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DebateCards-SFT-phase2-v2

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[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Growth is unsustainable and innovation can’t solve---degrowth spurred by crisis is the only chance to avoid extinction", "role": "system" }, { "content": "worldwide growth in affluence has\nincreased resource use and\nemissions far more rapidly than\nreduced through\ntech\naffluent citizens\nare responsible for most environmental impacts\nAny transition towards sustainability can only be effective if far-reaching lifestyle changes complement technological advancements\nexisting societies, economies and cultures incite\nexpansion and the structural imperative for growth\ninhibits necessary societal change\nscientists’ warnings confirm alarming trends of environmental degradation\nleading to profound changes in essential life-sustaining functions\nhumanity has failed to find lasting solutions to these changes that pose existential threats\nconsumption of affluent households worldwide is by far the strongest determinant and\nstrongest accelerator of increases of global environmental and social impacts\nHolistic studies of the environmental or social consequences of consumption usually involve the use of life-cycle assessment or input-output analysis that do not only account for direct\non-site, within-territory\nbut importantly also include indirect impacts occurring along global and complete supply chains8\nuse of such methods is important, because failing to detect the outsourcing of indirect impacts\nhas the potential to seriously undermine global environmental abatement efforts\nThe implications of consumption on scarce energy resources\nwas confirmed by many consumption-based analyses on indicators as varied as CO2\nraw materials\npollution, biodiversity, nitrogen\nscarce water use or energy\nMany of these studies employed multiple regression\nyielding clear evidence\nthat consumption is by far the strongest determinant of global impacts, dwarfing other socio-economic–demographic factors such as age, household size, qualification or dwelling structure\nWhilst the strength of the proportionality between consumption and impact decreases slightly towards higher incomes (measured by so-called elasticities), consumption was found to be a consistently positive driver\nthe impact intensity of consumption decreases, but absolute impacts increase towards higher consumption. Absolute decoupling, let alone an inverted-U-type Kuznets relationship, does not occur\nFor some social indicators, causal associations between consumption and impact are weak or non-existent. For example, withdrawing consumption from countries with unequal wages, child labour, corruption or severe occupational hazards may not influence those conditions, and might even exacerbate social problems.\nconsumption\ngrowth have mostly outrun any beneficial effects of changes in technology over the past few decades\nresults hold for the entire world\nas well as for numerous individual countries\nThe overwhelming evidence\nis that globally, burgeoning consumption has diminished or cancelled out\ngains\nFurthermore, low-income groups are rapidly occupying middle- and high-income brackets around the world. This can\nfurther exacerbate the impacts of mobility-related consumption, which has been shown to disproportionately increase with income\nthe elasticity is larger than one\nThis means that if consumption is not addressed\ntechnological solutions will face an uphill battle\nthey not only have to bring about reductions of impact but will also need to counteract the effects of growing consumption and affluence\nTo avoid further deterioration and irreversible damage\nthere will need to be a global and rapid decoupling\nit is highly unlikely that such\nwill occur\nrapidly enough at global scale and for other environmental impacts\nbecause renewable energy, electrification\ncarbon-capturing technologies and even services all have resource requirements, mostly in the form of metals, concrete and land31\nRising energy demand and costs of resource extraction\ntechnical limitations and rebound effects aggravate the problem28\npolicy makers have to acknowledge the fact that addressing environmental breakdown may require a\ndownscaling of\nproduction and consumption\nSince the level of consumption determines total impacts, affluence needs to be addressed by reducing consumption, not just greening it\nprevailing capitalist, growth-driven economic systems have not only increased affluence\nbut have led to enormous increases in inequality, financial instability, resource consumption and environmental pressures\nin the affluent countries a persistent, deep and widespread reduction of consumption and production would reduce economic growth as measured by\nGDP\nIn response\ndrivers of affluence\nDegrowth\ndefined\nas “an equitable downscaling of throughput\nwith a concomitant securing of wellbeing\naimed at a subsequent downscaled steady-state economic system that is socially just and in balance with ecological limits.\ndoes not aim for a reduction of GDP per se, but rather accepts it as a likely outcome of the necessary changes78\ntransition initiatives\nprefigur\nthe transformation as well as cultural and value changes\na necessary precondition for wider radical change\nIt is important to recognise the pivotal role of\nmovements in this process, which can bring forward social tipping points through complex\nreinforcing feedbacks\nand create windows of opportunity from crises\nLong-term and concurrent human and planetary wellbeing will not be achieved\nif affluent overconsumption continues, spurred by economic systems that exploit nature\ninternational trade mechanisms allow the rich world to displace its impact to the global poor. Not only can a sufficient decoupling of environmental and detrimental social impacts from economic growth not be achieved by technological innovation alone, but also the profit-driven mechanism of prevailing economic systems prevents the necessary reduction of impacts and resource utilisation per se.\nthe digital revolution—and more broadly the Fourth Industrial Revolution (FIR) with converging, step-change innovations in digital technology, artificial intelligence, Internet of Things, 3D-printing, biotechnology and nanotechnology—has been touted as an enabler of absolute decoupling\nWhile digitalisation is already a key driving force in societal transformation, it has so far led to more consumption and inequality and remained coupled with the indirect use of energy and materials, therefore sustaining resource-intensive and greenhouse-gas growth patterns\nWhile the digital revolution undoubtedly increases labour productivity\nit remains to be seen whether the same is true for resource productivity\nEven if the FIR were to achieve absolute decoupling, this would come at a potentially high risk for privacy, liberty, data sovereignty, civic rights, security, equality and democracy\nWhat is needed are convincing and viable solutions at the systems level\nA wide debate in society\nis necessary\nThe necessary alternative futures need to be\nenvisioned and shared", "role": "user" }, { "content": "affluence\nincreased resource use\nemissions far more rapidly\nreduced\ntech\nmost environmental impacts\nonly be effective\nfar-reaching lifestyle changes\nexpansion\nimperative for growth\ninhibit\nwarn\ndegradation\nlife-sustaining functions\nfailed\nexistential threats\naffluent\nstrongest determinant\nstrongest accelerator\nHolistic\nlife-cycle\nonly\ncount\ndirect\nindirect\nglobal\ncomplete supply chains\nfailing\noutsourcing\nundermine global environmental abatement efforts\nCO2\nmaterials\npollution\nbiod\nnitrogen\nwater\nenergy\nMany\nstudies\nyield\nclear ev\nstrongest determinant\ndwarfing other\ns\nconsistently positive driver\nabsolute\nincrease\nhigher consumption\nAbsolute\nalone\ninverted-U-type Kuznets relationship\nnot occur\nexacerbate\noutrun any beneficial effects\ntech\nentire world\nindividual countries\noverwhelming ev\nglobally\ndiminished\ncancelled out\ngains\nmiddle- and high-income brackets\nfurther exacerbate\nincrease with income\nlarger than one\nconsumption\ntech\nface an uphill battle\ncounteract\nfurther deterioration\nirreversible damage\nglobal and rapid decoupling\nhighly unlikely\nrapid\nenough\nglobal scale\nrenewable\nelectrification\ncarbon-captur\nservices\nrequire\nmetals\nconcrete\nland\nenergy demand\nextraction\ntech\nlimit\ns\nrebound\ns aggravate\ndownscaling of\nproduction and consumption\nconsumption\nneed\nreducing\nnot just greening it\ninequality\ninstability\nresource consumption\nenvironmental pressures\nreduce economic growth\nGDP\ndrivers\nDegrowth\nsteady-state economic system\nsocially just\nbalance\ntransition initiatives\nprefigur\ntransformation\ncultural\nvalue changes\nprecondition\nmovements\nsocial tipping points\ncomplex\nreinforcing feedbacks\nwindows of opportunity\ncrises\nnot be achieved\nexploit nature\ngrowth not be achieved\nprevents\nnecessary reduction of impacts and resource utilisation\ndigital rev\ntouted\nenabler of absolute decoupling\ntransformation\nmore consumption and inequality\nremained coupled\nsustaining resource-intensive and greenhouse-gas growth patterns\nlabour\nresource\nneeded\nconvincing and viable solutions at the systems level\ndebate in society\nalternative futures\nenvisioned\nshared", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Growth is unsustainable and innovation can’t solve---degrowth spurred by crisis is the only chance to avoid extinction\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "worldwide growth in affluence has\nincreased resource use and\nemissions far more rapidly than\nreduced through\ntech\naffluent citizens\nare responsible for most environmental impacts\nAny transition towards sustainability can only be effective if far-reaching lifestyle changes complement technological advancements\nexisting societies, economies and cultures incite\nexpansion and the structural imperative for growth\ninhibits necessary societal change\nscientists’ warnings confirm alarming trends of environmental degradation\nleading to profound changes in essential life-sustaining functions\nhumanity has failed to find lasting solutions to these changes that pose existential threats\nconsumption of affluent households worldwide is by far the strongest determinant and\nstrongest accelerator of increases of global environmental and social impacts\nHolistic studies of the environmental or social consequences of consumption usually involve the use of life-cycle assessment or input-output analysis that do not only account for direct\non-site, within-territory\nbut importantly also include indirect impacts occurring along global and complete supply chains8\nuse of such methods is important, because failing to detect the outsourcing of indirect impacts\nhas the potential to seriously undermine global environmental abatement efforts\nThe implications of consumption on scarce energy resources\nwas confirmed by many consumption-based analyses on indicators as varied as CO2\nraw materials\npollution, biodiversity, nitrogen\nscarce water use or energy\nMany of these studies employed multiple regression\nyielding clear evidence\nthat consumption is by far the strongest determinant of global impacts, dwarfing other socio-economic–demographic factors such as age, household size, qualification or dwelling structure\nWhilst the strength of the proportionality between consumption and impact decreases slightly towards higher incomes (measured by so-called elasticities), consumption was found to be a consistently positive driver\nthe impact intensity of consumption decreases, but absolute impacts increase towards higher consumption. Absolute decoupling, let alone an inverted-U-type Kuznets relationship, does not occur\nFor some social indicators, causal associations between consumption and impact are weak or non-existent. For example, withdrawing consumption from countries with unequal wages, child labour, corruption or severe occupational hazards may not influence those conditions, and might even exacerbate social problems.\nconsumption\ngrowth have mostly outrun any beneficial effects of changes in technology over the past few decades\nresults hold for the entire world\nas well as for numerous individual countries\nThe overwhelming evidence\nis that globally, burgeoning consumption has diminished or cancelled out\ngains\nFurthermore, low-income groups are rapidly occupying middle- and high-income brackets around the world. This can\nfurther exacerbate the impacts of mobility-related consumption, which has been shown to disproportionately increase with income\nthe elasticity is larger than one\nThis means that if consumption is not addressed\ntechnological solutions will face an uphill battle\nthey not only have to bring about reductions of impact but will also need to counteract the effects of growing consumption and affluence\nTo avoid further deterioration and irreversible damage\nthere will need to be a global and rapid decoupling\nit is highly unlikely that such\nwill occur\nrapidly enough at global scale and for other environmental impacts\nbecause renewable energy, electrification\ncarbon-capturing technologies and even services all have resource requirements, mostly in the form of metals, concrete and land31\nRising energy demand and costs of resource extraction\ntechnical limitations and rebound effects aggravate the problem28\npolicy makers have to acknowledge the fact that addressing environmental breakdown may require a\ndownscaling of\nproduction and consumption\nSince the level of consumption determines total impacts, affluence needs to be addressed by reducing consumption, not just greening it\nprevailing capitalist, growth-driven economic systems have not only increased affluence\nbut have led to enormous increases in inequality, financial instability, resource consumption and environmental pressures\nin the affluent countries a persistent, deep and widespread reduction of consumption and production would reduce economic growth as measured by\nGDP\nIn response\ndrivers of affluence\nDegrowth\ndefined\nas “an equitable downscaling of throughput\nwith a concomitant securing of wellbeing\naimed at a subsequent downscaled steady-state economic system that is socially just and in balance with ecological limits.\ndoes not aim for a reduction of GDP per se, but rather accepts it as a likely outcome of the necessary changes78\ntransition initiatives\nprefigur\nthe transformation as well as cultural and value changes\na necessary precondition for wider radical change\nIt is important to recognise the pivotal role of\nmovements in this process, which can bring forward social tipping points through complex\nreinforcing feedbacks\nand create windows of opportunity from crises\nLong-term and concurrent human and planetary wellbeing will not be achieved\nif affluent overconsumption continues, spurred by economic systems that exploit nature\ninternational trade mechanisms allow the rich world to displace its impact to the global poor. Not only can a sufficient decoupling of environmental and detrimental social impacts from economic growth not be achieved by technological innovation alone, but also the profit-driven mechanism of prevailing economic systems prevents the necessary reduction of impacts and resource utilisation per se.\nthe digital revolution—and more broadly the Fourth Industrial Revolution (FIR) with converging, step-change innovations in digital technology, artificial intelligence, Internet of Things, 3D-printing, biotechnology and nanotechnology—has been touted as an enabler of absolute decoupling\nWhile digitalisation is already a key driving force in societal transformation, it has so far led to more consumption and inequality and remained coupled with the indirect use of energy and materials, therefore sustaining resource-intensive and greenhouse-gas growth patterns\nWhile the digital revolution undoubtedly increases labour productivity\nit remains to be seen whether the same is true for resource productivity\nEven if the FIR were to achieve absolute decoupling, this would come at a potentially high risk for privacy, liberty, data sovereignty, civic rights, security, equality and democracy\nWhat is needed are convincing and viable solutions at the systems level\nA wide debate in society\nis necessary\nThe necessary alternative futures need to be\nenvisioned and shared", "role": "user" }, { "content": "growth\nincreased resource use and\nemissions\nmore rapidly than\nreduced through\ntech\ncultures\ninhibit\nnecessary\nchange\nscientists’ warn\nof\ndegradation\nto\nlife-sustaining functions\nfailed\nsolutions\npose existential threats\nHolistic studies\ninvolve\nlife-cycle assessment\nnot only\ncount\ndirect\nbut\nalso\nindirect impacts\nalong global\nsupply chains\nbecause\noutsourcing\nundermine\nabatement\non\nCO2\nmaterials\npollution, biod\nnitrogen\nwater\nor energy\nMany\nstudies\nyield\nclear ev\nthat consumption is\nthe strongest determinant\ndwarfing other\ns\nAbsolute decoupling, let alone\nKuznets\ndoes not occur\ngrowth have\noutrun\ntech\nfor the\nworld\nas well as\nindividual countries\nThe overwhelming ev\nis\ntech\nface an uphill battle\nTo avoid\nirreversible damage\nwill need\nglobal\nrapid decoupling\nhighly unlikely\nrapid\nenough at\nscale\nrenewable energy\ncarbon-captur\nand\nservices\nrequire\nmetals, concrete and land\nextraction\ntech\nlimit\ns and rebound\ns aggravate the problem\nneed\nto be addressed by reducing consumption, not just greening\nnecessary\nfor wider\nchange\nmovements\ncan bring\nsocial tipping points through\nreinforcing feedbacks\nand create windows of opportunity from crises\nthe digital rev\nWhile\ndriving\ntransformation\nremained coupled\nsustaining\nintensive\npatterns\nneeded are\nsolutions at the systems level\nA\ndebate in society", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: That does NOT make the practice ‘prohibited.’", "role": "system" }, { "content": "Or to take a more procedural example, judges have used rules of thumb to simplify the discretionary but tedious analysis of attorney fee awards. 210 For example, it is common for judges to critique the practice of \"block billing,\" or not identifying the discrete amount of time used for each attorney task. Some judges have relied on district court precedent to assert that block-billed time should be excluded from fee award calculations altogether, regardless of the relevance of the tasks involved. 211 But when those citation chains are traced back, the prior decisions had instead acknowledged that block billing \"is not a prohibited practice,\" just a disfavored one because it makes the court's effort to review the reasonableness of requested fees more difficult. 212It is thus within the judge's discretion to decide how to evaluate block-billed time. 213When that nuance is dropped in later cases, [*1661] however, the result is a rule of thumb that borders on punishment for bad timekeeping.", "role": "user" }, { "content": "judges have used rules of thumb\nit is common for judges to critique the practice of \"block billing,\"\nBut when those\nchains are traced back, the\ndecisions\nacknowledged that block billing \"is not a prohibited practice,\" just a disfavored one because it makes the court\nreview the reasonableness", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: That does NOT make the practice ‘prohibited.’", "role": "system" }, { "content": "judges have used rules of thumb\nit is common for judges to critique the practice of \"block billing,\"\nBut when those\nchains are traced back, the\ndecisions\nacknowledged that block billing \"is not a prohibited practice,\" just a disfavored one because it makes the court\nreview the reasonableness", "role": "user" }, { "content": "judge\nrules of thumb\ncritique\npractice\ntraced back\nacknowledged\nnot a prohibited practice\ndisfavored\nmakes the court\nreview the reasonableness", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: That does NOT make the practice ‘prohibited.’\n\nHighlight Ratio: 0.7", "role": "system" }, { "content": "judges have used rules of thumb\nit is common for judges to critique the practice of \"block billing,\"\nBut when those\nchains are traced back, the\ndecisions\nacknowledged that block billing \"is not a prohibited practice,\" just a disfavored one because it makes the court\nreview the reasonableness", "role": "user" }, { "content": "judge\nrules of thumb\ncritique the practice\nBut when\ntraced back, the\ndecisions\nacknowledged that\nis not a prohibited practice,\" just a disfavored one because it makes the court\nreview\nreasonableness", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: *The plan’s contingent on the effects in each individual case. That’s distinct.", "role": "system" }, { "content": "In reply, the respondent government argued that the “administrative practices” exception developed by the Commission in relation to interstate cases could not in any circumstances apply to an individual application under Article 25. They submitted that it applied only where an application raised a general issue, distinct from its effects on individuals, and that an individual was incompetent to raise such general issues under Article 25.52 While denying generally that any violation of Article 3 had occurred, the respondent government maintained that, if violations did occur, adequate and effective remedies existed within domestic United Kingdom law which had not been exhausted by the individual applicants.", "role": "user" }, { "content": "the\npractices\nexception\ncould not in any circumstances apply to an individual application\nonly where an application raised a general issue, distinct from its effects on individuals", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: *The plan’s contingent on the effects in each individual case. That’s distinct.", "role": "system" }, { "content": "the\npractices\nexception\ncould not in any circumstances apply to an individual application\nonly where an application raised a general issue, distinct from its effects on individuals", "role": "user" }, { "content": "practices\nnot\nany circumstances\nindividual application\ngeneral issue\ndistinct from its effects\nindividuals", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: *The plan’s contingent on the effects in each individual case. That’s distinct.\n\nHighlight Ratio: 0.8", "role": "system" }, { "content": "the\npractices\nexception\ncould not in any circumstances apply to an individual application\nonly where an application raised a general issue, distinct from its effects on individuals", "role": "user" }, { "content": "the\npractices\nexception\ncould not in any circumstances apply to an individual application\nonly\na general issue, distinct from\neffects on individuals", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: *The plan bans ‘doing x in a way that causes effect y’---that means the object of the prohibition is effect y, NOT practice x.", "role": "system" }, { "content": "Normative and economic premises provide policymakers and adjudicators with valuable analytical shortcuts, insofar as they relieve them of the need to establish the merits of the entailed generalizations every single time they interpret and apply the competition rules. This is important in view of the far-reaching implications that the employed premises may have for competition enforcement.