Basically it should be illegal per se but since the 70's the Court has really limited how they apply that and so courts generally prefer to do a competitive analysis/quick look first. In this case, the argument might be that since the cost to consumer doesn't increase, it isn't a naked price fix so it's not per se illegal.
As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort
Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.
Judge Bork was proposed as a candidate for the US Supreme Court. While the Senate was reviewing his nomination they began discussing his actual views on various topics which were so abhorrent that the Senate voted not to confirm him. The conservative community complained he had been treated unfairly and coined the term.
The Senate voted not to confirm Bork because Democrats controlled the Senate 55-45 and had the power to insist on a more ideologically liberal nominee. (Which I think is a fair use of the advice and consent power by the way. And a successful gambit, because they got Anthony Kennedy, who swung liberal on many key votes.)
Bork was subject to attacks on his views of constitutional law. Many of the attacks were just not true. The Wikipedia write up on this is quite even-handed: https://en.wikipedia.org/wiki/Robert_Bork.
Apart from that, “abhorrent” is not a word that makes sense in discussing legal interpretation. It’s a category error. For example, Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional. To this day, the law rests on shaky Commerce Clause footings with all sorts of exceptions and caveats to avoid conflict with the first amendment freedom of association and to overcome Congress’s lack of authority to regulate morality directly.[1] The attacks on him over it was midwits having an emotional reaction to a complex legal debate that was beyond their understanding.
Bork’s antitrust theories, and its foundation in armchair economics analysis, is far better target for criticism. Ironically, that wasn’t the subject of Ted Kennedy’s speech against his candidacy.
[1] You can see this tension in the laws themselves. Why doesn’t the Fair Housing Act apply to small, owner-occupied rental properties? Because Congress lacks the constitutional power to force people to not be racist in their choice of who they live with. In more than half a century, liberals haven’t even seriously attacked these carve outs even though they would seem like low hanging fruit.
> Bork believed the Civil Rights Act of 1964 (which his party got through Congress) was unconstitutional.
Um: You're massively overstating the case for GOP involvement in the Civil Rights Act. The Act was muscled through by President Lyndon Johnson — a Democrat and protégé of LBJ; liberal congressional Democrats; and a few (and now-extinct) liberal Republicans. The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."
> The racist, segregation-forever southern Democrats, who as powerful committee chairs had blocked civil-rights legislation for decades — mostly died off or became Republicans in the 1970s and 1980s thanks to the GOP's "Southern Strategy."
Why would racists mad about Democrats supporting the Civil Rights Act of 1964 respond by switching to the party that had pushed through every other Civil Rights Act before it? Of course, they didn't. Of the 21 Democrat Senators who had opposed the Civil Rights Act, just one became a Republican.
The landslide GOP wins in 1972, 1980, 1984, and 1988 obscure subsequent trends, but in 1976, Carter still won the usual southern states. Even in 1980, a generation after the Civil Rights Act of 1964, Reagan won New York by a larger margin than he won Alabama and South Carolina.
Southern realignment was driven by economic development. The south voted democrat in 1950 for the same reason black people did: because they were poor and Democrats were the New Deal party. In 1950 Illinois's pre capita income was double that of Alabama: https://fred.stlouisfed.org/release/tables?eid=257197&od=195.... Staring in the 1960s, the south experienced rapid urbanization and economic development (the "New South"). The south's competitive advantage against the north was lower taxes, lower regulation, and Right to Work laws--all Republican policies. By 1990, Illinois's per capita income was only 33% higher than Alabama.
This is clearer by looking at Virginia--the Capital of the Confederacy. Virginia was part of the Solid South in the early 20th century. It voted for FDR by more than double the national margin in 1944. But by 1960, Virginia was pretty reliably Republican, voting for Nixon in 1960 over JFK (even though JFK won deep south states like Georgia by 25 points). You can't explain Virginia's flip by pointing to racial politics. The reason it flipped was because Virginia industrialized earlier than the other southern states. In 1950, Virginia's per-capita income was already halfway between Alabama and Illinois. In 1970, Illinois was only 10% ahead of Virginia, but was still 50% ahead of Alabama. The other southern states followed the same GOP shift, they just did so decades later because their economies industrialized decades after Virginia's.
