Recent antitrust decisions and policy initiatives by both the Department of Justice (“DOJ”) and Department of Transportation (“DOT”) have shaped the current U.S. airline landscape. The consolidation trend is not unique to the U.S. domestic air transportation market. The emergence of three global airline alliances—together accounting for around 80% of air traffic across the transatlantic, transpacific, and Europe–Asia markets—has transformed the international air transportation market as well. This Note evaluates the results of the DOJ’s antitrust approach to U.S. airline mergers and reconciles these results with the DOT’s “public interest” emphasis in determining airline applications for antitrust immunity (“ATI”). Given the current domestic market, it is likely that the remaining legacy carriers will leverage their respective global alliances and seek ATI with foreign airlines for continued network growth.
Part I of this Note tracks the tumultuous history of the U.S. airline industry from deregulation to its current health. Part II presents the legal framework, including U.S. antitrust laws, that govern domestic airline mergers and international ATI. Part III proposes practical solutions for the DOT to improve the ATI regulatory process and incubate open market competition, thereby better serving passengers and airlines by edging closer to deregulation.
How can one be expected to demonstrate something they are incapable of, and what if that something meant the difference between freedom and remaining in prison? Thousands of inmates in California face this issue, and many are kept incarcerated for life without any recognition of their cognitive capabilities.
Take Maria’s story, for example; she is a client I became familiar with as a student working in the University of Southern California Gould School of Law’s (“USC”) Post-Conviction Justice Project (“PCJP”). Maria had extensive cognitive impairments that went undiscovered while incarcerated in a California prison for nearly three decades. Because of this, Maria was denied parole an astounding six times with the parole board citing lack of “insight” each time. Maria’s continued denials persisted despite state-issued psychological evaluations concluding that her intellectual functioning was minimal.
Unfortunately, Maria’s predicament is not uncommon. There are several similarly situated inmates who are unable to effectively advocate for themselves due to their cognitive impairments, yet they are not provided with necessary accommodations. As a result, individuals are denied parole even though they do not pose a current danger to society. This culminates in the gravest deprivation of liberty without due process—denial of their freedom.
Lawmakers are looking for Affordable Care Act savings in the wrong place. Removing sick people from risk pools or reducing health plan benefits—the focus of lawmakers’ attention—would harm vulnerable populations. Instead, reform should target the $210 billion worth of unnecessary care prescribed by doctors, consented to by patients, and paid for by insurers.
This Article unravels the mystery of why the insurance market has failed to excise this waste on its own. A toxic combination of mismatched legal incentives, market failures, and industry norms means that the insurance market cannot solve the problem absent intervention.
One of the most enduring debates in corporate law centers on why Delaware has become the dominant state in the market for corporate charters. Traditionally, two perspectives dominated the debate, the “race-to-the-top” perspective that sees competition among states as driving legal rules toward efficiency and the “race-to-the-bottom” perspective that sees competition among states as driving legal rules toward the interests of corporate managers. The two dominant perspectives have struggled to explain why approximately half of large companies incorporate in Delaware, while the other half incorporate in their home states. Whether the choices are attributable to the quality of state law, the characteristics of the companies themselves, or both has given rise to a large, but inconclusive empirical literature.
In many ways, Michael C. Hughes is an average American family man. He is a middle-aged father of four from Rochester, Minnesota. He has been married to his wife for twelve years. He has a broad, muscular frame and is partial to cowboy hats and wide belt buckles. But Hughes is unlike the average American family man in one fundamental way: he was born biologically female. Hughes is one of the more than 1.4 million transgender adults in the United States, a small but increasingly visible group of people who are currently facing a unique legal battle to use restrooms and single-sex facilities that align with their gender identity.
Hughes garnered publicity with a viral photo taken in a public restroom, in protest of “bathroom bills”—laws that require Hughes to use women’s restrooms and facilities, despite his gender identity. “Bathroom bill” is the common name for legislation that prohibits individuals from using bathrooms (or other private, single-sex facilities like locker rooms) that do not match their biological sex or sex markers on their identification documents, depending on the bill. Posing in front of the bathroom mirror in a women’s restroom, as female patrons look on questioningly, Hughes “presents” as a male—making him appear out of place in the restroom that nonetheless matches his biological sex. Hughes’ photo and its accompanying hashtag, “#WeJustNeedtoPee,” went viral in 2016, reflecting Americans’ rapt attention on transgender issues.
Bobby James Moore was twenty years old when he “fatally shot a store clerk” while robbing a grocery store in April 1980. On paper, this is a tragic felony murder, but behind the scenes lies a different story. Bobby was not a typical twenty-year-old; he did not understand “the days of the week, the months of the year, [or] the seasons.” Bobby could barely tell time, and he could not understand standard measurements or that subtraction is the opposite of addition. Bobby suffered an “abuse-filled childhood.” Bobby dropped out of high school due to “his limited ability to read and write,” and he lived on the streets after being kicked out of his home for being “stupid.” Bobby is intellectually disabled, and despite the evidence put forth demonstrating his disability, he was sentenced to death pursuant to a set of factors used by a Texas court; these factors are largely based on stereotypes and caricatures from literature. As the United States Supreme Court decided in 2017, this was a gross violation of the Eighth Amendment’s protection against cruel and unusual punishment to rely on “wholly nonclinical” factors rather than the “medical community’s diagnostic framework.”
This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases—landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to “incorporate” the territories into the union, which it never did. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government’s discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.
The Article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. While racism was present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights.
Human beings should live in places where they are most productive, and megacities, where information, innovation, and opportunities congregate, would be the optimal choice. Yet megacities in both China and the United States are excluding people by limiting the housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Back-Yard (“NIMBY”) homeowners are taking over megacities in the U.S. and hindering housing development. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” Yet the growth-dominated megacities of China demonstrate that relying on business and political elites to provide affordable housing is a false hope. Our comparative study of the homeowner-dominated megacities of the U.S. and growth-dominated megacities of China demonstrates that the origin of exclusionary megacities is not a choice between growth elites and homeowners, but the exclusionary nature of property rights. Our study reveals that megacities in the two countries share a property-centered approach, which prioritizes the maximization of existing property interests and neglects the interests of the ultimate consumers of housing, resulting in housing that is unaffordable. Giving housing consumers a voice in land use control and urban governance becomes the last resort to counteract this result. This comparative study shows that the conventional triangular framework of land use—comprising government, developers, and homeowners—is incomplete, and argues for a citizenship-based approach to urban governance.