\nFirstly, normative assertions and economic propositions are what gives shape to the otherwise vague letter of the antitrust and merger provisions. Arguably, those provisions do not immediately reveal what is prohibited and are in need of elaboration to become operational. In this process, varying perceptions about the goals of the discipline may completely shift the focus of the analysis. 45 For example, if competition law is to be enforced with a view to protecting small- and medium-sized enterprises or employment-as opposed or in addition to, say, promoting consumer welfare-then different effects in the market may become relevant. 46 On the other hand, economic premises about the procompetitive or anticompetitive nature of the conduct at hand typically inform the choice between the application of a 'rule' or a 'standard'. 47 The prohibition, for instance, of cartels as 'by object' violations of antitrust law rests on the economic premise that conduct of this kind lacks any efficiency justification and thus a rule of prima facie illegality is not liable to chill procompetitive behaviour. 48 Conversely, the treatment of quantity rebates as prima facie lawful is grounded in the idea that this type of discount reflects the cost savings achieved by the undertaking in question. 49 In the same vein, the 'by effect' analysis of exclusive dealing under Article 101(1) TFEU is explained by the economic insight that behaviour of this kind may entail efficiencies. 50 Accordingly, normative and economic premises are instrumental in the construction of competition law.\nIt is worth noting at this point that in the EU the 'by object' test has been occasionally portrayed as a presumption of actual or likely anticompetitive effects. Arguably, the language employed by the EU Courts is partly to blame for this. 51 In Cartes Bancaires, for instance, the Court of Justice explained that 'certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects ( ... ), that it may be considered redundant ( ... ) to prove that they have actual effects on the market', since 'experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers'. 52 This wording though is confusing, insofar as it may create the misimpression that a finding of 'by object' violation rests on a presumption-in the technical sense of the word-of the existence of actual or likely anticompetitive effects in the circumstances at hand. Considering that presumptions shift the burden of proof, in this case it should be open to undertakings to challenge such a finding by showing that their cartel agreement, for instance, was never implemented or that the presumed negative effects are unlikely to occur. Nevertheless, the EU Courts' jurisprudence demonstrates that such arguments may not reverse a finding of 'by object' liability. 53 Consequently, to speak of a presumption of actual or likely anticompetitive effects is incorrect.\nSecondly, premises also play a fundamental role in the design of administrative priorities-that is, the identification of cases on which the authority will choose to expend its limited resources to maximize the return on taxpayers' money. For instance, if the goal is to promote consumer welfare, then it of course makes sense to prioritize investigations into practices which may have a bigger impact on it. Economic premises are critical in this screening exercise, since they can guide administrative agencies in detecting the most but also least 'problematic' types of behaviour in view of the pursued objective.\nFor example, the prioritization of cartel enforcement worldwide rests on the economic insight that cartel conduct is among the most harmful for competition and consumers. Conversely, the development of 'safe harbours' setting out the circumstances where an authority is unlikely to intervene is grounded in the idea that competition is not liable to be impaired in the absence of a degree of market power. The Commission Guidelines on agreements of minor importance, for instance, explain that arrangements entered into between parties whose market shares do not exceed certain thresholds will be considered not to appreciably restrict competition in the meaning of Article 101(1) TFEU. 54 Similar pronouncements may be located in the Commission Guidelines on horizontal cooperation agreements or in the Commission Guidelines on horizontal and nonhorizontal mergers. 55 While these 'safe harbours' are often presented as 'presumptions of lawfulness', strictly speaking they are simply illustrations of the authority's policy and understanding of the law. 56\nLast but not least, premises have a third important function in competition enforcement-they form part of the backdrop against which the standard of proof inquiry is conducted. The reason for this is that the process of determining whether the available evidence is sufficient to surpass the requisite level of conviction or probability for a decision to be lawfully adopted is informed-among others-by normality considerations, which allow us to make sense of the evidence and to 'connect the dots'. Generally, our perception of 'usual' and 'unusual' is shaped by past experience and common sense. 57 In competition enforcement though, economic premises may also determine what is 'normal' and what is not. 58 For instance, because cartels are deemed to harm competition, claims and evidence of plausible explanations and efficiencies will be evaluated against this default idea. Likewise, the insight that 'the effects of a conglomerate-type merger are generally considered to be neutral, or even beneficial, for competition' led the General Court to emphasize in Tetra\nLaval that 'the proof of anticompetitive conglomerate effects of such a merger calls for a precise examination, supported by convincing evidence, of the circumstances which allegedly produce those effects'. 59 Therefore, premises inform not only the construction of the law and the design of policy but also fact-finding, insofar as they provide 'rules of thumb' and baselines for drawing inferences from the evidence. 60\nB. The Construction and Deconstruction of Normative and Economic Premises\nPremises are not set in stone though. Because they embody contemporary norms and values as well as current knowledge, they may-and do-evolve over time. Societal and political shifts and advances in economics may lead to the emergence of new premises or the critical revisiting of old ones. The construction and deconstruction of normative and economic premises in competition enforcement occur in an incremental and cumulative manner predominantly outside but also within the legal system.\nOutside the legal system, scholarly works exposing the thinking underlying competition enforcement and challenging its theoretical and empirical foundations, as well as its consistency, play a pivotal role in this regard. This is hardly surprising-by promoting evidence-based dialogue and allowing for the fermentation of ideas, academic debates may result in the elimination of weak propositions, the emergence of consensus positions, and the creation of new knowledge. This process though is a constant work in progress, which partly explains why many of the disputes concerning competition enforcement resurface now and again. The recently reignited conversation about the goals of the discipline is a good example of this-after the espousal by many of efficiency and consumer welfare as the main aims of competition law, the issue has again been brought into the spotlight by commentators advocating for the pursuit of broader social and political objectives. 61 Economic premises are not immune to challenges either. As the currently ongoing discussion around the low levels of vertical merger enforcement illustrates, even well-established propositions-such as the idea that nonhorizontal concentrations generally benefit competition and generate efficiencies-may be questioned and potentially overturned. 62 Finally, academic works exposing inconsistencies in the legal treatment of various categories of conduct may also cast doubt on the convincingness of the premises underlying the applicable tests. 63\nWithin the legal system, the construction and deconstruction of premises naturally occur during the development of policy and in the context of specific cases. Indeed, on several occasions the emergence of new knowledge or changes in the prevailing circumstances have prompted competition authorities to reflect on-and update, where necessary-the premises driving their enforcement activities. In the EU, for instance, the heavy criticisms against the Commission's early formalistic approach to the legal treatment of various practices led the authority to rethink its policy in different areas-from vertical agreements to horizontal arrangements to mergers and unilateral conduct. The replacement of old premises with new ones culminated in the publication of several soft law documents, which were seen as signalling a 'more economic' approach to EU competition enforcement. 64 More recently, the challenges of the digital economy have impelled several authorities to commission expert reports and to launch task forces or strategies with a view to ascertaining what normative and economic premises should drive antitrust and merger policy in that context. 65\nBy contrast, courts are naturally more cautious against regular or radical changes in the law as a result of contemporary developments due to the need to preserve legal certainty and stability. 66 Nevertheless, the normative and economic propositions underpinning competition enforcement may be exposed or challenged in the context of judicial proceedings, too. Leegin is probably among the best examples of a drastic overhaul of the law in judicial acknowledgment of an evolution in current thinking. Noting that 'economics literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance', the US Supreme Court overturned Dr Miles and dismissed the per se illegality test in favour of a rule of reason analysis. 67 In the EU, the Courts have frequently spelt out the premises behind their interpretation of the law. While many have survived the passage of time relatively unscathed, for example, the idea that pricing below average variable costs is generally irrational for an undertaking or the insight that certain restraints are necessary in selective distribution or franchising, 68 others have been tested-for instance, the idea that exclusivity rebates offered by a dominant firm are inherently harmful for competition and consumers. 69 Over the years, such challenges have provided EU judges with the opportunity to incrementally clarify and elaborate on the main ideas driving the enforcement of the antitrust and merger rules. 70\nC. Economic Premises and Evidence Rules\nMost, if not all, premises, in particular economic ones, have at least some empirical grounding, and their 'truth' or 'validity' may thus be contested, as just noted. To the extent that they underpin the construction of the competition provisions and their application to specific practices and may be challenged in the context of judicial proceedings, it is necessary to briefly consider whether they are subject to the evidence rules. Are economic propositions to be established to the standard of proof before being endorsed by the court? If there is disagreement between the parties about the 'correct' premise, say, for instance, regarding the competitive effects of exclusive dealing by dominant firms or the relationship between market structure and innovation, is this to be resolved in accordance with the rules on the burden of proof? And are judges exclusively dependent on parties to produce the relevant information, or can they engage in independent research?\nThese queries go to the heart of a rather old, yet highly important problem-that of the integration of social science in law. 71 To the extent that the construction and the application of the legal rules hinge on 'knowledge' derived from social science, including economics, is this to be treated as 'fact' or as 'law' or perhaps as something else? Scholars have approached this question in different, albeit not fundamentally conflicting, ways. On the one hand, it has been suggested that so-called legislative facts-that is, facts that 'inform ( ... ) a court's legislative judgment on questions of law and policy'- must be distinguished from adjudicative facts, that is, facts about 'what the parties did, what the circumstances were, what the background conditions were', and that the evidence rules apply only to the latter. 72 On the other hand, it has been argued that social science may be treated both as 'law' and as a 'fact depending on its use: it is akin to 'law' when it provides the basis for law-making or is employed to establish background knowledge and general methodology, while it is akin to 'fact', when it is applied to case-specific issues or to produce case-specific research findings. 73\nWith these remarks in mind, when economic premises are employed for the purpose of determining the optimal legal test-that is, whether a conduct should be subject to a rule or a standard (in EU terminology, the 'by object' or the 'by effect' test)-they arguably escape the application of the evidence rules. In the EU this conclusion is further reinforced by the exclusive competence of the EU Courts to provide authoritative guidance on the meaning of EU law. 74 Accordingly, conduct-specific economic premises, that is, generalized propositions pertaining to the economics of different practices-say, tying or price discrimination or refusal to supply-need not be established to the standard of proof to be accepted by EU judges as the motivation behind their choice of legal test. By contrast, where economic premises are employed as 'background knowledge' or even 'rules of thumb' for the purpose of making sense of the evidence, the answer is not as straightforward. As noted earlier, in [TABLE 1 OMITTED] this context economic premises may enable judges to draw inferences from the available pieces of information. Inevitably though, the strength of the inference is partly correlated with the strength or relevance of the economic premise. If either is prima facie challenged, then in principle the party with the burden of persuasion should explain why the inference should still be drawn.\nV. PRESUMPTIONS AS ANALYTICAL SHORTCUTS IN EU COMPETITION ENFORCEMENT\nA. A Brief Account of the Existing Presumptions\nSomewhat ironically, considering the popularity of the term in competition scholarship, there are not many presumptions in the technical sense in EU competition law. Indeed, the examination of the EU Courts' jurisprudence reveals the existence of only five (Table 1). 75 These effectively correspond to different elements of the antitrust rules that the Commission must prove to adopt a prohibition decision.\nThe first presumption pertains to the notion of 'undertaking' against which Articles 101 and 102 TFEU are addressed. 76 As explained in H?fner and Elser, the concept comprises 'any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed'. 77 Further elaborating on this in Hydrotherm, the Court stressed that the term 'undertaking' must be understood as designating an economic-rather than a legal-unit. 78 In this regard, the existence of distinct legal entities is immaterial; what matters is-as elucidated in Shell-that there is a 'unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement'. 79 In the case of parent companies and subsidiaries in particular, such an economic unit will exist where 'the subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company'; according to settled jurisprudence, in these circumstances the anticompetitive conduct of the subsidiary may be imputed to the parent company. 80 In Akzo the Court of Justice confirmed that 'where a parent company has a 100% shareholding in a subsidiary ( ... ) there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary'. 81 Ever since its first affirmation, the Akzo presumption has been reiterated multiple times and is now solidly rooted in the Courts' jurisprudence.\nIn any event, to find a violation of Article 101(1) TFEU in particular, the Commission must also demonstrate that the undertaking participated in a collusive arrangement-be it a concerted practice or an agreement. 82 Showing the existence of a concerted practice in principle entails proving three elements: concertation, subsequent market conduct, and causal connection between the two. In H?ls and in Commission v Anic Partecipazioni, however, the Court clarified that 'subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market'. 83 Ever since, the Anic presumption-as is often called-has become firmly embedded in the Courts' case law. 84 While it was initially developed in connection with concerted practices-that is, collusive arrangements falling short of an agreement-this presumption soon provided the basis for the emergence of another one, that of participation in a cartel upon evidence that the undertaking has attended a meeting with an anticompetitive object. Indeed, as confirmed for the first time in Aalborg Portland, 'it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anticompetitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in a cartel', the presumption being that its will concurs with that of the other attendants. 85\nAt any rate, to adopt a prohibition decision, the Commission must also establish the duration of the antitrust violation and of the undertaking's involvement in it. This can be a daunting task-especially in complex infringements extending over longer periods of time. In recognition of this challenge, the EU Courts have eased the authority's burden of proof in two ways. Firstly, they have developed the doctrine of single, continuous or repeated infringement, according to which there is one infringement-rather than several-where a series of acts form part of an unlawful 'overall plan'. 86 The latter may be deduced 'from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings, and lastly, of the geographical scope of those practices'. 87 Secondly-and most importantly, for the purposes of this work, the EU Courts have adopted a presumption of continuity, whose foundations originate in Dunlop. According to the latter, 'if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates'. 88\nFinally, the case law arguably points at the existence of one more presumption-that is, if a conduct lacks any plausible explanation, it is intrinsically capable of harming competition. 89 Premises about the economics of the practice at hand and any 'objective justifications' raised by the parties will be crucial to ascertaining whether, on the facts, there is no legitimate ground for it. 90 In this case, the anticompetitive potential of the practice is automatically inferred and needs not be proved ad hoc, unless the undertaking concerned produces evidence to the contrary, and a 'by object' violation will be considered established, provided that the other elements of Article 101 TFEU or Article 102 TFEU have been sufficiently demonstrated. In the context of Article 101 TFEU, the Court of Justice explained in T-Mobile that 'the distinction between \"infringements by object\" and \"infringements by effect\" arises from the fact that certain forms of collusion between undertakings can be regarded, by their very nature, as being injurious to the proper functioning of normal competition'. 91 As the Court elaborated, 'in order for a concerted practice to be regarded as having an anticompetitive object, it is sufficient that it has the potential to have a negative impact on competition'; in this case, there is no need for the Commission to consider its effects. 92 Nevertheless, Football Association Premier League clarifies that undertakings may 'put forward any circumstance within the economic and legal context' of the arrangement in question, which would justify the finding that it is 'not liable to impair competition'. 93 A similar presumption is visible in the context of Article 102 TFEU, as well. Indeed, the judgment of the Court of Justice in Intel implies that practices, which lack a plausible explanation, are presumed to be capable of harming competition, unless the dominant undertaking challenges this conclusion 'on the basis of supporting evidence'. 94", "role": "user" }, { "content": "Normative\npremises provide policymakers and adjudicators with valuable analytical shortcuts\ninsofar as they relieve them of the need to establish the merits of the entailed generalizations every single time\nnormative assertions\nare what gives shape to the otherwise vague letter of the antitrust\nprovisions. Arguably, those provisions do not immediately reveal what is prohibited and are in need of elaboration to become operational\nThe prohibition, for instance, of cartels as 'by object' violations of antitrust law rests on the economic premise that conduct of this kind lacks any\njustification and thus a rule of prima facie illegality is not liable to chill procompetitive behaviour\nthe 'by effect' analysis of exclusive dealing\nis explained by the economic insight that behaviour of this kind may entail efficiencies\nthe 'by object' test has been occasionally portrayed as a presumption of\nlikely anticompetitive effects\nthe language employed by the EU Courts is partly to blame for this\nThis\ninsofar as it may create the misimpression that a finding of 'by object' violation rests on a presumption\nof the existence of\nanticompetitive effects\nNevertheless\nto speak of a presumption of\neffects is incorrect\neconomic premises are employed for the purpose of determining the optimal legal test-that is, whether a conduct should be subject to a rule or a standard\nthe 'by object' or the 'by effect' test\nconduct\nintrinsically capable of harming competition\nIn this case, the anticompetitive potential of the practice\nneeds not be proved ad hoc\nand a 'by object' violation will be considered established\n'the distinction between \"infringements by object\" and \"infringements by effect\" arises from the fact that certain forms of collusion\ncan be regarded, by their very nature, as being injurious to\nproper\ncompetition'\nAs the Court elaborated, 'in order for a\npractice to be regarded as\nan anticompetitive object, it is sufficient that it has the potential to have a negative impact\nthere is no need\nto consider\neffects", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: *The plan bans ‘doing x in a way that causes effect y’---that means the object of the prohibition is effect y, NOT practice x.", "role": "system" }, { "content": "Normative\npremises provide policymakers and adjudicators with valuable analytical shortcuts\ninsofar as they relieve them of the need to establish the merits of the entailed generalizations every single time\nnormative assertions\nare what gives shape to the otherwise vague letter of the antitrust\nprovisions. Arguably, those provisions do not immediately reveal what is prohibited and are in need of elaboration to become operational\nThe prohibition, for instance, of cartels as 'by object' violations of antitrust law rests on the economic premise that conduct of this kind lacks any\njustification and thus a rule of prima facie illegality is not liable to chill procompetitive behaviour\nthe 'by effect' analysis of exclusive dealing\nis explained by the economic insight that behaviour of this kind may entail efficiencies\nthe 'by object' test has been occasionally portrayed as a presumption of\nlikely anticompetitive effects\nthe language employed by the EU Courts is partly to blame for this\nThis\ninsofar as it may create the misimpression that a finding of 'by object' violation rests on a presumption\nof the existence of\nanticompetitive effects\nNevertheless\nto speak of a presumption of\neffects is incorrect\neconomic premises are employed for the purpose of determining the optimal legal test-that is, whether a conduct should be subject to a rule or a standard\nthe 'by object' or the 'by effect' test\nconduct\nintrinsically capable of harming competition\nIn this case, the anticompetitive potential of the practice\nneeds not be proved ad hoc\nand a 'by object' violation will be considered established\n'the distinction between \"infringements by object\" and \"infringements by effect\" arises from the fact that certain forms of collusion\ncan be regarded, by their very nature, as being injurious to\nproper\ncompetition'\nAs the Court elaborated, 'in order for a\npractice to be regarded as\nan anticompetitive object, it is sufficient that it has the potential to have a negative impact\nthere is no need\nto consider\neffects", "role": "user" }, { "content": "Normative\nshortcuts\ngeneralizations every single time\ngive\nshape\nvague letter\nnot immediately reveal what is prohibited\nelaboration\noperational\ncartels\n'by object'\nany\njustification\nrule\nprima facie illegality\nprocompetitive\n'by effect'\nmay\nefficiencies\n'by object'\nportrayed\npresumption\neffects\nmisimpression\n'by object'\npresumption\neffects\npresumption\neffects\nincorrect\ndetermin\nconduct\nrule\nstandard\n'by object'\n'by effect'\nintrinsically\npotential\npractice\nneeds not be proved ad hoc\n'by object' violation\nobject\neffect\nforms of collusion\nvery nature\npractice\nanticompetitive object\npotential\nno need\neffects", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: *The plan bans ‘doing x in a way that causes effect y’---that means the object of the prohibition is effect y, NOT practice x.