The "southern strategy" narrative is a tremendous example of white people's gullibility when it comes to race issues. It's based almost entirely on one 1981 interview with Lee Atwater, who didn't even work on the Nixon campaign, or on Reagan's 1980 campaign. And it's based on a premise that's simply absurd if you think about it for a minute. The south flocked to republicans in the 1980s to punish democrats for a law that Democrats had voted for in 1964 (but which Republicans had voted for by an even larger margin)--nevermind the fact that, during this time, the south built an economy on siphoning jobs from blue states through business-friendly GOP policies. Also ignore the fact that the major issue in the 1970s and 1980s when all this was happening was the threat of the communist, atheist Soviet Union, where southerners naturally fit into the GOP bloc.
> Why would racists mad about Democrats supporting the Civil Rights Act of 1964 respond by switching to the party that had pushed through every other Civil Rights Act before it? Of course, they didn't.
Your revisionism is pretty glaring to anyone who was paying attention during the mid-1960s, as I was — my USAF dad was stationed in east Texas then, which was more deep South than Old West.
Let's just say we have very different takes on what can motivate humans, individually and in groups. At the risk of sounding condescending: I used to feel somewhat the way you seem to. My naively-rationalist and very-judgmental views evolved as the years went on. The evolution was driven largely by life experience, which drove home the brute facts of human inadequacy, irrationality, and just plain fuck-ups — principally my own, along with those of friends and loved ones — along with the pervasive role of random chance. It took quite a while to figure out how my rationalist, judgmental worldview could accommodate those brute facts (spoiler: it couldn't).
Highly conscientious white people often can’t view these issues logically. They get hung up on moral outrage over racism, which has made them susceptible to the decades of emotional blackmail and misinformation peddled by the left.
Imagine a robot or alien who has no moral reaction either way to individual prejudice. Do you think they’d analyze the history and reach the same conclusion? I think the robot would realize that you’ve got a part of the country that was building its economy on deregulation and low taxes. And it was also the most religious part of the country, at a time when the defining issue globally was the atheist, communist soviet union. Of course that region shifted to the GOP.
Certainly social- and economic considerations were factors in the southern white migration to the GOP. But it was no coincidence that Ronald Reagan gave a(n in)famous "states' rights" speech in Mississippi in his 1980 presidential campaign [0]. This followed Nixon's southern strategy [1].
Let's get back to the topic at hand [2], namely your assertion that it was Robert Bork's party — the GOP — that supposedly got the 1964 Civil Rights Act through Congress. Yes, liberal northern Republicans such as Sen. Everett Dirksen definitely contributed — as I said.
But you appear to be implicitly memory-holing the (northern) Democrats who drove the process from the White House and the majority in both the House and the Senate: President Lyndon Johnson; Sen. Hubert Humphrey; and Rep. Emanuel Celler. The Senate cloture vote to end the southerners' 60-day (!) filibuster was 27 Republicans and 44 Democrats.
While I generally agree with your foundation of the political switch, I just want to point out that elections in the 1970's through 1990's were still very regional. Southern candidates tended to do well in the South against candidates from California or the North, despite policy differences that would seem to strike the other way. The JFK/Nixon election was much more of an urbanization/rural divide as both candidates were from away.
Carter being a Georgia peanut farmer made a huge difference in GA, AL, and SC voting in the 1976 and 1980 elections. You have to remember, he was the first deep south president since the civil war - white voters especially really cared about that. He was just also a disaster of a president, which is a big reason he lost anyway.
I'm not saying current political conservatives are the cause, Bork was hugely influential beyond traditional conservative circles, particularly in antitrust law.
If you read Bork's work, especially The Antitrust Paradox, and if you study the caselaw prior to and post 1970's, you'll see a stark difference.
It was really a conservative idea at that point but I'd say it's more neoliberal, which has a strong backing in the democratic party and has for decades, beginning with Carter.
The per se analysis and application, particularly, is just massively different from the pre-Bork era. He's the single largest reason that the three main elements of cost, quality, and quantity as a standard for antitrust analysis has eventually boiled down almost entirely to cost, partially because it's so much easier to measure but also because he advocated for it as a mechanism to measure business efficiency.
One of the big problems of this is the change in fundamentals since Bork was writing in the 70's, particularly with union membership declining so heavily. He was countering a very strong and powerful union system and factored that into his analysis, and we just don't have that in the private sector any longer.
I've been working on a paper for a while about theoretically adding in wage and labor market analysis into the mix, particularly with monopoly and monopsony situations, but it's kinda stalled since I've been clerking.
Honestly, read the guy's book and read some cases if you're interested. You'll see it fairly quickly.
I think we basically agree. My point is that his ideas gained so much traction because neoliberalism was ascendant during this period. Law & economics started in the 1960s, and as you note, by Carter it had widely reshaped regulatory law in general.
