This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.
Cost-Benefit Analysis Without the Benefits or the Analysis: How Not to Draft Merger Guidelines
Previous iterations of the DOJ/FTC Merger Guidelines have articulated a clear, rigorous, and transparent methodology for balancing the procompetitive benefits of mergers against their anticompetitive costs. By describing agency practice, clear guidelines deter anticompetitive mergers while encouraging procompetitive ones, ensure consistent and reasonable enforcement, increase public understanding and confidence, and promote international cooperation.
But the 2023 Draft Merger Guidelines do not. They go to great lengths to articulate the potential anticompetitive costs of mergers but with no way to gauge “substantiality.” Most significantly, they ignore potential benefits of mergers, which eliminates the need for balancing. In other words, the Draft Guidelines provide very little guidance about current practice, which increases enforcement risk and thus deters mergers, which may be the point of the Draft Guidelines. In this Article, we offer specific recommendations that do a better job differentiating pro- from anticompetitive horizontal, vertical, and tech mergers.