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Normative\npremises provide policymakers and adjudicators with valuable analytical shortcuts\ninsofar as they relieve them of the need to establish the merits of the entailed generalizations every single time\nnormative assertions\nare what gives shape to the otherwise vague letter of the antitrust\nprovisions. Arguably, those provisions do not immediately reveal what is prohibited and are in need of elaboration to become operational\nThe prohibition, for instance, of cartels as 'by object' violations of antitrust law rests on the economic premise that conduct of this kind lacks any\njustification and thus a rule of prima facie illegality is not liable to chill procompetitive behaviour\nthe 'by effect' analysis of exclusive dealing\nis explained by the economic insight that behaviour of this kind may entail efficiencies\nthe 'by object' test has been occasionally portrayed as a presumption of\nlikely anticompetitive effects\nthe language employed by the EU Courts is partly to blame for this\nThis\ninsofar as it may create the misimpression that a finding of 'by object' violation rests on a presumption\nof the existence of\nanticompetitive effects\nNevertheless\nto speak of a presumption of\neffects is incorrect\neconomic premises are employed for the purpose of determining the optimal legal test-that is, whether a conduct should be subject to a rule or a standard\nthe 'by object' or the 'by effect' test\nconduct\nintrinsically capable of harming competition\nIn this case, the anticompetitive potential of the practice\nneeds not be proved ad hoc\nand a 'by object' violation will be considered established\n'the distinction between \"infringements by object\" and \"infringements by effect\" arises from the fact that certain forms of collusion\ncan be regarded, by their very nature, as being injurious to\nproper\ncompetition'\nAs the Court elaborated, 'in order for a\npractice to be regarded as\nan anticompetitive object, it is sufficient that it has the potential to have a negative impact\nthere is no need\nto consider\neffects", "role": "user" }, { "content": "vague\nprovisions do not\nreveal what is prohibited\nprohibition\nof cartels as 'by object' violations\nrests on the\npremise that conduct of this kind lacks any\njustification\n'by effect' analysis\nis explained by\ninsight that behaviour\nmay entail efficiencies\nthe language\nmay create the misimpression that\nfinding\n'by object' violation rests on\npresumption\nof\neffects\nNevertheless\nis incorrect\neconomic premises\ndetermin\nthe optimal\ntest\nthat is, whether\nconduct should be subject to a rule or a standard\n'by object' or\n'by effect'\nconduct\nintrinsically capable of harming competition\nthis\npotential of the practice\nneeds not be proved ad hoc\nand a 'by object' violation will be\nestablished\n'the distinction between \"infringements by object\" and\nby effect\" arises from the fact that certain\ncollusion\ncan be regarded, by their\nnature, as being injurious\nthere is no need\nto consider\neffects", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Renewables EROI is too low---they can’t propel growth as fast as fossil fuels.", "role": "system" }, { "content": "One could argue that green growth would only run on renewable energies and so that the EROI of fossil fuels is irrelevant. Even though we will shortly argue that it is not, let us assume for a moment that a complete replacement of fossil fuels by renewables is possible materially (finding enough minerals and land to build the energy infrastructure) and socioeconomically (having renewable energies finding social acceptance and investment resources to completely replace fossil ones). Even then, according to Murphy and Hall (2011), the EROI of renewable energies (below 20:1) is still significantly lower compared to the high EROIs during the early days of fossil fuels (Hall et al., 2014). Capellán-Pérez et al. (2018) simulate what would happen to average EROI by 2050 should renewable energy sources increase from 15% to 30% (1st scenario) and from 15% to 50% (2nd scenario). In the first scenario, average EROI drops from currently 6:1 to 5:1; and down to 3:1 in the second scenario. If energy expenditures play an important role in the dynamics of economic growth, this means that renewable energies are fundamentally unable to propel an economy as fast as fossil fuels.", "role": "user" }, { "content": "One could argue that green growth would only run on renewable energies\nlet us assume for a moment that a complete replacement of fossil fuels by renewables is possible materially (finding enough minerals and land to build the energy infrastructure) and socioeconomically\nEven then\nthe EROI of renewable energies\nis still significantly lower compared to the high EROIs during the early days of fossil fuels\nCapellán-Pérez et al.\nsimulate what would happen to average EROI by 2050 should renewable energy sources increase from 15% to 30% (1st scenario) and from 15% to 50% (2nd scenario). In the first scenario, average EROI drops from currently 6:1 to 5:1; and down to 3:1 in the second scenario. If energy expenditures play an important role in the dynamics of economic growth, this means that renewable energies are fundamentally unable to propel an economy as fast as fossil fuels", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Renewables EROI is too low---they can’t propel growth as fast as fossil fuels.", "role": "system" }, { "content": "One could argue that green growth would only run on renewable energies\nlet us assume for a moment that a complete replacement of fossil fuels by renewables is possible materially (finding enough minerals and land to build the energy infrastructure) and socioeconomically\nEven then\nthe EROI of renewable energies\nis still significantly lower compared to the high EROIs during the early days of fossil fuels\nCapellán-Pérez et al.\nsimulate what would happen to average EROI by 2050 should renewable energy sources increase from 15% to 30% (1st scenario) and from 15% to 50% (2nd scenario). In the first scenario, average EROI drops from currently 6:1 to 5:1; and down to 3:1 in the second scenario. If energy expenditures play an important role in the dynamics of economic growth, this means that renewable energies are fundamentally unable to propel an economy as fast as fossil fuels", "role": "user" }, { "content": "only\nrenewable\ns\nEven then\nthe EROI of renewable energies\nis still significantly lower compared to the high EROIs during the early days of fossil fuels\nrenewable\ns\ndrops\n3:1\nrenewable\ns\nfundamentally unable to propel an economy as fast as fossil fuels", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Renewables EROI is too low---they can’t propel growth as fast as fossil fuels.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "One could argue that green growth would only run on renewable energies\nlet us assume for a moment that a complete replacement of fossil fuels by renewables is possible materially (finding enough minerals and land to build the energy infrastructure) and socioeconomically\nEven then\nthe EROI of renewable energies\nis still significantly lower compared to the high EROIs during the early days of fossil fuels\nCapellán-Pérez et al.\nsimulate what would happen to average EROI by 2050 should renewable energy sources increase from 15% to 30% (1st scenario) and from 15% to 50% (2nd scenario). In the first scenario, average EROI drops from currently 6:1 to 5:1; and down to 3:1 in the second scenario. If energy expenditures play an important role in the dynamics of economic growth, this means that renewable energies are fundamentally unable to propel an economy as fast as fossil fuels", "role": "user" }, { "content": "growth\nonly\non renewable\ns\nEROI\nis\nsignificantly lower compared to\nearly\nfossil fuels\naverage EROI by 2050 should renewable\ns increase\nto 30%\nand\n50%\ndrops\nto 3:1\nIf energy\nplay an important role in\ngrowth\nrenewable\ns are fundamentally unable to propel an economy as fast as fossil fuels", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Everything that can be tertiarized has been. It can’t sustain continued growth.", "role": "system" }, { "content": "Not much tertiarisation left to do\nTertiarisation only provides a partial decoupling, and, importantly, one that has already occurred in most OECD countries. In these economies, the share of services in GDP is often already high, which is problematic because these are precisely those countries which have the highest ecological footprint per capita and thus should reduce their impact the most. Countries that have already reached a high degree of tertiarisation (more than 70% of value-added is generated in the service sector) retain a small industrial part that is increasingly difficult to compress.\nThat is because certain sectors simply cannot be dematerialised. This is the case for agriculture, transport, and housing construction, which, are often in the top sectors in terms of emissions and used materials. Cement is a good example. Representing 5% of global greenhouse gas emissions, its production implies both high levels of process emissions and energy consumption, as well as an important amount of increasingly scarce marine sand (Rubenstein, 2012; The Pembina Institute, 2014). Although constructions can substitute other materials to cement, it is difficult to imagine how services could possibly offer adequate substitutes to most industrial production with regards to elementary needs such as food, shelter, or mobility (the service of having a pizza home delivered requires roads, a vehicle, and, not least, a pizza made from material ingredients). Hence, dematerialisation only concerns a limited fraction of the global economy, leaving most of the environmental pressures unsolved.", "role": "user" }, { "content": "Tertiarisation only provides a partial decoupling\nThat is because certain sectors simply cannot be dematerialised. This is the case for agriculture, transport, and housing construction, which, are often in the top sectors in terms of emissions and used materials\nCement is a good example\nits production implies both high levels of process emissions and energy consumption, as well as an important amount of increasingly scarce marine sand\nAlthough constructions can substitute other materials to cement, it is difficult to imagine how services could possibly offer adequate substitutes to most industrial production with regards to elementary needs such as food, shelter, or mobility\ndematerialisation only concerns a limited fraction of the global economy, leaving most of the environmental pressures unsolved", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Everything that can be tertiarized has been. It can’t sustain continued growth.", "role": "system" }, { "content": "Tertiarisation only provides a partial decoupling\nThat is because certain sectors simply cannot be dematerialised. This is the case for agriculture, transport, and housing construction, which, are often in the top sectors in terms of emissions and used materials\nCement is a good example\nits production implies both high levels of process emissions and energy consumption, as well as an important amount of increasingly scarce marine sand\nAlthough constructions can substitute other materials to cement, it is difficult to imagine how services could possibly offer adequate substitutes to most industrial production with regards to elementary needs such as food, shelter, or mobility\ndematerialisation only concerns a limited fraction of the global economy, leaving most of the environmental pressures unsolved", "role": "user" }, { "content": "partial\ncannot be dematerialised\nag\ntransport\nhousing\nCement\nother materials\ndifficult to imagine how services could\nsubstitute\nelementary\nfood\nshelter\nmobility\nleaving most of the environmental pressures unsolved", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Everything that can be tertiarized has been. It can’t sustain continued growth.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Tertiarisation only provides a partial decoupling\nThat is because certain sectors simply cannot be dematerialised. This is the case for agriculture, transport, and housing construction, which, are often in the top sectors in terms of emissions and used materials\nCement is a good example\nits production implies both high levels of process emissions and energy consumption, as well as an important amount of increasingly scarce marine sand\nAlthough constructions can substitute other materials to cement, it is difficult to imagine how services could possibly offer adequate substitutes to most industrial production with regards to elementary needs such as food, shelter, or mobility\ndematerialisation only concerns a limited fraction of the global economy, leaving most of the environmental pressures unsolved", "role": "user" }, { "content": "Tertiarisation only provides\npartial decoupling\ncertain sectors\ncannot be dematerialised\nag\ntransport, and housing\nCement is a\nexample\nAlthough constructions can substitute other materials\nit is difficult to imagine how services could\nsubstitute\nfood, shelter, or mobility\nleaving most\npressures unsolved", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Dematerialization from services is fake.", "role": "system" }, { "content": "As it turns out, the much-celebrated shift to services has delivered no improvements at all when it comes to the resource intensity of rich nations. Services represent 74% of GDP in high-income nations, having grown rapidly since deindustrialisation began in the 1990s, and yet the material use of high-income nations is outpacing GDP growth. Indeed, while highincome nations have the highest share of services in terms of contribution to GDP, they also have the highest per capita material footprints. By far. The same is true on a global scale. Services have grown from 63% of GDP in 1997 to 69% in 2015, according to World Bank data. Yet during this same period global material use has accelerated. In other words, we have seen a rematerialisation of the global economy even as we have shifted to services.\nWhat explains this strange result? It’s partly that the incomes people make in the service economy end up getting used to buy material goods. People might earn their money on YouTube, but they spend it buying things like furniture and cars. But it’s also because services themselves turn out to be resource-intensive in their own right. Take the tourism sector, for example. Tourism is classed as a service, and yet it requires an enormous material infrastructure to keep it going – airports, planes, buses, cruise ships, resorts, hotels, swimming pools and theme parks (all of which are services themselves).", "role": "user" }, { "content": "the\ncelebrated shift to services has delivered no improvements at all when it comes to\nresource intensity\nServices represent 74% of GDP in high-income nations, having grown rapidly since deindustrialisation\nand yet the material use of high-income nations is outpacing GDP growth\nwhile highincome nations have the highest share of services in terms of contribution to GDP, they also have the highest per capita material footprints. By far\nServices have grown from 63% of GDP in 1997 to 69% in 2015, according to World Bank data. Yet during this same period global material use has accelerated\nwe have seen a rematerialisation of the global economy even as we have shifted to services.\nWhat explains this\n? It’s partly that the incomes people make in the service economy end up getting used to buy material goods\nPeople might earn their money on YouTube, but they spend it buying things like furniture and cars. But it’s also because services themselves turn out to be resource-intensive\nTake\ntourism\nTourism is classed as a service, and yet it requires an enormous material infrastructure\nairports, planes, buses, cruise ships, resorts, hotels, swimming pools and theme parks (all of which are services themselves).", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Dematerialization from services is fake.", "role": "system" }, { "content": "the\ncelebrated shift to services has delivered no improvements at all when it comes to\nresource intensity\nServices represent 74% of GDP in high-income nations, having grown rapidly since deindustrialisation\nand yet the material use of high-income nations is outpacing GDP growth\nwhile highincome nations have the highest share of services in terms of contribution to GDP, they also have the highest per capita material footprints. By far\nServices have grown from 63% of GDP in 1997 to 69% in 2015, according to World Bank data. Yet during this same period global material use has accelerated\nwe have seen a rematerialisation of the global economy even as we have shifted to services.\nWhat explains this\n? It’s partly that the incomes people make in the service economy end up getting used to buy material goods\nPeople might earn their money on YouTube, but they spend it buying things like furniture and cars. But it’s also because services themselves turn out to be resource-intensive\nTake\ntourism\nTourism is classed as a service, and yet it requires an enormous material infrastructure\nairports, planes, buses, cruise ships, resorts, hotels, swimming pools and theme parks (all of which are services themselves).", "role": "user" }, { "content": "no improvements at all\nresource intensity\nmaterial use of high-income nations is outpacing GDP growth\nshare\nhighest per capita material footprints. By far\nduring this same period global material use has accelerated\nrematerialisation\neven as we have shifted to services\nWhat explains this\n?\nincomes\nused to buy material goods\nthings\nservices themselves turn out to be resource-intensive\ntourism\nTourism\nenormous material infrastructure", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Dematerialization from services is fake.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "the\ncelebrated shift to services has delivered no improvements at all when it comes to\nresource intensity\nServices represent 74% of GDP in high-income nations, having grown rapidly since deindustrialisation\nand yet the material use of high-income nations is outpacing GDP growth\nwhile highincome nations have the highest share of services in terms of contribution to GDP, they also have the highest per capita material footprints. By far\nServices have grown from 63% of GDP in 1997 to 69% in 2015, according to World Bank data. Yet during this same period global material use has accelerated\nwe have seen a rematerialisation of the global economy even as we have shifted to services.\nWhat explains this\n? It’s partly that the incomes people make in the service economy end up getting used to buy material goods\nPeople might earn their money on YouTube, but they spend it buying things like furniture and cars. But it’s also because services themselves turn out to be resource-intensive\nTake\ntourism\nTourism is classed as a service, and yet it requires an enormous material infrastructure\nairports, planes, buses, cruise ships, resorts, hotels, swimming pools and theme parks (all of which are services themselves).", "role": "user" }, { "content": "the\nshift to services has delivered no improvements at all\nthe material use of high-income nations is outpacing GDP growth\nhighincome nations have the highest share\nalso\nthe highest per capita material footprints. By far\nwe have seen\nrematerialisation\neven as we\nshifted to services\nWhat explains this\n?\npartly\nincomes\ngetting used to buy\nthings\nBut\nalso\nservices themselves turn out\nresource-intensive\nTourism\nrequires\nenormous material infrastructure", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It won’t happen without a mindset shift.", "role": "system" }, { "content": "The a-growth theory put forward by van den Bergh prescribes that an ambitious package of policy reforms should be implemented to ensure strict environmental protection: ending subsidies to fossil fuels, scaling up renewables, taxing polluting substances and activities, and putting in place a widespread cap-and-trade mechanism. This set of policy proposals is derived from the idea that social welfare should be primarily pursued, irrespective of whether it causes GDP growth or contraction. The proposed policy solutions would not alter, at least initially, the wider architecture of our socio-economic system (that is why the associated scenario, Policy Reform, is considered a Conventional world) and, even with a steep price on carbon, lifestyle changes, and without fossil fuel subsidies, we are likely to commit ourselves to some form of dangerous global warming in the future (van Vuuren et al., 2018). This is why technological solutions, in the form of geoengineering and development of clean energy, remain needed, along with some form of values and behavior change.