>Unpopular opinion here... If you tread carefully you'll most likely not succeed. I am not American and I know you guys like to sue eachother for putting cats in microwaves and stuff so maybe this is not great opinion to have in America at the current moment.
It's not actually about personal suits, financial advice may fall into financial services regulations and that's regulated by the government of the US, EU, etc. so wherever the company is registered may have issues in addition to the potential of the regulations applying to the individual and not shielded by the company.
Yep. It's also worth noting that Trump didn't invent these charges. Many Jewish students sued, and the university president admitted:
> I know that many of our Jewish students, and other students as well, have found the atmosphere intolerable in recent weeks. Many have left campus, and that is a tragedy.
...
> The encampment has created an unwelcoming environment for many of our Jewish students and faculty. External actors have contributed to creating a hostile environment in violation of Title VI, especially around our gates, that is unsafe for everyone—including our neighbors.
Technically at the time of the arrest he was accused of criminal conduct, but not charged with criminal conduct. I believe he is still within the legally required timeline to be charged with criminal conduct, though he may be subject to deportation without such charges, we'll see.
Your second and third point is confused. The foundation for the government's belief they can deport Khalil is not the Alien Enemies Act (which is what I assume you mean, as there is no Alien and Seditions Act-the term "Alien and Seditions Acts" refers to four separate acts, one of which is the Alien Enemies Act), it's the Immigration and Nationality Act, the same basis Trump tried to use for Executive Order 13769. More specifically, I think they're using 8 U.S.C. § 1227(a)(4)(C)(i).
That said, the government is absolutely using the Alien Enemies Act to round up people and send them to El Salvador.
>If these people don't have rights to free speech and due process then nobody does.
So this is an interesting legal question because non-citizens definitely do not have complete free speech protections, but the border of where their speech is protected vs unprotected is not entirely clear. It's not true that if they don't, nobody does - it is absolutely clear that citizens of the United States do have rights to free speech and due process. That has been established many times.
I'm aware that Khalil's case involves the McCarthyesque Immigration and Nationality Act because he's a lawful permanent resident where non-citizens are being processed under things like the Alien Enemies Act. Let's not get lost in the weeds here.
> So this is an interesting legal question because non-citizens definitely do not have complete free speech protections
All persons on American soil are entitled to constitutional protections [1].
Consider the implications if they're not entitled to due process, for example. The government could detain a citizen and deport them without a hearing to a foreign country and then, when told to return them by a court, claim they have no jurisdiction over that foreign country. The administration is actually using the last argument.
You might say "they can't deport citizens". They are in effect arguing they can and there's no remedy for you if you're mistakenly deported, possibly indefinitely detained.
That's what due process is for: to establish if there is a lawful basis for the deportation.
>I'm aware that Khalil's case involves the McCarthyesque Immigration and Nationality Act because he's a lawful permanent resident where non-citizens are being processed under things like the Alien Enemies Act. Let's not get lost in the weeds here
That's not why. Both are non-citizens. The reason the different laws are being applied matters, because they are totally different legal fights, taking place for different social and political reasons.
>All persons on American soil are entitled to constitutional protections [1]
Some, but not to the same extent as citizens where speech is concerned. For example, foreign nationals are not allowed to spend money to directly support a candidate for elected office, though they may spend to influence an issue. Cf Bluman v. FEC with Citizens United.
It's a matter of degrees, and certainly is impacted by immigrant status and ties to the United States. From a free speech issue and where concerning the speech I have heard from him, I think it's clear that Khalil should not be subject to any kind of government restriction or punishment. That said, it seems likely that he may be deported for other reasons.
They already "accidentally" deported a citizen in Maryland and are arguing they can't get him back because he is in El Salvador where they have no jurisdiction. It is a test to see if they can get away with it.
He (Kilmar Abrego Garcia) is not a citizen, nor did he enter the US legally. He entered the US illegally as a teenager but was granted temporary protected status because of a credible fear of gang violence if he returned home[1]. A US citizen cannot legally be deported[2] unless they are first denaturalized (which is extremely rare and has not occurred under Trump).
First they would have to convince the Supreme Court that birthright citizenship isn't in the Constitution, which seems like a long shot even for this court.
Look up the definition of "property". You'll find that it says nothing about it needing to be tangible. It literally just means "something that can be owned".
What you are saying is inherently contradictory. The "physical disc" is comprised of tiny peaks and valleys. If I "own the disc" why can I not do whatever I want with those peaks and valleys?
No, what I'm saying is not at all contradictory. The separation between the physical medium and artistic work it carries is not a complicated concept to understand.
