Today I went for the last run of 2010, a casual 50-minute cruise from home out to Rock Creek Park, past the stables and Park Police headquarters, up past the old ford over Rock Creek (which my stepfather recalls crossing when he was a child living in DC) and back home via Military Road. I started slow and stiff but I warmed up and had a strong if not fast last 20 minutes. Had I thought when heading out it was the last of the year I might have tried something more momentous.
I'm supposed to add 3-4 days of strength training weekly for the next four or five weeks. I couldn't bring myself to head in to the gym (why are we members there again?), so I did some calisthenic-style leg exercises on the back porch and decided to finish with the walking lunge. The assignment is to hold a barbell over the head while striding and dipping the back knee more or less to the ground. With not a barbell in sight, I tried one of the summer wheels from my car that I have stacked against the fence. I can only imagine what a sight that presented for the neighbors. Rocky Balboa would be proud.
Friday, December 31, 2010
Thursday, December 30, 2010
Not Watching Football
This is a great time of year, when I will not be watching football. A few notes about that:
1. There is no better time to ski than on Super Bowl Sunday. Lift lines are short, the snow is good and the lifties post the scores on the bulletin boards usually reserved for notices like "Joe Smith report to the first aid shack".
2. Sunday afternoons in winter are great times to run or to catch a Kennedy Center matinee.
3. None of the Redskins, the Big Red or the Bearcats are worth watching in any event. And I haven't yet become enamored with the Colts.
4. One day, while VAPping in Cincinnati, I picked up the paper (Enquirer) and saw the words "Who Dey" spread all over the front page. No joke. I understood it was a cheer of some local renown, but I couldn't believe that a paper that purports to report on important events devoted that much ink to the Bengals.
5. Once in high school I was driving to watch friends play baseball for the local high-school team. Dad made an off-hand remark to the effect of "one would think you'd want to play yourself, rather than watch others play." That made quite an impression.
Admittedly, there are many who hold contrary views. I'd love to hear them!
1. There is no better time to ski than on Super Bowl Sunday. Lift lines are short, the snow is good and the lifties post the scores on the bulletin boards usually reserved for notices like "Joe Smith report to the first aid shack".
2. Sunday afternoons in winter are great times to run or to catch a Kennedy Center matinee.
3. None of the Redskins, the Big Red or the Bearcats are worth watching in any event. And I haven't yet become enamored with the Colts.
4. One day, while VAPping in Cincinnati, I picked up the paper (Enquirer) and saw the words "Who Dey" spread all over the front page. No joke. I understood it was a cheer of some local renown, but I couldn't believe that a paper that purports to report on important events devoted that much ink to the Bengals.
5. Once in high school I was driving to watch friends play baseball for the local high-school team. Dad made an off-hand remark to the effect of "one would think you'd want to play yourself, rather than watch others play." That made quite an impression.
Admittedly, there are many who hold contrary views. I'd love to hear them!
Monday, December 27, 2010
Antitrust Proceduralism
It's that time of day when after two cups of coffee I start having ideas that I will likely never bring to fruition. (It's also the time of day when I'm most vulnerable to suggestions that I take on new projects, when two symposium pieces and a paper in the course of the next six months sounds completely do-able. Spencer asks (post below) how to say "no"; my personal answer is, stay off the caffeine. I've been looking for a new year's resolution . . .)
But here's an idea on which I wonder if anybody has comments: Antitrust Proceduralism. I recently canvassed the surprisingly broad body of writing on schools of antitrust thought, including what are sometimes almost silly debates about whether the writer's forebears were more influential in the development of the law than were another writer's forebears. (My dad can beat up your dad!) I find myself thinking that none of the schools of economic thought are the leading candidates for greatest influence on the modern state of federal antitrust law. Rather, it is the antitrust proceduralists, led by none other than retired Justice David Souter. (To acknowledge two intellectual debts: Amy Wildermuth (Utah) wrote a short piece a few years back in the Northwestern Law Review's online journal, "Colloquy," comparing Twombly with another Souter procedural decision, and bemoaning his getting both wrong. When I read that, I thought instead of the Cal Dental/Twombly duo of opinions, in which the procedural rules the Court adopted, in both cases in opinions by Souter, arguably have a greater impact on antitrust enforcement than any substantive rule of law. My co-author and mentor Mark Anderson also influenced my thinking on Cal Dental.)
For example, consider the fury over Leegin (reversing Dr. Miles). What change in the law really has been wrought? With much respect to the furious, resale price maintenance has functionally been subject to the rule of reason, or even a rule of per se legality, since Colgate in 1919. All the Dr. Miles rule did was pad the pockets of capable corporate counsel, who advised clients in distribution agreements to insert the words "you must or else" instead of "would you please" in the paragraph of the agreement relating to retail pricing.
But Cal Dental takes an enormous class of agreements with a clear and direct impact on prices and output and subjects them to nearly the full rule of reason. The substantive legal standard is no different from what it used to be, but the ability of plaintiffs -- even the government -- to bring cases challenging advertising restrictions, no-competitive-bidding agreements, joint distributorships, certain kinds of information sharing agreements (other examples?) is dramatically curtailed vis-a-vis the world of the quick look. And little needs to be said about Twombly, a decision that many thoughtful antitrust proceduralists abhor. (I don't personally bemoan Twombly, but I may be the only one. Even the usual suspects on the anti-enforcement side tend to be quiet about the case, or applaud the result while saying it is badly reasoned.)