\nBefore problems. The enormous political and economic clout of market actors with a vested interest in perpetuating the status quo is the most problematic aspect of this proposal. The risk that powerful vested interests might prevent effective policy solutions to be implemented is compounded by the fact that the a-growth theory remains rooted in the current understanding of politics and economics, from which powerful market actors profit. Similarly to the theory underlying the narrative of sustainable development currently informing environmental politics, the a-growth theory put forward by van den Bergh subscribes to an economic understanding of the world in which the social reality and the ontology of economics (prices, preferences, individuals, firms, etc.) match. Current environmental politics is premised on an understanding of environmental problems as market failures. Caps, taxes, and incentives are all instruments devised to address this undesired event. Yet, none of these instruments have prevented market actors from successfully pushing their polluting agenda. Market actors have an array of techniques to achieve this goal: framing climate change and environmental problems as risks, and thus susceptible to be addressed with the usual risk management tools already available to them (Wright & Nyberg, 2015), sponsoring research which fuels climate change skepticism (Oreskes & Conway, 2010), and lobbying and campaign contributions (Christiano, 2012). Powerful vested interests have so far prevented more modest policy solutions to be implemented than those proposed by van den Bergh. It is difficult to see how this might change without first a deep refashioning of our values and behavior, which seems to be excluded both by van den Bergh and by the Policy Reform scenario.", "role": "user" }, { "content": "a-growth theory\nprescribes\nan ambitious package of policy reforms should be implemented to ensure strict environmental protection: ending subsidies to fossil fuels, scaling up renewables, taxing polluting substances and activities, and putting in place a widespread cap-and-trade mechanism. This set of policy proposals is derived from the idea that social welfare should be primarily pursued, irrespective of\nGDP growth\nThe proposed policy solutions would not alter\nthe wider architecture of our socio-economic system\nand, even with a steep price on carbon, lifestyle changes, and without fossil fuel subsidies, we are likely to commit ourselves to some form of dangerous global warming in the future\nThe enormous political and economic clout of market actors with a vested interest in perpetuating the status quo is the most problematic aspect of this proposal\npowerful vested interests might prevent effective policy\nto be implemented\ncompounded by the fact that the a-growth theory remains rooted in the current understanding of politics and economics\nfrom which powerful market actors profit. Similarly to the theory underlying the narrative of sustainable development\na-growth theory\nsubscribes to an economic understanding of the world in which the social reality and the ontology of economics\nmatch\nCurrent environmental politics is premised on an understanding of environmental problems as market failures\nCaps, taxes, and incentives are all instruments devised to address this undesired event. Yet, none of these instruments have prevented market actors from successfully pushing their polluting agenda\nMarket actors have an array of techniques to achieve this goal: framing climate change and environmental problems as risks\nand thus susceptible to be addressed with the usual risk management tools\nsponsoring research which fuels climate change skepticism\nand lobbying and campaign contributions\nPowerful vested interests have so far prevented more modest policy solutions to be implemented than those proposed\nIt is difficult to see how this might change without first a deep refashioning of our values and behavior\nexcluded\nby\nthe Policy Reform scenario", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It won’t happen without a mindset shift.", "role": "system" }, { "content": "a-growth theory\nprescribes\nan ambitious package of policy reforms should be implemented to ensure strict environmental protection: ending subsidies to fossil fuels, scaling up renewables, taxing polluting substances and activities, and putting in place a widespread cap-and-trade mechanism. This set of policy proposals is derived from the idea that social welfare should be primarily pursued, irrespective of\nGDP growth\nThe proposed policy solutions would not alter\nthe wider architecture of our socio-economic system\nand, even with a steep price on carbon, lifestyle changes, and without fossil fuel subsidies, we are likely to commit ourselves to some form of dangerous global warming in the future\nThe enormous political and economic clout of market actors with a vested interest in perpetuating the status quo is the most problematic aspect of this proposal\npowerful vested interests might prevent effective policy\nto be implemented\ncompounded by the fact that the a-growth theory remains rooted in the current understanding of politics and economics\nfrom which powerful market actors profit. Similarly to the theory underlying the narrative of sustainable development\na-growth theory\nsubscribes to an economic understanding of the world in which the social reality and the ontology of economics\nmatch\nCurrent environmental politics is premised on an understanding of environmental problems as market failures\nCaps, taxes, and incentives are all instruments devised to address this undesired event. Yet, none of these instruments have prevented market actors from successfully pushing their polluting agenda\nMarket actors have an array of techniques to achieve this goal: framing climate change and environmental problems as risks\nand thus susceptible to be addressed with the usual risk management tools\nsponsoring research which fuels climate change skepticism\nand lobbying and campaign contributions\nPowerful vested interests have so far prevented more modest policy solutions to be implemented than those proposed\nIt is difficult to see how this might change without first a deep refashioning of our values and behavior\nexcluded\nby\nthe Policy Reform scenario", "role": "user" }, { "content": "policy reforms\nsocial welfare\nprimarily\nirrespective\nGDP growth\nnot alter\nwider architecture\neven with\nlikely to commit ourselves to some form of dangerous global warming in the future\nenormous political and economic clout of market actors\nvested interest in perpetuating the status quo\nmost problematic aspect of this proposal\nprevent effective policy\ncompounded\ncurrent understanding\npolitics\neconomics\nprofit\nsustainable development\neconomic\nsocial reality\nontology of economics\nmatch\nmarket failures\naddress\nnone of these instruments\nprevent\nactors from successfully pushing their polluting agenda\narray of techniques\nrisks\nmanagement tools\nskepticism\nlobbying\ncampaign\nprevented more modest policy solutions to be implemented than those proposed\nfirst\ndeep refashioning of our values and behavior\nexcluded", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It won’t happen without a mindset shift.\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "a-growth theory\nprescribes\nan ambitious package of policy reforms should be implemented to ensure strict environmental protection: ending subsidies to fossil fuels, scaling up renewables, taxing polluting substances and activities, and putting in place a widespread cap-and-trade mechanism. This set of policy proposals is derived from the idea that social welfare should be primarily pursued, irrespective of\nGDP growth\nThe proposed policy solutions would not alter\nthe wider architecture of our socio-economic system\nand, even with a steep price on carbon, lifestyle changes, and without fossil fuel subsidies, we are likely to commit ourselves to some form of dangerous global warming in the future\nThe enormous political and economic clout of market actors with a vested interest in perpetuating the status quo is the most problematic aspect of this proposal\npowerful vested interests might prevent effective policy\nto be implemented\ncompounded by the fact that the a-growth theory remains rooted in the current understanding of politics and economics\nfrom which powerful market actors profit. Similarly to the theory underlying the narrative of sustainable development\na-growth theory\nsubscribes to an economic understanding of the world in which the social reality and the ontology of economics\nmatch\nCurrent environmental politics is premised on an understanding of environmental problems as market failures\nCaps, taxes, and incentives are all instruments devised to address this undesired event. Yet, none of these instruments have prevented market actors from successfully pushing their polluting agenda\nMarket actors have an array of techniques to achieve this goal: framing climate change and environmental problems as risks\nand thus susceptible to be addressed with the usual risk management tools\nsponsoring research which fuels climate change skepticism\nand lobbying and campaign contributions\nPowerful vested interests have so far prevented more modest policy solutions to be implemented than those proposed\nIt is difficult to see how this might change without first a deep refashioning of our values and behavior\nexcluded\nby\nthe Policy Reform scenario", "role": "user" }, { "content": "policy reforms\nwould not alter\nglobal warming\nThe\nclout of market actors\nprevent effective policy\nCaps, taxes, and incentives\nnone\nprevent\nactors\npolluting\nsponsoring\nskepticism\nand lobbying\nhave\nprevented\nmodest\nsolutions\nIt is difficult to\nchange without\nrefashioning\nour values", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: AND, empirical successes prove it’s possible---but it needs crisis to go mainstream.", "role": "system" }, { "content": "In time, this pressure is likely to shift from submitting requests to the state to making demands on it, and then to taking increasing control of it. There will be increasing insistence that frivolous industries must be phased out so that scarce resources can be devoted to meeting fundamental town and regional needs. Meanwhile towns will be driven by necessity to bypass the center and take initiatives such as setting up their own farms, energy supplies and factories, thus transferring various functions out of the control of the centre. There will be increasing recognition that the local is the only level where the right decisions for self-sufficient communities can be made. In time, these shifts will lead to the transfer of functions and power from state-level agencies to the local level, leaving the center with relatively few tasks, and mainly with the role of facilitating local activities. \nThis radical restructuring could conceivably be a smooth and peaceful process, driven by a general recognition that scarcity is making local self-governing communities the only viable option. If this happens then in effect, Stage 1 will be recognized as having constituted the revolution, essentially a cultural phenomenon, and the macroscopic structural changes in Stage 2 will be seen as a consequence of the revolution. \nThus a case for Anarchist theory and practice \nIt will be evident that the alternative social organization sketched above is a fairly common Anarchist vision (although there are also varieties that are not being advocated). The argument is that settlements enabling a high quality of life for all, despite very low resource use rates, must involve all members in thoroughly participatory deliberations regarding the design, development and running of their local productive, political and social systems. Their ethos must be non-hierarchical, cooperative and collectivist, seeking to avoid all forms of domination and to prioritize the public good. They must draw on the voluntary good will and energy of conscientious citizens who are ready to contribute generously and to identify and deal with problems informally and spontaneously, and to focus on seeking mutually beneficial arrangements with little if any need for industrial infrastructures and transport networks, bureaucracy, paid officials or politicians. Regional and wider issues will be tackled by the characteristic Anarchist mechanisms of federations and (powerless) delegates bringing recommendations back down to town meetings. The principle of 'subsidiarity' is evident in the practice of grass-roots politics, the avoidance of hierarchies, and the central role of town assemblies. The very low resource costs sustainability requires are achievable because of the proximity, diversity of functions and integration, the familiarity enabling informal communication and spontaneous action, and the elimination of many processes (e.g., transport, waste dumping, fertilizer production, packaging). \nIn the 1930s the Spanish Anarchists in the Barcelona region showed what could be done by ordinary workers and citizens. An impressive current example is the Catalan Integral Cooperative movement (Dafermos 2017; TSW 2015a). Thousands work in hundreds of different cooperatives providing hundreds of thousands of dollars worth of food, goods and services, including unemployment and other welfare services. They operate more than twenty food 'pantries' largely via voluntary labor, handling more than a thousand products. Their goal is to build an alternative society focused on meeting needs, with no involvement of the state or market principles. Many eco-villages operate according to Anarchist principles, achieving high levels of sustainability (again see Lockyer 2017 and Grinde et al. 2018). \nIn addition it will be evident that the discussion of transition strategy also follows Anarchist principles, especially in the notion of 'prefiguring' the new here and now within the old, not depending on the centre let alone a vanguard party, and recognizing the importance of ideas and values. \nThe advent of GFC 2 \nUnfortunately the foregoing transition sequence is likely to be greatly disrupted and possibly thwarted a global financial crisis of much greater magnitude than the 2008 event. It is widely recognized that the much higher levels of debt are likely to bring on at least a serious recession, and probably worse in the next few years. The global economy is heavily dependent on petroleum supply, which is been kept up by 'fracking', but this has only been made possible by enormous debt; none of the major companies in the arena has ever made a profit. Several analysts have pointed out that the price levels necessary to make the new sources of petroleum profitable now seem to be above those necessary to enable economies to function normally. In addition, Ahmed (2017) has argued persuasively that the rapidly worsening population, food, water and ecological conditions affecting Middle Eastern petroleum suppliers are increasing their chances of becoming failed states. Meanwhile the proportion of their petroleum production they must use internally is increasing, adding to the possibility that their capacity to export will dry up within a decade. These and other deteriorating resource and ecological conditions (especially falling Energy Return on Energy Invested rates) are likely to trigger serious global economic disruption long before localist initiatives have been well enough established. \nYet it is very unlikely that the kind of transition envisaged could begin unless there is major breakdown in the existing consumer-capitalist system. As long as it keeps the supermarket shelves stocked, discontent is likely to be muted, and focused on demands for more jobs and higher incomes rather than system replacement. The Goldilocks outcome would seem to be an economic depression that falls short of catastrophic breakdown, but is serious enough to convince large numbers that the system is not going to provide for them. \nThe challenge to the Left \nThis analysis has especially important implications for those who are radically critical of consumercapitalist society. Firstly it is evident that the revolution required to solve the problem is far bigger than that which Marx envisaged. Merely getting rid of capitalism will not suffice. Secondly, the most promising frontier now for such critics is the challenge to current society being set by unsustainable resource and ecological impacts. Latouche said the limits to growth are giving critical theory its last chance (2012: 75). Yet the foregoing argument has been that this opportunity has hardly been recognized, let alone taken up. Bookchin saw this some time ago. \"The New Left, like the old left, has never grasped the revolutionary potential of the ecological issues, nor has it used ecology as a basis for understanding the problems of communist reconstruction and utopia\" (1973: 242). Significant and increasing numbers of ordinary people are seriously concerned about these issues and are thinking more or less in the general direction of replacing consumer-capitalism with localism and simpler ways. These themes are likely to be the most effective foundations for critical social theory and practice now. \nBut unfortunately the Left has a deeply entrenched reluctance to embrace these ideas. The traditional assumption has been that when power has been taken from the capitalist class, the contradictions preventing full application of the productive forces will be removed and technical advance will lift all to material wealth. Socialism is distinctly not conceived today in terms of frugality or localism. Indeed some socialists embrace 'ecomodernist' ideas, notably Phillips (2014) and Sharzer (2012), who explicitly spurn the suggestion that local or simpler ways are necessary or desirable. \nDavid Harvey represents the many Marxists who reject localism both as a goal and as a revolutionary strategy in favor of the typical socialist focus on action at the state level (Harvey 2017). For a critique, see Springer (2017). The Marxist position fails to address current circumstances, where the goal must be to contradict individualistic competitive affluence and must focus on citizen involvement in local economies. Major change at the central or state level cannot be achieved before a profound cultural revolution has been achieved, and this is most likely to occur via developments at the local level. \nDelusion and denial: the inability to respond \nThere are difficult and puzzling issues for social theorists that will not be taken up in this article. They are the psychological and institutional reasons for the failure to deal adequately with the limits to growth predicament, or with its major sub-problems such as the looming petroleum supply, debt, and climate change crises. The core phenomenon to be explained here would seem to be failure to even recognize the existence and/or seriousness of the problems, rather than lack of appropriate remedial action. \nThe essential causal factor is surely that if the limits to growth analysis is accepted then perhaps the most deeply entrenched post-Enlightenment assumption has to be jettisoned, i.e., the taken-for-granted conviction that progress and the good life are defined by capacity to produce and consume more and more material wealth. The suggestion that the supreme social goal should be materially simple lifestyles and systems, with no prospect of rising to greater affluence over time, would seem to be about as distasteful and unthinkable to workers and the lumpenproletariat as to the super-affluent 1%. \n6. Conclusions: a reorientation of social theory \nThe argument is that the advent of the limits to growth issue should be seen as requiring a major shift in the focal concerns of social theorists, especially those interested in critical perspectives on contemporary society and in sustainability and utopian themes. To begin with, a limits perspective involves a commitment to an inescapable logic that leads to quite specific conclusions regarding desirable social forms and how they might be achieved. If the limits are as severe as has been argued, then the goal must be transition from consumer-capitalist society to a general form that involves far lower resource use, and this has to mean mostly small-scale local economies that are self-governing, basically cooperative and committed to materially frugal lifestyles. If this is so, then the transition is essentially a cultural problem, and it is difficult to imagine how these ways could be established other than through a slow grass-roots process whereby ordinary people increasingly coerced by scarcity and economic deterioration take on the restructuring of their own suburbs, towns and regions (Alexander and Gleeson 2019). A major implication drawn above is that centralized agencies, especially the state, cannot drive these changes through.", "role": "user" }, { "content": "There will be\ninsistence that frivolous industries\nbe phased out so that scarce resources can be devoted to meeting fundamental\n regional needs.\ntowns will be driven by necessity to bypass the center and\nset\nup their own farms, energy supplies and factories,\n transferring\nfunctions out of the control of the centre.\nthe local is the only level where\nself-sufficient communities can be made. In time\nshifts will lead to\ntransfer of functions and power from state-level agencies to the local level\n.\nThis\ncould\nbe a smooth and peaceful process\ndriven by\ngeneral recognition that scarcity is making local self-governing communities the only\noption.\nThe very low resource costs sustainability requires are achievable because of the proximity\nof functions\n, the familiarity enabling informal communication and spontaneous action, and the elimination of many processes (e.g., transport, waste dumping, fertilizer production, packaging).\nAn impressive\nexample is the Catalan Integral Cooperative movement\n. Thousands work in hundreds of different cooperatives providing hundreds of thousands of dollars worth of food, goods and services, including unemployment and other welfare services.\neco-villages\nachiev\nhigh levels of sustainability\nlikely to be\na global financial crisis of much greater magnitude than the 2008\nmuch higher levels of debt are likely to bring on at least a serious recession\nin the next few years.\ndeteriorating resource and ecological conditions\nlikely\ntrigger serious global economic disruption\n.\nit is very unlikely\nthe\ntransition envisaged could begin unless there is major breakdown in the existing consumer-capitalist system. As long as it keeps the supermarket shelves stocked, discontent is\nmuted, and focused on demands for more jobs and higher incomes rather than system replacement. The Goldilocks outcome would\nbe a\ndepression\n short of catastrophic breakdown, but\nserious enough to convince large numbers that the system is not going to provide for them.