agroecological response to ne

A specter is haunting agriculture, the specter of agroecological ideology. Extreme agroecological rhetoric transparently disguises a willingness to sacrifice environmental objectives whenever they conflict with the pecuniary interests of incumbent farmers. Agroecological ideology conceals an ugly truth about agriculture: farming is not an environmentally benign activity. In particular, the legal controversy over recombinant bovine somatotropin demonstrates how an agroecological response to new biotechnology can favor producer incomes over consumer welfare and environmental integrity. O brave moo world, that has such creatures in it!

This article tells the story of Wickard v. Filburn, 317 U.S. 111 (1942). After providing a survey of American agriculture and its regulation between the World Wars, this article describes the constitutional landmark that began as a controversy over Roscoe Filburn's 1941 wheat crop. Wickard v. Filburn represents a pivotal moment in the Supreme Court's effort to define Congress's power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Greater turmoil over commerce clause jurisprudence has breathed new life into Wickard v. Filburn.

This essay proposes a little housecleaning in the law of communications regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 369 (1969), deserves to be transferred in its entirety from the realm of doctrine to that of history. Defenders of Red Lion and the discourse-based model of free speech jurisprudence symbolized by that decision seek to preserve one communicative niche where the public at large does absolutely nothing besides watch or listen. Appeals to civic republicanism and other lo

This essay addresses questions of truth and beauty, of poetry and fidelity, as applied to legal education and ultimately to law. After discussing how law schools can most faithfully translate their teachings to lawyers' real concerns, I shall ponder how the law itself reconciles its duty to truth with its practitioners' longing for beauty.

Telecommunications mergers are at once a historical mirror and a harbinger of the legal future. Since the passage of the Telecommunications Act of 1996, no significant telecommunications merger has failed to receive regulatory approval in the United States. The Telecommunications Act of 1996 has accelerated the trend toward consolidation and concentration. Having devoted most of its energy on issues doomed to become technologically and economically obsolete, the Act failed to anticipate the technological conditions (especially the emergence of the Internet) that drove telecommunications carriers to consolidate. Nevertheless, possible avenues for reform remain open should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.

Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. Katrina exposed flaws in virtually every aspect of disaster management at every level of American government. The magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability. There is no such thing as a natural disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies - the grand social exercise called law among the ruins.

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), decreed a medium-specific approach to first amendment controversies involving radio and broadcast television. Although the Supreme Court has never applied Red Lion's scarcity rationale to any medium besides broadcasting, the Court has frequently resolved free speech disputes by drawing analogies to broadcasting. Red Lion declared that courts should condition constitutional protection on the technological and economic characteristics of a regulated communications conduit. It specifically concluded that broadcasting, as a conduit, merited less rigorous first amendment review because of scarcity, the historic extent of governmental involvement in broadcasting, and the ongoing public interest in access to this intensely regulated medium. Most judicial and academic objections to Red Lion have addressed scarcity. This article takes aim instead at Red Lion's prescription of conduit-specific first amendment review, urging close ...

The neologism "biolaw" describes all areas of law informed by the life sciences. Health law, bioethics, environmental law, natural resources law, agricultural law, food and drug law, biotechnology, law and neuroscience, law and behavioral psychology, and evolutionary analysis of law all share a common scientific core. Lawyers and legal scholars too often address these topics in isolation. This piecemeal approach undermines the scientific cohesion that connects these areas of legal practice and theory. The common core, of course, is biology - all of the life sciences, unified in pursuit of subjects considered worthy of legal attention. This essay defines biolaw as the field of law and the life sciences in its entirety. Part I of this essay will provide a brief guide to the various branches of biolaw. Part II offers some thoughts on the intellectual significance of treating biolaw as a scientifically coherent enterprise. In other words, I will first define biolaw. Then I will ...

In this essay, our third and last in a series, we employ our previously developed techniques to measure the power of the Justices in the Rehnquist Court over its full 11 year run. Once again, Justice Kennedy rises to the top of our rankings, as he had done earlier. Our methods identify Justices Souter, Breyer and Ginsburg as being notable either for their influence or lack thereof. In addition, we rejoin the debate on the connection between being the median justice and being the most powerful one. We question whether even the most sophisticated methods of finding the median justice are adequate to the task of assessing power on the Court.