It is for the same reason you do not own the story in a book you buy. You have a physical stack of paper that's yours to do whatever you want with: read it for your pleasure, prop open the door with it, burn it if you like. However the concept of the story that the book conveys – the particular ordering of the words – is not yours, it (by default) belongs to the person who created it, as they put effort into the creation of that art.
Imagine the world you are fantasizing. You spend a year writing a book, you go to a publisher to have it published. You give them a copy for consideration. You don't hear anything back and then, later, find they have taken your story and published it themselves. It becomes a top selling book. Intellectual property rights are originally envisaged to protect artistic creators from this exploitation, otherwise why would they bother to create in the first place?
(Unfortunately, there is still a lot of large organisations exploiting artists, as they largely control the media that exposes people to art in the first place. This means artists have to sign away their rights in order to get an advance and the promise of exposure.)
False. It's to protect citizens first and personal property second. Private property is invalid and a legal construction and assumes the personhood of corporations. It's this false equivalency that gives these orgs power over us. Our legal system should prioritize actual people. Anything else is morally bankrupt. A lot of people get mad because hearing the truth hurts.
To protect real property. Violations of copyright should be strictly civil issues. Why are the people who arrest murderers and vandals involved in this?
I honestly don't see why the cops should arrest someone that burgles an office building (say of a film producer) and not someone that gives away the content they paid to make for free. In what way is it different?
Ah, yes, that's a good argument for property definition. I agree that it seems excessive to use armed force to enforce this, I was more questioning how to differentiate the two situations in law so cops don't have to exercise that judgement.
Interestingly that is the exact opposite of the Chesterton's fence concept - it illustrates that it is much better to grasp the system as it exists before attempting to change it, as then you can learn why a Chesterton's fence exists without tearing it down.
So I won't go into too much detail given the nature of the forum, but beyond the complete change in tone that Jackson brought to the presidency, something that Trump is also routinely criticized for, prior to Andrew Jackson we had an entirely different banking system.
He engaged in a conflict with the central bank overseeing national finances and banking and vetoed the bill renewing its charter, in part because he perceived the bank as supporting his political opponents. It still had four years to go, but the next year he unilaterally pulled all federal deposits from the bank, putting them in smaller state banks. This crippled the Second Bank of the United States with no Congressional approval or oversight. In fact, he was officially censured by the Senate for doing it.
Some other similarities in tone or type:
Jackson wasn't initially taken seriously as a presidential candidate - he was a political outsider and "a man of the people." He thought the federal government was corrupt and against him. This feeling was not helped by his winning the popular vote in the election of 1824 but it being taken away by the electoral college and ultimately decided by the House of Representatives in a "corrupt bargain."
He basically replaced his entire cabinet because of a conflict between the wives of his cabinet members and the wife of his chief of staff, who had married the widow of another cabinet member after a rumored affair and that member's subsequent suicide.
He had a "kitchen cabinet" of unofficial and unappointed advisors who had extremely significant power in the Federal government, such as Martin Van Buren (who would later become VP), John Overton, and Francis Blair (Editor of the Washington Globe), including some of the richest people in the country at the time - some of whom were bankers, by the way, and directly benefited from the destruction of the 2nd National Bank.
He criminally investigated his presidential predecessor's staff, alleging (and allegedly finding) corruption.
He was accused of being a dictator and a despot, and rattled his saber against Europe, almost going to war with France.
He nominated and successfully appointed completely unqualified judges.
We didn't have the current system of executive agencies until the latter half of the twentieth century, but if we did Jackson would probably have dismantled it.
I understand, but I was not the one who introduced Andrew Jackson as a comparator. I see that our friend has provided some of his arguments above. That's good.
I find it hard to compare the two men in question. They will have their similarities, being humans and politicians. But Andrew Jackson lived two hundred years ago. The modern era has seen the USA become a "superpower" with brokering influence (political, financial, military) all around the world.
The current administration appears intent (despite its slogans) on dismantling its own influence in the world... as well as Democracy. Nations and economic zones that considered themselves long-standing allies only a month ago now openly express distrust.
As I learned it, since BMI & ASCAP v. CBS, in 1979, it's essentially been that the per se rule is applied when the courts have enough experience with an accused restraint to know that it is so plainly anticompetitive, and so often lacks any redeeming virtue, that further inquiry in any given case is almost certainly wasted effort
Bork and his acolytes really screwed us, basically, turning a half-baked understanding of economics into a justification to ignore legislation and 60+ years of jurisprudence, and that's carried the day since.