\nSignificant and increasing numbers of ordinary people are seriously concerned\nand\nthinking\nin the\ndirection of replacing consumer-capitalism with localism and simpler ways. These\nare\nthe most effective foundations for\nsocial theory and practice now.\nprofound cultural revolution\nis most likely to occur\nat the local level.\nif the limits to growth analysis is accepted\nthe most deeply entrenched\nassumption has to be jettisoned,\nthe taken-for-granted conviction that progress\nare defined by capacity to produce and consume more\n material wealth.\nthe goal must be transition from\nto a\nform that involves far lower resource use, and this has to mean\n small-scale local economies that are self-governing,\n cooperative and committed to materially frugal lifestyles.\nthe transition is\na cultural problem, and it is difficult to imagine how these\ncould be established other than through a\n grass-roots process whereby ordinary people increasingly coerced by scarcity and economic deterioration take on the restructuring of their own suburbs, towns and regions\nthe state, cannot drive these changes through", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: AND, empirical successes prove it’s possible---but it needs crisis to go mainstream.", "role": "system" }, { "content": "There will be\ninsistence that frivolous industries\nbe phased out so that scarce resources can be devoted to meeting fundamental\n regional needs.\ntowns will be driven by necessity to bypass the center and\nset\nup their own farms, energy supplies and factories,\n transferring\nfunctions out of the control of the centre.\nthe local is the only level where\nself-sufficient communities can be made. In time\nshifts will lead to\ntransfer of functions and power from state-level agencies to the local level\n.\nThis\ncould\nbe a smooth and peaceful process\ndriven by\ngeneral recognition that scarcity is making local self-governing communities the only\noption.\nThe very low resource costs sustainability requires are achievable because of the proximity\nof functions\n, the familiarity enabling informal communication and spontaneous action, and the elimination of many processes (e.g., transport, waste dumping, fertilizer production, packaging).\nAn impressive\nexample is the Catalan Integral Cooperative movement\n. Thousands work in hundreds of different cooperatives providing hundreds of thousands of dollars worth of food, goods and services, including unemployment and other welfare services.\neco-villages\nachiev\nhigh levels of sustainability\nlikely to be\na global financial crisis of much greater magnitude than the 2008\nmuch higher levels of debt are likely to bring on at least a serious recession\nin the next few years.\ndeteriorating resource and ecological conditions\nlikely\ntrigger serious global economic disruption\n.\nit is very unlikely\nthe\ntransition envisaged could begin unless there is major breakdown in the existing consumer-capitalist system. As long as it keeps the supermarket shelves stocked, discontent is\nmuted, and focused on demands for more jobs and higher incomes rather than system replacement. The Goldilocks outcome would\nbe a\ndepression\n short of catastrophic breakdown, but\nserious enough to convince large numbers that the system is not going to provide for them.\nSignificant and increasing numbers of ordinary people are seriously concerned\nand\nthinking\nin the\ndirection of replacing consumer-capitalism with localism and simpler ways. These\nare\nthe most effective foundations for\nsocial theory and practice now.\nprofound cultural revolution\nis most likely to occur\nat the local level.\nif the limits to growth analysis is accepted\nthe most deeply entrenched\nassumption has to be jettisoned,\nthe taken-for-granted conviction that progress\nare defined by capacity to produce and consume more\n material wealth.\nthe goal must be transition from\nto a\nform that involves far lower resource use, and this has to mean\n small-scale local economies that are self-governing,\n cooperative and committed to materially frugal lifestyles.\nthe transition is\na cultural problem, and it is difficult to imagine how these\ncould be established other than through a\n grass-roots process whereby ordinary people increasingly coerced by scarcity and economic deterioration take on the restructuring of their own suburbs, towns and regions\nthe state, cannot drive these changes through", "role": "user" }, { "content": "frivolous industries\nfundamental\nregional needs\nnecessity\nbypass the center\nset\nfarms\nenergy supplies\nout of the control of the centre\nlocal\nIn time\npower\nto the local level\nsmooth and peaceful process\nlow resource costs sustainability requires\ninformal communication\nspontaneous action\nelimination of many processes\ntransport\nwaste dumping\nfertilizer production\npackaging\nexample\nCatalan Integral Coop\nThousands\nhundreds\ncoop\ns\nthousands\nfood\ngoods and services\nunemployment\nwelfare services\neco-villages\nachiev\nhigh levels of sustainability\nserious global economic disruption\nvery unlikely\ntransition\nunless there is major breakdown\nshelves stocked\nmuted\nfor more jobs and higher income\nsystem replacement\ndepression\nshort of catastrophic breakdown\nserious enough to convince large numbers that the system is not going to provide for them\nSignificant\nincreasing\nconcerned\nthinking\ncap\nlocalism and simpler ways\nthe most effective foundations\npractice\nprofound cultural revolution\nat the local level\nmaterial wealth\nmust be transition\nfar lower resource use\nsmall-scale local economies\nself-governing\ncooperative\ncommitted to materially frugal lifestyles\na cultural problem\nthrough\ngrass-roots process\nordinary people\ncoerced by\n economic deterioration\ntheir own\ncannot drive these changes through", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: AND, empirical successes prove it’s possible---but it needs crisis to go mainstream.\n\nHighlight Ratio: 0.2", "role": "system" }, { "content": "There will be\ninsistence that frivolous industries\nbe phased out so that scarce resources can be devoted to meeting fundamental\n regional needs.\ntowns will be driven by necessity to bypass the center and\nset\nup their own farms, energy supplies and factories,\n transferring\nfunctions out of the control of the centre.\nthe local is the only level where\nself-sufficient communities can be made. In time\nshifts will lead to\ntransfer of functions and power from state-level agencies to the local level\n.\nThis\ncould\nbe a smooth and peaceful process\ndriven by\ngeneral recognition that scarcity is making local self-governing communities the only\noption.\nThe very low resource costs sustainability requires are achievable because of the proximity\nof functions\n, the familiarity enabling informal communication and spontaneous action, and the elimination of many processes (e.g., transport, waste dumping, fertilizer production, packaging).\nAn impressive\nexample is the Catalan Integral Cooperative movement\n. Thousands work in hundreds of different cooperatives providing hundreds of thousands of dollars worth of food, goods and services, including unemployment and other welfare services.\neco-villages\nachiev\nhigh levels of sustainability\nlikely to be\na global financial crisis of much greater magnitude than the 2008\nmuch higher levels of debt are likely to bring on at least a serious recession\nin the next few years.\ndeteriorating resource and ecological conditions\nlikely\ntrigger serious global economic disruption\n.\nit is very unlikely\nthe\ntransition envisaged could begin unless there is major breakdown in the existing consumer-capitalist system. As long as it keeps the supermarket shelves stocked, discontent is\nmuted, and focused on demands for more jobs and higher incomes rather than system replacement. The Goldilocks outcome would\nbe a\ndepression\n short of catastrophic breakdown, but\nserious enough to convince large numbers that the system is not going to provide for them.\nSignificant and increasing numbers of ordinary people are seriously concerned\nand\nthinking\nin the\ndirection of replacing consumer-capitalism with localism and simpler ways. These\nare\nthe most effective foundations for\nsocial theory and practice now.\nprofound cultural revolution\nis most likely to occur\nat the local level.\nif the limits to growth analysis is accepted\nthe most deeply entrenched\nassumption has to be jettisoned,\nthe taken-for-granted conviction that progress\nare defined by capacity to produce and consume more\n material wealth.\nthe goal must be transition from\nto a\nform that involves far lower resource use, and this has to mean\n small-scale local economies that are self-governing,\n cooperative and committed to materially frugal lifestyles.\nthe transition is\na cultural problem, and it is difficult to imagine how these\ncould be established other than through a\n grass-roots process whereby ordinary people increasingly coerced by scarcity and economic deterioration take on the restructuring of their own suburbs, towns and regions\nthe state, cannot drive these changes through", "role": "user" }, { "content": "towns will be driven by necessity to\ntheir own farms, energy\nand factories,\ntransferring\npower\nto the local level\nlow resource costs\nare achievable because of\ninformal\nspontaneous action, and\nelimination of\ntransport\ndumping\npackaging\nthe Catalan\nCoop\nThousands\nin hundreds of\ncoop\ns providing\nfood, goods\nand\nwelfare\neco-villages\nachiev\nsustainability\nit is\nunlikely\ntransition\nbegin unless there is major breakdown\nAs long as it keeps\nshelves stocked, discontent is\nmuted\nSignificant\nnumbers\nare\nthinking\nof replacing\ncap\nwith localism\nThese\nare\neffective foundations for\nprofound cultural revolution\nlower\nuse\nmean\nordinary people\ncoerced by\neconomic deterioration\nrestructuring\ntheir own\nregions", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It’s a distinction with a difference---‘rule of reason’ and ‘per se’ have precise meanings AND access literature with completely different base assumptions.", "role": "system" }, { "content": "In response to recent attacks on per se rules, courts have clung to the term and to its absolutism by steadily narrowing the definitions of the types of behavior subject to those rules. The result has been not only much confusion, with words being used to designate things far narrower than their commonly understood meanings, but also the application of permissive rule of reason treatment to some behavior which, while not meriting absolute prohibition, clearly deserves careful antitrust analysis.\nThe proper response to this confusion is to retain the valid insight of per se jurisprudence, that certain types of behavior should be treated as more suspect than others, while abandoning the indefensible absolutism of the term \"per se.\" However, since terms carry with them not only precise meanings, but also more general attitudes, \"per se\" must be replaced with a term which does not carry the permissive connotations which have become associated with the \"rule of reason.\"\nThe best available term for this new test is strict antitrust scrutiny. The use of such a term, and the type of analysis it suggests, is well known in constitutional law, where it by no means is associated with leniency. When faced with conduct which would traditionally be labelled per se illegal under the antitrust laws, courts should apply strict antitrust scrutiny. They should ask whether the defendant can carry the heavy burden of demonstrating that its conduct is narrowly tailored to achieve a procompetitive end. By replacing a system which places absolute prohibitions on types of conduct which can be defined so narrowly as to be irrelevant with a system which places, not absolute prohibitions, but heavy negative presumptions, on a larger set of behaviors, strict scrutiny should, on the whole, lead to more vigorous antitrust enforcement.", "role": "user" }, { "content": "In response to recent attacks on per se rules, courts have clung to the term and to its absolutism by steadily narrowing the definitions of the types of behavior subject to those rules.\nthe application of permissive rule of reason treatment to some behavior which, while not meriting absolute prohibition, clearly deserves careful antitrust analysis\nthe\nabsolutism of the term \"per se\nterms carry\nnot only precise meanings, but also\ngeneral attitudes,\nper se\"\ndoes not carry the permissive connotations which have become associated with the \"rule of reason.\"\nWhen faced with conduct which would traditionally be labelled per se illegal under\nantitrust\ncourts should apply strict antitrust scrutiny. They\nreplacing a system which places absolute prohibitions on\nconduct\nwith a system which places, not absolute prohibitions, but heavy negative presumptions, on a larger set of behaviors", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It’s a distinction with a difference---‘rule of reason’ and ‘per se’ have precise meanings AND access literature with completely different base assumptions.", "role": "system" }, { "content": "In response to recent attacks on per se rules, courts have clung to the term and to its absolutism by steadily narrowing the definitions of the types of behavior subject to those rules.\nthe application of permissive rule of reason treatment to some behavior which, while not meriting absolute prohibition, clearly deserves careful antitrust analysis\nthe\nabsolutism of the term \"per se\nterms carry\nnot only precise meanings, but also\ngeneral attitudes,\nper se\"\ndoes not carry the permissive connotations which have become associated with the \"rule of reason.\"\nWhen faced with conduct which would traditionally be labelled per se illegal under\nantitrust\ncourts should apply strict antitrust scrutiny. They\nreplacing a system which places absolute prohibitions on\nconduct\nwith a system which places, not absolute prohibitions, but heavy negative presumptions, on a larger set of behaviors", "role": "user" }, { "content": "permissive\nnot meriting\nprohibition\nanalysis\nprecise meanings\ngeneral attitudes\npermissive connotations\ntraditionally\nscrutiny\nreplacing\nprohibitions\nnot\nprohibitions\npresumptions", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It’s a distinction with a difference---‘rule of reason’ and ‘per se’ have precise meanings AND access literature with completely different base assumptions.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "In response to recent attacks on per se rules, courts have clung to the term and to its absolutism by steadily narrowing the definitions of the types of behavior subject to those rules.\nthe application of permissive rule of reason treatment to some behavior which, while not meriting absolute prohibition, clearly deserves careful antitrust analysis\nthe\nabsolutism of the term \"per se\nterms carry\nnot only precise meanings, but also\ngeneral attitudes,\nper se\"\ndoes not carry the permissive connotations which have become associated with the \"rule of reason.\"\nWhen faced with conduct which would traditionally be labelled per se illegal under\nantitrust\ncourts should apply strict antitrust scrutiny. They\nreplacing a system which places absolute prohibitions on\nconduct\nwith a system which places, not absolute prohibitions, but heavy negative presumptions, on a larger set of behaviors", "role": "user" }, { "content": "the\npermissive rule of reason\nnot meriting\nprohibition\ndeserves\nantitrust analysis\nper se\ncarry\nprecise meanings, but also\ngeneral attitudes,\nper se\ndoes not carry the permissive connotations\nassociated with\nrule of reason\nWhen\nconduct\nwould traditionally be\nper se illegal\ncourts\napply\nscrutiny\nreplacing\nprohibitions on\nconduct\nwith\nnot\nprohibitions, but\npresumptions", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It’s the core of the modern debate about antitrust AND there are plenty of AFF arguments.", "role": "system" }, { "content": "Section 1 of the Sherman Act prohibits any \"conspiracy, in restraint of trade.\"36 For most of the twentieth century, the federal courts have assumed that they must choose between two opposite methods of analyzing restraints of trade under section 1: a \"per se rule\" that deems certain conduct illegal on its face; 37 or a \"rule of reason\" that inquires into all conceivable circumstances before determining the legality of a particular restraint. 38 The per se and rule of reason approaches are so divergent that a court's choice of one analysis over another has usually determined the outcome of an antitrust case. Traditionally, the rule of reason meant a decision for the defendant and the per se rule a victory for the plaintiff.39 Because the dividing line between per se and rule of reason analysis is so critical, a debate has raged for decades over the proper scope of each approach. The Harvard and Chicago Schools have been aligned on opposite sides of the per se/rule of reason divide.\n1. Ascendancy of the Per Se Rule\nCourts and agencies following the Harvard School found a per se approach attractive because it greatly enhanced the effectiveness of antitrust enforcement. Per se standards reduced the time and expense of antitrust cases, provided clear guidance to businesses, and effectively deterred anticompetitive conduct.40 The Supreme Court first used a per se approach early in the twentieth century in price-fixing cases, where the anticompetitive potential of the arrangements was so obvious that the Court could easily dispense with inquiries into market conditions or the defendants' justifications.41\nNo new per se classifications were established until the late 1950s, when the Harvard School first began to influence the Supreme Court. By the late 1960s, the Court had applied the per se rule to tying arrangements, 42 horizontal territorial or customer allocations, 43 and group boycotts. 44 The Harvard School \"fever reached its peak''45 in 1967 with United States v. Arnold, Schwinn & Co., 46 which extended the per se rule to nonprice vertical restrictions imposed by a supplier on its distributors.\nBy making so many restraints illegal on their face, the activist per se approach insured that American firms would avoid conduct that could harm consumers.47 The dominance of the per se rule, however, also caused significant problems. The per se approach was rigid and formalistic. By mechanically precluding certain conduct without any consideration of its economic effects, the rule deterred beneficial, as well as pernicious, business practices. For example, the nonprice vertical restraints condemned by the Supreme Court in Schwinn arguably promoted competition between retail brands.4a During the 1970s, Chicago School scholars began to criticize the per se rule for its failure to consider the potential beneficial effects of such restraints.4 9\n2. Increased Use of the Rule of Reason\nAfter the high watermark of per se analysis in the Schwinn case, the federal judiciary began to take notice of the Chicago School's criticism of the approach. The most dramatic retreat from per se analysis occurred in 1977 when, in Continental T. V., Inc. v. GTE Sylvania Inc.,50 the Supreme Court reversed its decision in Schwinn and decided that nonprice vertical restrictions should be judged by the rule of reason.\nAt issue in Sylvania was a contractual requirement that distributors sell Sylvania television sets only from authorized locations. 51 The Court recognized that, although this requirement limited competition among the distributors in the resale of Sylvania televisions (\"intrabrand competition\"), it also promoted competition with other brands of television sets (\"interbrand competition\") by inducing Sylvania distributors to make the investments necessary to provide more services to customers. 52 Drawing heavily upon the scholarship of Richard Posner, 53 the Court concluded that a rule of reason, rather than a per se, approach was appropriate in light of the potential economic benefits of the location clause imposed by Sylvania. 4\nSylvania established the foundation for modem antitrust's reliance on empirical economic evidence. After Sylvania, the federal courts had to confront a new paradigm: henceforth, they could not indulge in any presumptions of illegality under the antitrust laws that were not supported by economic facts. Other decisions favoring the rule of reason followed on the heels of Sylvania. Indeed, the history of antitrust analysis since Sylvania has been, with only a few exceptions, a steady erosion of the per se approach and an expanded use of the rule of reason.\nIn 1979 the Supreme Court indicated for the first time that it would be willing to apply a rule of reason analysis to a price-fixing arrangement. The Court held in Broadcast Music, Inc. v. CBS55 (\"BM/\") that a group of copyright holders did not commit a per se violation of the Sherman Act when they fixed a common price for the licensing of their musical compositions. 56 The Court pointed out that, instead of engaging in a rigid per se analysis, fact finders should initially consider whether a restraint \"appears to be one that would always or almost always tend to restrict competition and decrease output. ' 57 The Court concluded that the common license allowed the copyright holders to market their compositions more efficiently and therefore should be analyzed under the rule of reason. 58\nDuring the 1980s, the Supreme Court extended the rule of reason to other horizontal agreements with potential efficiency justifications. 59 The lower federal courts have followed the Supreme Court's lead in limiting applications of the per se rule and expanding the use of the rule of reason. Convinced by the Chicago School of the dangers of an absolute approach, federal judges have shown an increased willingness to consider defendants' justifications for practices formerly considered illegal on their face.6 °\n3. Deficiencies in Rule of Reason Analysis\nAs a result of the revolution in antitrust economics that occurred within the federal judiciary in the 1980s, the rule of reason is now the dominant form of analysis in Sherman Act cases. However, the Chicago School has been unable to construct a formulation of the rule of reason that allows for effective decision making, Most judicial discussion of the rule of reason standard has occurred in the Supreme Court and federal appellate courts, where the analysis has been confined to the issue of whether a rule of reason or per se standard should apply.61 Once the courts have decided that the rule of reason is appropriate, they have usually neglected to explain how it should be applied on remand. Most courts' definitions of the rule have not progressed beyond a requirement that the trier of fact consider all the circumstances surrounding a restraint before condemning it.62 The courts simply quote \"a long list of factors without any indication of priority or weight to be accorded each factor., 63\nThe current rule of reason standard provides little guidance to litigants, judges, or juries.64 Antitrust enforcement relies primarily on self-policing by the business community, but voluntary compliance is impossible when antitrust standards are unclear. These uncertain standards can lead both to under-deterrence and overdeterrence. Not only will firms miscalculate and risk anticompetitive conduct that they believe to be lawful; they may also avoid procompetitive behavior under the mistaken assumption that it can be attacked successfully. 