Sherman’s Missing “Supplement”: Prosecutorial Capacity, Agency Incentives, and the False Dawn of Antitrust Federalism
Article by Daniel E. Rauch (March 13, 2020)
When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a “supplement” to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.
Using historical and empirical research, this Article establishes that the best explanation for the early failure of state antitrust enforcement was prosecutorial incapacity: state attorneys general and local prosecutors simply lacked the incentives and resources to prosecute antitrust cases. Along the way, the Article also offers a rigorous rejection of each main alternative explanation proposed for the early failure of state antitrust enforcement, including those based on doctrinal constraints, state statutory texts, and contemporary politics. Finally, the Article closes by suggesting implications this historical insight might have for the cutting-edge issues facing today’s state antitrust enforcers, from local efforts to control healthcare costs to multistate actions against Silicon Valley behemoths like Apple and Amazon.
Read the full Article here.
Volume 68, Number 4
Failing to Keep the Cat in the Bag: A Decennial Assessment of Federal Rule of Evidence 502’s Impact on Forfeiture of Legal Privilege Under Customary Waiver Doctrine
Article by Jared S. Sunshine (June 3, 2020)
Note by Susan A. Jacobsen (June 3, 2020)
Note by Patrick J. Lipaj (June 3, 2020)
We are excited to announce that the following Associates have been selected to have their law review notes published in Volume 69 of Cleveland State Law Review during the 2020-21 school year:
Taylor Hagen (Campaign finance reform in Ohio)
Izaak Horstemeier-Zrnich (Copyright small claims courts)
Hannah Kraus (Ohio’s anti-boycotts, divestment, and sanctions law)
Jordan Mason (Constitutionality of Ohio’s familial DNA searches)
Randy Pavlicko (Website accessibility under the Americans with Disabilities Act)
Emily Rees (Workplace harassment)
Jimmy Scherer (Cleveland’s eviction laws)
Natasha Wasil (Postnuptial agreements in Ohio)
Also, the following students will be published on our online journal, Et Cetera:
Bryan Fisher (Sports gambling, data, and college athletes)
Luke Goode (College athletics and the suicide rule)
Liz Jackson (Immigration enforcement in the Trump Era)
Caitlin Steiner (Easing federal banking restrictions for marijuana-related business)