What school of thought drives these decisions? Maybe there's a little bit of Neo-Chicago in all this. Consistent with that idea, Mark and I described the application of the error-cost framework (while not adopting the Neo-Chicago label) in Twombly. I need to investigate further to see whether the same arguments underlie Cal Dental, but I don't think so. At least the false positive language was not employed there.
So would the argument hold? Does it need to be tested empirically first? Or perhaps this a no-duh proposition, which can be resolved by quoting Sir Henry Maine: "Substance is secreted in the interstices of procedure."
But here's an idea on which I wonder if anybody has comments: Antitrust Proceduralism. I recently canvassed the surprisingly broad body of writing on schools of antitrust thought, including what are sometimes almost silly debates about whether the writer's forebears were more influential in the development of the law than were another writer's forebears. (My dad can beat up your dad!) I find myself thinking that none of the schools of economic thought are the leading candidates for greatest influence on the modern state of federal antitrust law. Rather, it is the antitrust proceduralists, led by none other than retired Justice David Souter. (To acknowledge two intellectual debts: Amy Wildermuth (Utah) wrote a short piece a few years back in the Northwestern Law Review's online journal, "Colloquy," comparing Twombly with another Souter procedural decision, and bemoaning his getting both wrong. When I read that, I thought instead of the Cal Dental/Twombly duo of opinions, in which the procedural rules the Court adopted, in both cases in opinions by Souter, arguably have a greater impact on antitrust enforcement than any substantive rule of law. My co-author and mentor Mark Anderson also influenced my thinking on Cal Dental.)
For example, consider the fury over Leegin (reversing Dr. Miles). What change in the law really has been wrought? With much respect to the furious, resale price maintenance has functionally been subject to the rule of reason, or even a rule of per se legality, since Colgate in 1919. All the Dr. Miles rule did was pad the pockets of capable corporate counsel, who advised clients in distribution agreements to insert the words "you must or else" instead of "would you please" in the paragraph of the agreement relating to retail pricing.
But Cal Dental takes an enormous class of agreements with a clear and direct impact on prices and output and subjects them to nearly the full rule of reason. The substantive legal standard is no different from what it used to be, but the ability of plaintiffs -- even the government -- to bring cases challenging advertising restrictions, no-competitive-bidding agreements, joint distributorships, certain kinds of information sharing agreements (other examples?) is dramatically curtailed vis-a-vis the world of the quick look. And little needs to be said about Twombly, a decision that many thoughtful antitrust proceduralists abhor. (I don't personally bemoan Twombly, but I may be the only one. Even the usual suspects on the anti-enforcement side tend to be quiet about the case, or applaud the result while saying it is badly reasoned.)
What school of thought drives these decisions? Maybe there's a little bit of Neo-Chicago in all this. Consistent with that idea, Mark and I described the application of the error-cost framework (while not adopting the Neo-Chicago label) in Twombly. I need to investigate further to see whether the same arguments underlie Cal Dental, but I don't think so. At least the false positive language was not employed there.
So would the argument hold? Does it need to be tested empirically first? Or perhaps this a no-duh proposition, which can be resolved by quoting Sir Henry Maine: "Substance is secreted in the interstices of procedure."
Sunday, December 26, 2010
Indoor Bike Workout
Because it can't all be "Spinervals" DVDs. Pop in Pirates of the Caribbean. Get out of the saddle and work hard whenever there is sword-play. It gets rather intense toward the end!
Thursday, December 23, 2010
Current Project
I owe a law review editor a paper tentatively titled "The Past and Future of Extraterritorial Antitrust." It involves a certain amount of updating ideas in this paper and this paper. Because both those papers dealt primarily with private claims, however, I need to work somewhat on the public enforcement questions.
A new formula for off-season productivity: get way, way behind. So far it's working for me.
A new formula for off-season productivity: get way, way behind. So far it's working for me.
New Paper
I've got "Neo-Behavioralism?" up on SSRN. In it I'm finally going public with a theory I've been playing with at least since several of us ran the Dublin marathon in 2009. I'm eager to hear thoughts (and grateful for those I've already received).
Wednesday, December 22, 2010
Being Flexible, Zen and Married Twenty Years
These are actually two different topics. We were scheduled to travel to Madrid and Barcelona on Monday, but had to reschedule because of the weather in London where we were connecting. Now we are leaving Friday for a slightly longer trip to Barcelona only (through New York). That's the flexible and zen part.
In the meantime, got further along on grading, caught up on movies (Black Swan, King's Speech and Tron: Legacy), and worked in three short outdoor runs which would have been longer if different pieces of the lakefront path didn't resemble frozen Arctic tundra.
Today is our twentieth anniversary and we are off to dinner at Graham Elliot which now hold, among its many honors, a one star Michelin rating. More more importantly, it is located in the space where in a prior restaurant incarnation we held the very first colloquium dinner in April 2001!
(although in fairness, zen and flexible help on the marriage front also!).
In the meantime, got further along on grading, caught up on movies (Black Swan, King's Speech and Tron: Legacy), and worked in three short outdoor runs which would have been longer if different pieces of the lakefront path didn't resemble frozen Arctic tundra.
Today is our twentieth anniversary and we are off to dinner at Graham Elliot which now hold, among its many honors, a one star Michelin rating. More more importantly, it is located in the space where in a prior restaurant incarnation we held the very first colloquium dinner in April 2001!
(although in fairness, zen and flexible help on the marriage front also!).
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