65 Since the outcome of cases is so difficult to predict, both plaintiffs and defendants miscalculate. Plaintiffs bring unjustified suits that waste judicial and private resources, and defendants continue to engage in questionable competitive practices. Under the courts' current approach, the antitrust laws are capable of neither encouraging beneficial conduct nor deterring anticompetitive practices. In order to insure an effective antitrust policy, the federal courts must adopt a clearer method of analyzing restraints of trade under section 1 of the Sherman Act.", "role": "user" }, { "content": "Section 1 of the Sherman Act prohibits any \"conspiracy, in restraint of trade.\"\nFor most of the twentieth century\nfederal courts have assumed\nthey must choose between two opposite methods of analyzing restraints of trade\na \"per se rule\"\nor a \"rule of reason\"\nThe\napproaches are so divergent that a court's choice of one\nover another has usually determined the outcome of a\ncase\nBecause the dividing line\nis so critical, a debate has raged for decades over the proper scope of each approach. The Harvard and Chicago Schools\naligned on opposite sides\nthe rule of reason is now\ndominant\nHowever\nhas been unable to construct\neffective decision making\ncourts' definitions of the rule have not progressed beyond a requirement that the trier of fact consider all the circumstances\nThe\nrule\nprovides little guidance\nAntitrust enforcement relies primarily on self-policing\nbut voluntary compliance is impossible when\nstandards are unclear\nThese\nstandards\nlead both to under-deterrence and overdeterrence\nNot only will firms miscalculate and risk anticompetitive conduc\nthey may also avoid procompetitive behavior under the mistaken assumption that it can be attacked\nSince the outcome\nis so difficult to predict, both plaintiffs and defendants miscalculate\nUnder the courts'\napproach, the antitrust laws are capable of neither encouraging beneficial conduct nor deterring anticompetitive practices\nIn order to insure an effective antitrust policy, the federal courts must adopt a clearer method", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It’s the core of the modern debate about antitrust AND there are plenty of AFF arguments.", "role": "system" }, { "content": "Section 1 of the Sherman Act prohibits any \"conspiracy, in restraint of trade.\"\nFor most of the twentieth century\nfederal courts have assumed\nthey must choose between two opposite methods of analyzing restraints of trade\na \"per se rule\"\nor a \"rule of reason\"\nThe\napproaches are so divergent that a court's choice of one\nover another has usually determined the outcome of a\ncase\nBecause the dividing line\nis so critical, a debate has raged for decades over the proper scope of each approach. The Harvard and Chicago Schools\naligned on opposite sides\nthe rule of reason is now\ndominant\nHowever\nhas been unable to construct\neffective decision making\ncourts' definitions of the rule have not progressed beyond a requirement that the trier of fact consider all the circumstances\nThe\nrule\nprovides little guidance\nAntitrust enforcement relies primarily on self-policing\nbut voluntary compliance is impossible when\nstandards are unclear\nThese\nstandards\nlead both to under-deterrence and overdeterrence\nNot only will firms miscalculate and risk anticompetitive conduc\nthey may also avoid procompetitive behavior under the mistaken assumption that it can be attacked\nSince the outcome\nis so difficult to predict, both plaintiffs and defendants miscalculate\nUnder the courts'\napproach, the antitrust laws are capable of neither encouraging beneficial conduct nor deterring anticompetitive practices\nIn order to insure an effective antitrust policy, the federal courts must adopt a clearer method", "role": "user" }, { "content": "two opposite methods\n\"per se rule\"\n\"rule of reason\"\nso divergent\nchoice\none\nover another\ndetermined the outcome of a\ncase\ndividing line\nso critical\ndebate has raged for decades over the proper scope of each approach\nHarvard\nChicago Schools\nopposite sides\nrule of reason\ndominant\nunable\neffective decision making\nall the circumstances\nlittle guidance\nself-policing\nimpossible\nstandards are unclear\nunder-deterrence\noverdeterrence\nmiscalculate\navoid procompetitive\nmistaken assumption\nattacked\nmiscalculate\nneither\nbeneficial\ndeterring anticompetitive\nclearer method", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It’s the core of the modern debate about antitrust AND there are plenty of AFF arguments.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "Section 1 of the Sherman Act prohibits any \"conspiracy, in restraint of trade.\"\nFor most of the twentieth century\nfederal courts have assumed\nthey must choose between two opposite methods of analyzing restraints of trade\na \"per se rule\"\nor a \"rule of reason\"\nThe\napproaches are so divergent that a court's choice of one\nover another has usually determined the outcome of a\ncase\nBecause the dividing line\nis so critical, a debate has raged for decades over the proper scope of each approach. The Harvard and Chicago Schools\naligned on opposite sides\nthe rule of reason is now\ndominant\nHowever\nhas been unable to construct\neffective decision making\ncourts' definitions of the rule have not progressed beyond a requirement that the trier of fact consider all the circumstances\nThe\nrule\nprovides little guidance\nAntitrust enforcement relies primarily on self-policing\nbut voluntary compliance is impossible when\nstandards are unclear\nThese\nstandards\nlead both to under-deterrence and overdeterrence\nNot only will firms miscalculate and risk anticompetitive conduc\nthey may also avoid procompetitive behavior under the mistaken assumption that it can be attacked\nSince the outcome\nis so difficult to predict, both plaintiffs and defendants miscalculate\nUnder the courts'\napproach, the antitrust laws are capable of neither encouraging beneficial conduct nor deterring anticompetitive practices\nIn order to insure an effective antitrust policy, the federal courts must adopt a clearer method", "role": "user" }, { "content": "per se rule\nor\nrule of reason\nare so divergent that\nchoice of one\nusually determined the\ncase\nBecause the dividing line\nis so critical, a debate\nraged for decades over the proper scope of each\nHarvard and Chicago\non opposite sides\nrule of reason is now\ndominant\nHowever\nprovides little guidance\nself-policing\nis impossible\nlead\nto\noverdeterrence\nfirms miscalculate\ncourts must adopt a clearer method", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The top says ‘unfair business practices’ is a broad term---it’s obviously referring to the word ‘unfair,’ NOT to business practices.", "role": "system" }, { "content": "In permitting the restraining of all \"unfair\" business practices, section 3369 undeniably establishes only a wide standard to guide courts of equity; as noted above, given the creative nature of the scheming mind, the Legislature evidently concluded that a less inclusive standard would not be adequate. In the instant case, however, we need not undertake the task of determining the \"fairness\" of defendant's alleged conduct in light of contemporary standards, because insofar as defendant's alleged practice involves the repeated violation of specific venue statutes, the practice is enjoinable under section 3369 as an \"unlawful ... business practice,\" totally apart from its inherent \"fairness.\" As originally enacted in 1933, section 3369 defined \"unfair competition\" only in terms of \"unfair or fraudulent business practice[s]\"; most of the reported cases, dealing in deceptive conduct, arose under the statute as so worded. In 1963, however, the Legislature amended section 3369 to add the word \"unlawful\" to the types of wrongful business conduct that could be enjoined. Although the legislative history of this amendment is not particularly instructive, fn. 13 nevertheless, as one [7 Cal.3d 113] commentator has noted \"it is difficult to see any other purpose than to extend the meaning of unfair competition to anything that can properly be called a business practice and that at the same time is forbidden by law.\" (Note, Unlawful Agricultural Working Conditions as Nuisance or Unfair Competition (1968) 19 Hastings L.J. 398, 408-409.)", "role": "user" }, { "content": "In permitting the restraining of all \"unfair\" business practices, section 3369 undeniably establishes only a wide standard to guide courts of equity\ngiven the creative\nscheming mind, the Legislature evidently concluded that a less inclusive standard would not be adequate", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The top says ‘unfair business practices’ is a broad term---it’s obviously referring to the word ‘unfair,’ NOT to business practices.\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "In permitting the restraining of all \"unfair\" business practices, section 3369 undeniably establishes only a wide standard to guide courts of equity\ngiven the creative\nscheming mind, the Legislature evidently concluded that a less inclusive standard would not be adequate", "role": "user" }, { "content": "In\nall \"unfair\" business practices, section 3369\nestablishes\na wide standard to guide courts\ngiven the creative\nscheming mind\na less inclusive standard would not be adequate", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The bottom says courts didn’t decide the standalone meaning of ‘business practice’ in this case, because the defendants didn’t contest it.", "role": "system" }, { "content": "As discussed above, under the allegations of plaintiffs' first amended complaint, defendant's practice consists of repeated violations of specific statutory provisions of both the Code of Civil Procedure and the Civil Code; such a pattern of behavior clearly constitutes “unlawful” conduct, and if an enterprise pursues such a course of conduct as a “business practice,” we conclude that the activity may be enjoined under section 3369. Defendant agency does not, and could not, claim that under the allegations of the complaint the challenged conduct is not a “business practice.” The complaint specifically alleges that the agency undertakes its alleged misfiling “as a pattern and practice” and obviously such practice, if in fact conducted, directly relates to the defendant collection agency's conduct of its “business.” We thus conclude that plaintiffs' allegations sufficiently state a cause of action for injunctive relief under Civil Code section 3369, and that the trial court erred in sustaining defendant's demurrer to plaintiffs' third cause of action. *114", "role": "user" }, { "content": "Defendant\ndoes not\nclaim that under the allegations of the complaint the challenged conduct is not a “business practice.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The bottom says courts didn’t decide the standalone meaning of ‘business practice’ in this case, because the defendants didn’t contest it.", "role": "system" }, { "content": "Defendant\ndoes not\nclaim that under the allegations of the complaint the challenged conduct is not a “business practice.”", "role": "user" }, { "content": "does not\nclaim that under the allegations of the complaint the challenged conduct is not a “business practice.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The bottom says courts didn’t decide the standalone meaning of ‘business practice’ in this case, because the defendants didn’t contest it.\n\nHighlight Ratio: 0.8", "role": "system" }, { "content": "Defendant\ndoes not\nclaim that under the allegations of the complaint the challenged conduct is not a “business practice.”", "role": "user" }, { "content": "Defendant\ndoes not\nclaim\nunder the allegations of the complaint the\nconduct is not a “business practice.”", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: BUT---their card is interpreting the California Unfair Practices Act", "role": "system" }, { "content": "[1] Appellants claim they have stated a cause of action for \"unfair competition\" as defined in the California Unfair Practices Act (UPA) set [53 Cal. App. 3d 457] forth in California Business and Professions Code section 17000 et seq. fn. 2 and California Civil Code section 3369. fn. 3 In general they argue that the provisions of the sections are so broad that they include almost any form of unfair competition, and what constitutes an unfair or fraudulent business practice under any given set of circumstances is a question of fact to be determined at trial and not by a ruling on a demurrer. They rely primarily on two cases, Paramount Gen. Hosp. Co. v. National Medical Enterprises, Inc., 42 Cal. App. 3d 496 [117 Cal. Rptr. 42], and People ex rel. Mosk v. National Research Co. of Cal., 201 Cal. App. 2d 765 [20 Cal. Rptr. 516]. While these cases do emphasize that the statutes codifying the Unfair Practices Act are to be liberally construed, recognizing that \"unfair or fraudulent business practices may run the gamut of human ingenuity and chicanery,\" (People ex rel. Mosk v. National Research Co. of Cal., supra, at p. 772) the general principles set forth therein do not aid appellants. The only issue here is whether it is unfair competition for a manufacturer to create a distributorship and require retail purchasers to purchase from distributors rather than directly from the manufacturer. fn. 4 The cited cases do not determine this issue.", "role": "user" }, { "content": "a cause of action for \"unfair competition\" as defined in the California Unfair Practices Act\nUPA\nset\nforth in\nsection 17000\nand\nCivil Code section 3369", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: BUT---their card is interpreting the California Unfair Practices Act\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "a cause of action for \"unfair competition\" as defined in the California Unfair Practices Act\nUPA\nset\nforth in\nsection 17000\nand\nCivil Code section 3369", "role": "user" }, { "content": "action for \"unfair competition\" as defined in the California\nUPA\nset\nforth in\nsection 17000\nand\n3369", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The two are NOT the same. This argument only proves courts are moving away from per se rules---which is our whole argument about link uniqueness!", "role": "system" }, { "content": "A. The Per Se/Rule of Reason Distinction\n“The Court uses per se rules when the costs of judicial inquiry necessary to separate the beneficial from the detrimental instances of a practice exceed the gain from saving the relatively rare beneficial instances.”[224] As the Court has elucidated, conduct is deemed per se illegal when “the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output.”[225] As Easterbrook points out, “[t]his is just another way of saying that per se rules should be used when they minimize the sum of the welfare loss from monopolization, the loss from false positives, and the costs of administering the rule.”[226]\nThe adoption of a presumption of illegality under the per se rule is a clear manifestation of the error-cost approach to antitrust. As the Court noted in Jefferson Parish:\n[T]he rationale for per se rules in part is to avoid a burdensome inquiry into actual market conditions in situations where the likelihood of anticompetitive conduct is so great as to render unjustified the costs of determining whether the particular case at bar involves anticompetitive conduct.[227]\nImportantly, the decision to assess conduct under the per se rule is not distinct from the rule of reason analysis. Rather, it is the preliminary stage of any rule of reason analysis: the characterization and classification of conduct. As Professor Meese explains:\nAs applied in the courts, then, Standard Oil‘s Rule of Reason manifests itself in a two-step analysis. The first step—per se analysis—requires characterization and then classification of a restraint. Here courts inquire into the nature of the agreement and decide whether it is unlawful per se or instead subject to further scrutiny. If the restraint survives this step, that is, if it is not unreasonable per se, courts proceed to the second step, namely, a fact-intensive analysis of the actual effects of the restraint. While courts refer to this second step as a Rule of Reason analysis, both steps of the process attempt to answer the question put by Standard Oil, viz., is a restraint “unreasonably restrictive of competitive conditions.”[228]\nAs noted above, the error-cost framework counsels in favor of such an approach because it is mindful not only of the substantive accuracy of results, but also of the administrative costs of judicial decision-making and the deterrent effects of precedential judicial holdings. Animating the adoption of the per se approach, then, is the assumption that the probability times the cost of an erroneous determination (in terms of both any specific case, as well as its deterrent effect on subsequent economic activity) is smaller than the costs of repeated adjudication of the issue.[229]\nMuch like the rules vs. standards tradeoff, the application of the per se rule in lieu of a full rule of reason analysis countenances some degree of substantive error if the administrative cost savings are sufficiently high.\nPer se rules thus require the Court to make broad generalizations about the social utility of particular commercial practices. The probability that anti-competitive consequences will result from a practice and the severity of those consequences must be balanced against its procompetitive consequences. Cases that do not fit the generalization may arise but a per se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them.[230]\nApplication of the per se standard is thus limited to circumstances where courts have experience with the conduct at issue, and where they can “predict with confidence that [the conduct] would be invalidated in all or almost all instances under the rule of reason.”[231]\nOne important implication of this is that the per se rule is rarely, if ever, appropriate in the face of novel conduct or in a nascent industry. “[I]t is only after considerable experience with certain business relationships that courts classify them as per se violations.”[232] Indeed, per se condemnation is appropriate only when a practice lacks any plausible procompetitive rationale,[233] which will rarely be the case where there is no existing knowledge or experience to undermine the plausibility of procompetitive explanations of novel conduct.\nIf there is no long track record of judicial experience establishing that a practice always or almost always lessens competition, then the practice should be subject to analysis under the rule of reason. But, by the same token, as courts learn more about an industry and challenged practices, they can and should amend their approach to reflect updated learning. Thus, the courts’ approach “may vary over time, if rule-of-reason analyses in case after case reach identical conclusions.”[234]\nIn this regard, the concern for the risk of error costs in the face of innovative conduct is ameliorated, because a finding that a novel practice (or an old practice in a new context) is anticompetitive may be made only after a rigorous analysis of all the facts and circumstances—that is, with greater information specific to the untested conduct at hand. Such a rule sensibly avoids unintentional condemnation of economically valuable activity where the full effects of that activity are simply unknown to the courts.[235]\nThe “inhospitality” tradition of antitrust, by contrast, saw an “extreme hostility toward any contractual restraint on the freedom of individuals or firms to engage in head-to-head rivalry.”[236] It also included an increased use of per se rules and suspicion of unfamiliar economic activity. As Professor Meese has masterfully detailed, the eventual (if incomplete. . .) shift away from the inhospitality tradition entailed the judicial acknowledgement of more advanced industrial organization economics—most notably, Transaction Costs Economics.[237] As new modes of economic organization came to pervade in the economy—and, more importantly, as new understandings of such conduct came to pervade in the academy—courts began to realize that per se condemnation was inappropriate for many “nonstandard” forms of conduct, even when they departed from the traditional “perfect competition” model.[238]\nIn general, the Transaction Cost Economics revolution has, ironically, increased the overall lack of certainty of the antitrust enterprise. To the extent that the pre-1970s inhospitality tradition could be defended by the extent of economic learning at the time, that was no longer the case after Williamson. Better understanding of the possibility of procompetitive explanations for previously condemned conduct helps to reduce uncertainty over those specific forms of conduct or situations, but it simultaneously decreases the certainty with which decisionmakers can reasonably condemn novel conduct they don’t understand.\nAs noted above, this applies most starkly in the context of the assessment of the per se rule.[239] Once it becomes clear that the simplifying presumptions of the per se rule were not more likely than not to produce accurate outcomes, the use of the presumption must decline not only in those specific cases, but in all cases of novel conduct or novel circumstances, absent specific learning to the contrary.\nFundamentally, as antitrust jurisprudence properly evolves, greater substantive economic learning can, and does, lead to changes in antitrust procedure. But the overarching consequence of more complicated, nuanced economic analysis is invariably a move toward greater complexity (and thus higher costs) in antitrust adjudication.\nIn the per se context, for example, the Court eventually introduced an intermediate process (quick look review) in an attempt to mitigate the increased costs of the overall move away from per se illegality necessitated by better economic understanding.[240] But in practice the quick look process most likely simply formalized the inevitable reality that anything but an automatic application of a per se rule entails effectively a Rule of Reason analysis.\nThus, in California Dental Association v. Federal Trade Commission the Court made it clear that quick look is an appropriate means of by-passing the rule of reason when “an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets.” But that means that whenever underlying conduct presents novel or nuanced economic circumstances for which past presumptions and burden-shifting rules may not be appropriate—which is to say, the vast majority of the time conduct ends up being litigated—an essentially thorough Rule of Reason analysis will be required:\nAlthough we have said that a challenge to a “naked restraint on price and output” need not be supported by “a detailed market analysis” in order to “requir[e] some competitive justification,” it does not follow that every case attacking a less obviously anticompetitive restraint (like this one) is a candidate for plenary market examination. The truth is that our categories of analysis of anticompetitive effect are less fixed than terms like “per se,” “quick look,” and “rule of reason” tend to make them appear. We have recognized, for example, that “there is often no bright line separating per se from Rule of Reason analysis,” since “considerable inquiry into market conditions” may be required before the application of any so-called “per se” condemnation is justified.[241]", "role": "user" }, { "content": "conduct is deemed per se illegal when “the practice facially appears to be one that would always or almost always\nrestrict competition\nthe decision to assess conduct under the per se rule\nis the preliminary stage of any rule of reason analysis: the characterization and classification of conduct\nStandard Oil‘s Rule of Reason manifests\nin a two-step analysis. The first step—per se analysis—requires characterization and\nclassification\nHere courts inquire into the nature of the agreement and decide whether it is unlawful per se or instead subject to further scrutiny. If the restraint survives this step\nthat is, if it is not unreasonable per se, courts proceed to the second step\na fact-intensive analysis of\nactual effects\nWhile courts refer to this second step as a Rule of Reason\nboth steps\nattempt to answer the question put by Standard Oil, viz., is a restraint “unreasonably restrictive of competitive conditions.”\nIn the per se context,\nthe Court eventually introduced an intermediate process\nquick look review\nin an attempt to\nmove away from per se illegality\nBut in practice the quick look\nsimply formalized the inevitable reality that anything but\nautomatic application of a per se rule entails effectively a Rule of Reason\nThus\nCal\nDental\nmade it clear that\nthe vast majority of the time\nan essentially thorough Rule of Reason\nwill be required:\nThe truth is that our categories of analysis of anticompetitive effect are less fixed than terms like “per se,” “quick look,” and “rule of reason” tend to make them appear. We have recognized, for example, that “there is often no bright line separating per se from Rule of Reason analysis,” since “considerable inquiry into market conditions” may be required before the application of any so-called “per se” condemnation is justified", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The two are NOT the same. This argument only proves courts are moving away from per se rules---which is our whole argument about link uniqueness!", "role": "system" }, { "content": "conduct is deemed per se illegal when “the practice facially appears to be one that would always or almost always\nrestrict competition\nthe decision to assess conduct under the per se rule\nis the preliminary stage of any rule of reason analysis: the characterization and classification of conduct\nStandard Oil‘s Rule of Reason manifests\nin a two-step analysis. The first step—per se analysis—requires characterization and\nclassification\nHere courts inquire into the nature of the agreement and decide whether it is unlawful per se or instead subject to further scrutiny. If the restraint survives this step\nthat is, if it is not unreasonable per se, courts proceed to the second step\na fact-intensive analysis of\nactual effects\nWhile courts refer to this second step as a Rule of Reason\nboth steps\nattempt to answer the question put by Standard Oil, viz., is a restraint “unreasonably restrictive of competitive conditions.”\nIn the per se context,\nthe Court eventually introduced an intermediate process\nquick look review\nin an attempt to\nmove away from per se illegality\nBut in practice the quick look\nsimply formalized the inevitable reality that anything but\nautomatic application of a per se rule entails effectively a Rule of Reason\nThus\nCal\nDental\nmade it clear that\nthe vast majority of the time\nan essentially thorough Rule of Reason\nwill be required:\nThe truth is that our categories of analysis of anticompetitive effect are less fixed than terms like “per se,” “quick look,” and “rule of reason” tend to make them appear. We have recognized, for example, that “there is often no bright line separating per se from Rule of Reason analysis,” since “considerable inquiry into market conditions” may be required before the application of any so-called “per se” condemnation is justified", "role": "user" }, { "content": "per se illegal\npractice facially\nalways or almost always\nrestrict competition\ndecision\nper se\nis\npreliminary\nrule of reason\ncharacterization and classification of conduct\nRule of Reason\ntwo-step analysis\nper se\ncharacterization\nclassification\nnature\nagreement\nwhether it is unlawful per se\ninstead\nfurther scrutiny\nsurvives this step\nnot unreasonable per se\nproceed\nsecond\nfact-intensive analysis of\nactual effects\nrefer\nboth\nper se\nintermediate\nquick look\naway\nper se illegality\npractice\nquick look\nformalized\ninevitable reality\nanything but\nautomatic application of a per se rule entails effectively a Rule of Reason\nThus\nCal\nDental\nvast majority of the time\nessentially\nRule of Reason\n:", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The two are NOT the same. This argument only proves courts are moving away from per se rules---which is our whole argument about link uniqueness!\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "conduct is deemed per se illegal when “the practice facially appears to be one that would always or almost always\nrestrict competition\nthe decision to assess conduct under the per se rule\nis the preliminary stage of any rule of reason analysis: the characterization and classification of conduct\nStandard Oil‘s Rule of Reason manifests\nin a two-step analysis. The first step—per se analysis—requires characterization and\nclassification\nHere courts inquire into the nature of the agreement and decide whether it is unlawful per se or instead subject to further scrutiny. If the restraint survives this step\nthat is, if it is not unreasonable per se, courts proceed to the second step\na fact-intensive analysis of\nactual effects\nWhile courts refer to this second step as a Rule of Reason\nboth steps\nattempt to answer the question put by Standard Oil, viz., is a restraint “unreasonably restrictive of competitive conditions.”\nIn the per se context,\nthe Court eventually introduced an intermediate process\nquick look review\nin an attempt to\nmove away from per se illegality\nBut in practice the quick look\nsimply formalized the inevitable reality that anything but\nautomatic application of a per se rule entails effectively a Rule of Reason\nThus\nCal\nDental\nmade it clear that\nthe vast majority of the time\nan essentially thorough Rule of Reason\nwill be required:\nThe truth is that our categories of analysis of anticompetitive effect are less fixed than terms like “per se,” “quick look,” and “rule of reason” tend to make them appear. We have recognized, for example, that “there is often no bright line separating per se from Rule of Reason analysis,” since “considerable inquiry into market conditions” may be required before the application of any so-called “per se” condemnation is justified", "role": "user" }, { "content": "conduct is\nper se illegal when “the practice facially\nwould\nalmost always\nrestrict competition\nthe decision to assess conduct\nper se\nis the preliminary stage of\nrule of reason analysis: the characterization and classification\nThe first step\nper se\nrequires\nclassification\ncourts inquire\nthe nature of the agreement\nIf\nit is not unreasonable per se, courts proceed to\na fact-intensive analysis\nquick look\nin practice\nsimply formalized\nthat anything but\na per se rule entails\na Rule of Reason\nThus\nCal\nDental\n:\ncategories\nare less fixed than terms\nmake them appear", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The distinction’s categorical", "role": "system" }, { "content": "To ensure the effectiveness of Section 5, the FTC must commit to simple structural remedies. In cases in which a specific anticompetitive practice is the principal barrier to a competitive market, a conduct remedy—a prohibition on this act—may be sufficient to restore competition. In cases in which the structure of the market is at issue, only a structural remedy is likely to be sufficient. A conduct remedy, in these matters, would typically involve a combination of prohibitions, requirements, and ongoing oversight by the FTC. Conduct remedies are likely to be incomplete and susceptible to evasion in spirit, if not in letter.230 In contrast, a structural remedy allows for a one-time fix that, if properly implemented, addresses the problem and removes the need for intrusive regulatory oversight in the future.231\nThe FTC should establish a strong presumption in favor of structural solutions in merger and other matters implicating market structure. In challenging anticompetitive mergers, the FTC should seek to stop mergers outright instead of modify them through divestitures. Divestitures have often failed to preserve competition even from a consumer welfare perspective.232 Some recent FTC-mandated divestitures in mergers have failed in spectacular fashion.233 Furthermore, these divestitures do nothing to stop the concentration of private economic and political power. Companies are permitted to grow in size through consolidation, so long as they sell assets in markets in which there is head-to-head competition. In dominant firm cases that seek to address the underlying market structure, the FTC should pursue restructuring remedies that, for example, divide the company into multiple competing entities or separate related lines of business into separate firms. ", "role": "user" }, { "content": "In cases in which a specific anticompetitive practice is the principal barrier to a competitive market, a conduct remedy—a prohibition on this act—may be sufficient to restore competition. In cases in which the structure of the market is at issue,\na structural remedy is likely to be sufficient\nthe FTC\npursue restructuring remedies that\ndivide the company\nor separate related lines of business into separate firms", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The distinction’s categorical", "role": "system" }, { "content": "In cases in which a specific anticompetitive practice is the principal barrier to a competitive market, a conduct remedy—a prohibition on this act—may be sufficient to restore competition. In cases in which the structure of the market is at issue,\na structural remedy is likely to be sufficient\nthe FTC\npursue restructuring remedies that\ndivide the company\nor separate related lines of business into separate firms", "role": "user" }, { "content": "specific anticompetitive practice\nprincipal barrier\ncompetitive market\nconduct remedy\nprohibition\nthis act\nsufficient to restore competition\nstructure of the market\nstructural remedy\nrestructuring\ndivide\nseparate\nseparate firms", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The distinction’s categorical\n\nHighlight Ratio: 0.6", "role": "system" }, { "content": "In cases in which a specific anticompetitive practice is the principal barrier to a competitive market, a conduct remedy—a prohibition on this act—may be sufficient to restore competition. In cases in which the structure of the market is at issue,\na structural remedy is likely to be sufficient\nthe FTC\npursue restructuring remedies that\ndivide the company\nor separate related lines of business into separate firms", "role": "user" }, { "content": "cases in which a\nanticompetitive practice is the\nbarrier to a competitive market, a conduct remedy—a prohibition\nmay be sufficient\ncases in which the structure of the market is at issue\na structural remedy\ndivide the company\nor separate\nlines of business", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Practices are ongoing conduct---mergers violate---the merger itself is a one-off event, even if they’re evaluated because of their effects on ongoing practices.", "role": "system" }, { "content": "The statute defines \"unfair competition\" to mean, as relevant here, \"unlawful, unfair or fraudulent business practice . . . .\" ( Bus. & Prof. Code, § 17200, italics added.) In so doing it effectively requires what the court variously described in the leading case of Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 [101 Cal.Rptr. 745, 496 P.2d 817], as \"a 'pattern' . . . of conduct\" ( id. at p. 108), \"ongoing . . . conduct\" ( id. at p. 111), \"a pattern of behavior\" ( id. at p. 113), and, \"a course of conduct\" (ibid.).\nWhat the Attorney General challenges in this action is the Texaco-Getty merger. Under the Barquis court's construction of the statute, however, the merger itself cannot be characterized as \"a 'pattern' . . . of conduct,\" \"ongoing conduct,\" \"a pattern of behavior,\" \"a course of conduct,\" or anything relevantly similar: it is rather a single act. That the complaint, under [****156] the Attorney General's reading, alleges that Texaco engaged in certain unlawful, unfair, or fraudulent business practices in the past and may engage in other such practices in the future is simply not enough: the complaint attacks not those past or future practices, but only the merger.", "role": "user" }, { "content": "The statute defines \"unfair competition\" to mean, as relevant here, \"unlawful, unfair or fraudulent business practice\nitalics added\nIn so doing it effectively requires what the court variously described in the leading case of Barquis\nas \"a 'pattern' . . . of conduct\nongoing . . . conduct\na pattern of behavior\nand, \"a course of conduct\nWhat the Attorney General challenges in this action is the\nmerger\nUnder the Barquis court's construction\nhowever, the merger itself cannot be characterized as \"a 'pattern' . . . of conduct,\" \"ongoing conduct,\" \"a pattern of behavior,\" \"a course of conduct,\" or anything relevantly similar: it is rather a single act. That the complaint, under\nthe Attorney General's reading, alleges that Texaco engaged in certain unlawful, unfair, or fraudulent business practices in the past and may engage in other such practices in the future is simply not enough: the complaint attacks not those past or future practices, but only the merger", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Practices are ongoing conduct---mergers violate---the merger itself is a one-off event, even if they’re evaluated because of their effects on ongoing practices.", "role": "system" }, { "content": "The statute defines \"unfair competition\" to mean, as relevant here, \"unlawful, unfair or fraudulent business practice\nitalics added\nIn so doing it effectively requires what the court variously described in the leading case of Barquis\nas \"a 'pattern' . . . of conduct\nongoing . . . conduct\na pattern of behavior\nand, \"a course of conduct\nWhat the Attorney General challenges in this action is the\nmerger\nUnder the Barquis court's construction\nhowever, the merger itself cannot be characterized as \"a 'pattern' . . . of conduct,\" \"ongoing conduct,\" \"a pattern of behavior,\" \"a course of conduct,\" or anything relevantly similar: it is rather a single act. That the complaint, under\nthe Attorney General's reading, alleges that Texaco engaged in certain unlawful, unfair, or fraudulent business practices in the past and may engage in other such practices in the future is simply not enough: the complaint attacks not those past or future practices, but only the merger", "role": "user" }, { "content": "practice\nadded\nrequires\nBarquis\n'pattern' . . . of conduct\nongoing . . . conduct\npattern\ncourse\nA\nG\nthis action\nmerger\nmerger itself cannot\na 'pattern' . . . of conduct,\" \"ongoing conduct,\" \"a pattern of behavior,\" \"a course of conduct,\" or anything relevantly similar\nsingle act\nengaged\nbusiness practices\npast\nmay\nfuture\nnot enough\nnot those\npractices\nonly the merger", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Practices are ongoing conduct---mergers violate---the merger itself is a one-off event, even if they’re evaluated because of their effects on ongoing practices.\n\nHighlight Ratio: 0.5", "role": "system" }, { "content": "The statute defines \"unfair competition\" to mean, as relevant here, \"unlawful, unfair or fraudulent business practice\nitalics added\nIn so doing it effectively requires what the court variously described in the leading case of Barquis\nas \"a 'pattern' . . . of conduct\nongoing . . . conduct\na pattern of behavior\nand, \"a course of conduct\nWhat the Attorney General challenges in this action is the\nmerger\nUnder the Barquis court's construction\nhowever, the merger itself cannot be characterized as \"a 'pattern' . . . of conduct,\" \"ongoing conduct,\" \"a pattern of behavior,\" \"a course of conduct,\" or anything relevantly similar: it is rather a single act. That the complaint, under\nthe Attorney General's reading, alleges that Texaco engaged in certain unlawful, unfair, or fraudulent business practices in the past and may engage in other such practices in the future is simply not enough: the complaint attacks not those past or future practices, but only the merger", "role": "user" }, { "content": "The statute defines \"unfair competition\" to mean\nbusiness practice\nIn so doing it\nrequires\na 'pattern' . . . of\nongoing . . . conduct\nthe A\nG\nchallenges in this action\nthe\nmerger\nhowever, the merger itself cannot be characterized as \"a 'pattern'\nongoing\na course\nor anything relevantly similar: it is rather a single act. That\nTexaco engaged in\nbusiness practices in the past and may\nin the future is\nnot enough: the complaint attacks not those\npractices, but only the merger", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Prefer our ev. It’s from the ABA Antitrust Section’s Committee on Exemptions and Immunities, which literally wrote an authoritative text called “Handbook on the Scope of Antitrust!” It’s the T evidence gold standard.", "role": "system" }, { "content": "I. Current State of Exemptions and Immunities Committee\nEven though we are a relatively small Committee, we address important policy issues that might not otherwise be addressed by the Antitrust Section. While we often work on issues alongside the Legislation Committee, our scope reaches judicial, as well as statutory exemptions. Our Committee is the one place within the Section that focuses on the concerns that may lead Congress or the courts to carve out certain conduct from traditional antitrust proscriptions.\nIn the 2017-2018 program year, we drafted and submitted four in-depth Section Comments at the request of the Council; produced six committee programs; published three newsletters; completed one ABA Handbook and are well underway on a second one; cosponsored two Spring Meeting Programs; co-sponsored one podcast; and participated in a Women in Leadership videoconference.\nIn the 2018-19 program year, we will chair an approved Spring Meeting Program; are cosponsoring a second approved Program; and we have been asked to revisit one of the Comments that we produced in the previous year. We are also working on committee programs, podcasts, and publications.\nPerhaps most importantly, we are proud of our diversity achievements. In 2017-18, one of the E&I Co-Chairs was a woman for the first time, and our Young Lawyer Representative was LGBTQ for the first time. This year, we continue with a woman Co-Chair, a woman YLR, and we have added the first Vice Chair from the state of South Carolina on any Section Committee.\nA. Scope of Charter: What is Role of Committee?\nThe Exemptions and Immunities Committee is chartered to address judicially created immunities from the antitrust laws, such as the Noerr-Pennington doctrine, state action, implied immunities, and filed rate doctrines, as well as statutory exemptions, including, among others, the McCarran-Ferguson and Capper-Volstead Acts. The Committee also addresses international issues, such as the Foreign Trade Antitrust Improvements Act (“FTAIA”), and other doctrines, such as antitrust preemption and primary jurisdiction, that affect the application and extent of the antitrust laws. The Committee strives to be the first and best resource for information on the fundamental question of defining the scope of the antitrust laws.\nHowever, another key function of this Committee is an administrative role, rather than as a programming committee. This Committee serves as the de facto institutional memory before legislators and agencies for the Section's position on exemptions and immunities. The Section needs to have one place to look for what it has said in the past on exemption proposals, as well as commentary on DOJ or FTC attempts to narrow or expand exemptions. We believe this Committee has already served in that role and should serve in that role in the future. We want to improve on this function for the Section. We should have a Vice Chair designated as the point person to track prior comments and catalog the specific issues that have been raised. At the same time, we could develop a more standardized response. A related project would be a retrospective study of exemptions and their impact. We would join with International Task Force in its study of the impact of exemptions in other countries.\nIn short, the Committee should standardize the analysis of exemption proposals and reach out on the international front to catalog the differences in exemptions in different areas of the world.\nB. Description of Reflective Evaluation of Membership Levels, Diversity, and Growth\nThe Committee currently has nearly 300 members, a 20% increase in membership in the last two years. Our members include government antitrust officials, private practitioners, corporate counsel and academics, and some practitioners based outside the United States. This variety of members ensures diverse views on the scope, applicability and appropriateness of antitrust exemptions and immunities.\nAlthough other committees are larger, our Committee tends to include lawyers who specialize in specific antitrust issues. As most members of the Committee are members of other Section committees, the Committee may not be the primary committee that draws members into the Section. We believe that tracking the key issues surrounding the scope of the antitrust laws draws members of broader committees to also join E&I, and thus must continue to be a high priority for the Section.", "role": "user" }, { "content": "we address important policy issues\nby\nAntitrust\nThe Committee\nhas\n300 members\nOur members include government antitrust officials, private practitioners, corporate counsel and academics\nThis\nensures diverse views on the scope\nof antitrust\nWe believe that tracking the\nscope of the antitrust laws\nmust continue to be a high priority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Prefer our ev. It’s from the ABA Antitrust Section’s Committee on Exemptions and Immunities, which literally wrote an authoritative text called “Handbook on the Scope of Antitrust!” It’s the T evidence gold standard.", "role": "system" }, { "content": "we address important policy issues\nby\nAntitrust\nThe Committee\nhas\n300 members\nOur members include government antitrust officials, private practitioners, corporate counsel and academics\nThis\nensures diverse views on the scope\nof antitrust\nWe believe that tracking the\nscope of the antitrust laws\nmust continue to be a high priority", "role": "user" }, { "content": "important policy issues\nAntitrust\n300 members\ngovernment antitrust officials\npractitioners\ncounsel\nacademics\ndiverse\nscope\nantitrust\ntracking\nscope of the antitrust laws\ncontinue\nhigh priority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Prefer our ev. It’s from the ABA Antitrust Section’s Committee on Exemptions and Immunities, which literally wrote an authoritative text called “Handbook on the Scope of Antitrust!” It’s the T evidence gold standard.\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "we address important policy issues\nby\nAntitrust\nThe Committee\nhas\n300 members\nOur members include government antitrust officials, private practitioners, corporate counsel and academics\nThis\nensures diverse views on the scope\nof antitrust\nWe believe that tracking the\nscope of the antitrust laws\nmust continue to be a high priority", "role": "user" }, { "content": "Committee\ninclude government antitrust officials\ncounsel and academics\nensures diverse views on the scope\nof antitrust\na high priority", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: They’re premier in the field", "role": "system" }, { "content": "Antitrust norms, especially the objection to collusive conduct, are consistently endorsed and upheld by enforcers and courts, regardless of political affiliation.12 These norms have spread throughout the world, particularly since the 1990s, with the aid of a growing global antitrust community. Annual attendance at the spring meeting of the American Bar Association’s Section of Antitrust Law— the premier gathering in the field— now exceeds 3,000, a threefold increase over the low ebb in the late 1980s. Several new academic journals dedicated to antitrust law, economics, and policy were launched in the last decade.", "role": "user" }, { "content": "Annual attendance at the\nthe American Bar Association’s Section of Antitrust Law— the premier gathering in the field— now exceeds 3,000", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It's exclusive AND based on the only work to have comprehensively assessed the ‘scope of antitrust laws.’", "role": "system" }, { "content": "The Supreme Court’s many emphatic generalizations over several decades suggest that antitrust applies very broadly. “[A]ntitrust,” the Court has said, “[is] a fundamental national economic policy.”1 It is no less than a “charter of freedom”2 and our very “Magna Carta of free enterprise.”3 When describing the scope of antitrust law in the abstract, therefore, courts commonly speak in very broad terms. Because “Congress intended to strike as broadly as it could” in enacting the antitrust laws,4 “[l]anguage more comprehensive” than those statutes contain “is difficult to conceive.”5 The breadth accorded the antitrust laws by the courts “reflects the felt indispensable role of antitrust policy in the maintenance of a free economy... .”6\nOne might then have thought that the scope of antitrust would be a simple affair. If the law applies so broadly, then cases raising serious issues of applicability would be rare. But in fact it is not simple at all. The scope of antitrust is governed by dozens of federal statutes and by a variety of elaborate caselaw doctrines. Numerous cases every year raise difficult scope issues, and many hundreds or thousands of reported opinions now address them, often in meticulous, complex detail. The scope of antitrust has morphed into a large, distinct, and complex body of law.\nNo prior work appears to have considered the entire law of the scope of antitrust as one body, in any comprehensive and integrated way. Integrated treatment poses certain benefits. A primary goal of this book is to aid practitioners, because several of the scope doctrines have become complex and uncertain, and their interrelationships can be especially challenging.\nIntegrated treatment might also be useful for public policy purposes, given that scope issues have generated frequent reform efforts and debate.7 While this Handbook-takes no position on normative matters, a problem in those debates has been their oftentimes great complexity. As one example, commentators have criticized results in which different doctrines are applied in different ways to similar facts,8 and the Supreme Court, too, has occasionally indicated that scope doctrines applicable to different circumstances should nevertheless be theoretically consistent.9 Addressing questions of that nature, however, has been difficult simply because doctrinal scope issues are ordinarily considered in isolation, a fact that in itself reflects the complexity and scale of the issues. In those rare cases in which conflicts among scope doctrines are considered, courts have felt unable or unauthorized to resolve them.10\nA. Why Are There Limits on the Scope of Antitrust?\nScope issues are as old as antitrust itself.11 They have also always been controversial. On the one hand, limits on the scope of antitrust are said to be disfavored. Traditionally, the courts observed a strong presumption against judge-made limits, in all but a few special situations,12 and there has been something of a consensus among commentators that courts should fashion limits with caution.13 Explicit statutory limits are disfavored as well. The courts read them narrowly,14 the enforcement agencies have long opposed them,15 and they have been criticized by each of the many blue-ribbon antitrust review commissions established by the President and Congress over the past several decades.16 The ABA Section of Antitrust Law has maintained a consistent opposition to them for many years.17 Other nations have widely come to hold similar views, having repealed large numbers of antitrust exemptions in recent decades.18\nOn the other hand, scope limits of various kinds have always existed. Congress explicitly limited antitrust by statute as early as 1914,19 and did so many more times during the rise of organized labor20 and the price-and-entry regulatory regimes of the Progressive and New Deal eras.21 Judge-made limits were likewise recognized as early as 1922, again mainly as a consequence of the new regulatory regimes.22 As new waves of health and safety regulation emerged during the 1960s and 1970s,23 defendants sought antitrust clemency with some increasing success.24 Courts have also long sought to protect the political process from antitrust, even though businesses have frequently turned to that arena for advantage within the marketplace.25 \nInterestingly, most other nations with competition laws have similar histories of complex scope limits. The European Union (EU), for example, built a process for exemption into the very first treaty creating its competition law,26 and much of the work of its competition authority has involved administration of that process. The national laws of several EU member states likewise included various exclusions before creation of the EU,27 and exemptions exist in Australia, Canada, Japan, and South Korea.28\nThis long history, in which the generally broad applicability of the antitrust laws has been fraught with controversial disputes, can be seen as a struggle between the general and the specific. For the most part, substantive antitrust insists on generality and purports to oppose special treatment for the idiosyncrasies of particular markets.29 Antitrust presumes, in other words, that in respects important to antitrust, markets are mostly the same. Thus, in the absence of an exemption, the U.S, antitrust laws apply to all exchanges of goods or services for consideration, anywhere within the domestic reach of Congress’s interstate commerce power, and quite broadly to overseas conduct as well, where anticompetitive effects are felt in the United States.30 Yet, that broad application, especially during periods in which antitrust laws were applied more strictly and many kinds of conduct were held per se illegal, invites arguments that some contexts simply cannot be subject to one-size-fits-all policies.31 There have been times, as during the heyday of “destructive competition” reasoning during the first part of the 20th century, when industries like transportation, communications, and insurance were quite successful in arguing that special economic problems prevented them from performing well under the rules of competition that antitrust imposed elsewhere.32 Similar arguments have found some traction in more recent times, even as during this purportedly deregulatory age we generally claim to have disposed of the longstanding fear of destructive competition. For example, recent, explicit antitrust exemptions now protect standard setting organizations,33 the placement program for medical residents,34 and charitable gift annuities.35 \nAccordingly, despite the strong commitment to generality often stated, we do in fact see limits on scope. For the most part, the courts and Congress have followed one consistent instinct in moderating these struggles between the general and the specific. They typically will relax the preference for antitrust only where there is some other public, politically accountable oversight of a particular market. In effect, antitrust exemptions usually reflect the instinct that we should have either regulation or antitrust in any given context, which is to say that any context should be regulated either by direct government oversight or by competition kept healthy through antitrust.36 Thus, at least traditionally, Congress rarely displaced antitrust without setting up an administrative agency to take its place. Likewise, where courts fashioned scope limitations, they generally did so only where a regulatory agency oversaw rates or conduct (as with the filed rate doctrine) or where the challenged conduct was actually the conduct of a government entity itself (as with the state action doctrine).\nB. Sources of the Scope of Antitrust Law\nThe scope of federal antitrust law is governed by three separate authorities-: (1) the U.S. Constitution, (2) the language of the antitrust statutes themselves, and (3) the language of other federal statutes and regulations.", "role": "user" }, { "content": "The Supreme Court’s many emphatic generalizations over several decades suggest that antitrust applies very broadly. “[A]ntitrust,” the Court has said, “[is] a fundamental national economic policy\nWhen describing the scope of antitrust law in the abstract, therefore, courts commonly speak in very broad terms\nCongress\nstrike as broadly as it could” in enacting the antitrust laws\n“[l]anguage more comprehensive” than those statutes contain “is difficult to conceive.”\nThe breadth accorded the antitrust laws by the courts “reflects the felt indispensable role of antitrust policy in the maintenance of a free economy... .”\nOne might then have thought that the scope of antitrust would be\nsimple\nIf the law applies\nbroadly\ncases raising serious issues of applicability would be rare. But in fact it is not simple at all\nThe scope of antitrust is governed by\nfederal statutes and\nelaborate caselaw doctrines\nNumerous cases\nraise\nscope issues\nand\nthousands of\nopinions\naddress them\nin meticulous, complex detail\nNo prior work\nconsidered the entire law of the scope of antitrust as one body, in any comprehensive and integrated way. Integrated treatment poses certain benefits\nScope issues are as old as antitrust itself\nThey have also always been controversial. On the one hand, limits on the scope of antitrust are said to be disfavored\ndespite the strong commitment to generality often stated\nwe do in fact see limits on scope\nthe courts and Congress have followed one consistent instinct in moderating\nstruggles between the general and the specific. They typically will relax the preference for antitrust only where there is some other public, politically accountable oversight of a particular market\nexemptions\nreflect the instinct that we should have either regulation or antitrust in any given context, which is to say\nany context should be regulated either by direct government oversight or by competition\nthrough antitrust\nThus\nCongress rarely displaced antitrust without setting up an administrative agency\nLikewise, where courts fashioned scope limitations\nthey\ndid so only where a regulatory agency oversaw rates or conduct\nThe scope of federal antitrust law is governed by\nthe\nConstitution\nthe language of the antitrust statutes themselves, and\nthe language of other federal statutes", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It's exclusive AND based on the only work to have comprehensively assessed the ‘scope of antitrust laws.’", "role": "system" }, { "content": "The Supreme Court’s many emphatic generalizations over several decades suggest that antitrust applies very broadly. “[A]ntitrust,” the Court has said, “[is] a fundamental national economic policy\nWhen describing the scope of antitrust law in the abstract, therefore, courts commonly speak in very broad terms\nCongress\nstrike as broadly as it could” in enacting the antitrust laws\n“[l]anguage more comprehensive” than those statutes contain “is difficult to conceive.”\nThe breadth accorded the antitrust laws by the courts “reflects the felt indispensable role of antitrust policy in the maintenance of a free economy... .”\nOne might then have thought that the scope of antitrust would be\nsimple\nIf the law applies\nbroadly\ncases raising serious issues of applicability would be rare. But in fact it is not simple at all\nThe scope of antitrust is governed by\nfederal statutes and\nelaborate caselaw doctrines\nNumerous cases\nraise\nscope issues\nand\nthousands of\nopinions\naddress them\nin meticulous, complex detail\nNo prior work\nconsidered the entire law of the scope of antitrust as one body, in any comprehensive and integrated way. Integrated treatment poses certain benefits\nScope issues are as old as antitrust itself\nThey have also always been controversial. On the one hand, limits on the scope of antitrust are said to be disfavored\ndespite the strong commitment to generality often stated\nwe do in fact see limits on scope\nthe courts and Congress have followed one consistent instinct in moderating\nstruggles between the general and the specific. They typically will relax the preference for antitrust only where there is some other public, politically accountable oversight of a particular market\nexemptions\nreflect the instinct that we should have either regulation or antitrust in any given context, which is to say\nany context should be regulated either by direct government oversight or by competition\nthrough antitrust\nThus\nCongress rarely displaced antitrust without setting up an administrative agency\nLikewise, where courts fashioned scope limitations\nthey\ndid so only where a regulatory agency oversaw rates or conduct\nThe scope of federal antitrust law is governed by\nthe\nConstitution\nthe language of the antitrust statutes themselves, and\nthe language of other federal statutes", "role": "user" }, { "content": "generalizations\nantitrust\nvery broadly\nnational economic policy\nscope\nabstract\ncommonly\nvery broad terms\nbroadly as it could\ndifficult to conceive\nscope of antitrust\nsimple\nbroadly\nfact\nnot simple at all\nscope\nantitrust\ngoverned by\nfederal statutes and\ncaselaw doctrines\nNumerous cases\nscope issues\nthousands\nopinions\nmeticulous, complex detail\nentire\none body\nany comprehensive\nintegrated way. Integrated treatment poses\nbenefits\nScope\nas old as antitrust itself\ncontroversial\nlimits\nsaid\ndisfavored\ngenerality\nstated\ndo in fact see limits on scope\nrelax\nonly\nother public, politically accountable oversight of a particular market\nexemptions\neither regulation or antitrust\neither\ndirect government oversight\ncompetition\nantitrust\nrarely displaced antitrust\nadministrative\ncourts\nscope limitations\nonly\nregulatory agency\nscope of federal antitrust law\nConstitution\nlanguage of the antitrust statutes themselves\nother federal statutes", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It's exclusive AND based on the only work to have comprehensively assessed the ‘scope of antitrust laws.’\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "The Supreme Court’s many emphatic generalizations over several decades suggest that antitrust applies very broadly. “[A]ntitrust,” the Court has said, “[is] a fundamental national economic policy\nWhen describing the scope of antitrust law in the abstract, therefore, courts commonly speak in very broad terms\nCongress\nstrike as broadly as it could” in enacting the antitrust laws\n“[l]anguage more comprehensive” than those statutes contain “is difficult to conceive.”\nThe breadth accorded the antitrust laws by the courts “reflects the felt indispensable role of antitrust policy in the maintenance of a free economy... .”\nOne might then have thought that the scope of antitrust would be\nsimple\nIf the law applies\nbroadly\ncases raising serious issues of applicability would be rare. But in fact it is not simple at all\nThe scope of antitrust is governed by\nfederal statutes and\nelaborate caselaw doctrines\nNumerous cases\nraise\nscope issues\nand\nthousands of\nopinions\naddress them\nin meticulous, complex detail\nNo prior work\nconsidered the entire law of the scope of antitrust as one body, in any comprehensive and integrated way. Integrated treatment poses certain benefits\nScope issues are as old as antitrust itself\nThey have also always been controversial. On the one hand, limits on the scope of antitrust are said to be disfavored\ndespite the strong commitment to generality often stated\nwe do in fact see limits on scope\nthe courts and Congress have followed one consistent instinct in moderating\nstruggles between the general and the specific. They typically will relax the preference for antitrust only where there is some other public, politically accountable oversight of a particular market\nexemptions\nreflect the instinct that we should have either regulation or antitrust in any given context, which is to say\nany context should be regulated either by direct government oversight or by competition\nthrough antitrust\nThus\nCongress rarely displaced antitrust without setting up an administrative agency\nLikewise, where courts fashioned scope limitations\nthey\ndid so only where a regulatory agency oversaw rates or conduct\nThe scope of federal antitrust law is governed by\nthe\nConstitution\nthe language of the antitrust statutes themselves, and\nthe language of other federal statutes", "role": "user" }, { "content": "No prior work\nconsidered the entire law of the scope of antitrust as one body, in any comprehensive and integrated way. Integrated treatment poses\nbenefits\nwe\nsee limits\nonly where there is some other public\naccountable oversight\nwe\nhave\nregulation or antitrust", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Independently---a ‘substantial increase’ must be change in kind, not merely magnitude.", "role": "system" }, { "content": "To prove the aggravated kidnapping allegation, there must be nonconsensual movement of the victim that is not merely incidental to the commission of the underlying crime, and the movement must substantially increase the risk of harm over and above that necessarily present in the underlying crime itself. (Martinez, supra, 20 Cal.4th at pp. 232-233.) The requirements of substantial movement and substantial increase in risk are separate, but interrelated, and are determined by consideration of the totality of the circumstances in a qualitative rather than quantitative evaluation. (People v. Dominguez (2006) 39 Cal.4th 1141, 1152, 47 Cal. Rptr. 3d 575, 140 P.3d 866 (Dominguez).)", "role": "user" }, { "content": "there must be\nsubstantial\nincrease\nThe requirements of\nsubstantial increase\nare determined by consideration of\ncircumstances in a qualitative rather than quantitative evaluation", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Independently---a ‘substantial increase’ must be change in kind, not merely magnitude.\n\nHighlight Ratio: 0.7", "role": "system" }, { "content": "there must be\nsubstantial\nincrease\nThe requirements of\nsubstantial increase\nare determined by consideration of\ncircumstances in a qualitative rather than quantitative evaluation", "role": "user" }, { "content": "requirements of\nsubstantial increase\nare determined by consideration of\ncircumstances\nqualitative rather than quantitative", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 1. LEGAL PRECISION---if it doesn’t list a specific exemption or immunity adjusted by the plan, it’s not good enough. Congress intended the laws to reach all conduct touched by the Commerce Clause; deviations from this default must be clear and explicit.", "role": "system" }, { "content": "§20.1 ANTITRUST IS THE GREAT SWISS CHEESE\nIn the abstract, antitrust appears to apply broadly, so much so that it seems at first glance to reach to the full extent of the Congress’s constitutional power over interstate commerce. Sherman Act §§1 and 2 by their terms apply to “trade or commerce” that occurs anywhere in the interstate and foreign commerce of the United States, and the federal courts have taken that language to express a congressional intent that antitrust be very broadly applied. The inclusive modern definition is perhaps the natural culmination of the Supreme Court’s long-held belief that “Congress intended to strike as broadly as it could in §1 of the Sherman Act,’ - a view it developed because “language more comprehensive” than that in §1 “is difficult to conceive.\"- It probably also reflects the broad definition given to the terms “trade” and “commerce” for various purposes at common law, as the courts have explicitly held that antitrust was meant to incorporate those ideas.\nBut having said all that, antitrust actually turns out to be subject to quite a bristling profusion of little exemptions and limitations, and each of those limits has spawned its own case law, history, and idiosyncrasies. The scope of antitrust, in other words, turns out to be a surprisingly complex little body of law in its own right. Indeed, this book devotes four full chapters to it (Chapters 20-23) and doesn’t even cover it all. An interesting fact is that 382 this is also true of the competition laws of most nations that have them. The European Union (EU), for example, for as long as it has had a competition law, has had a procedure in place by which specific industries can seek “block exemptions” from EU competition law. As just a few examples, the EU for many years recognized exemptions for insurance and ocean shipping, both of which have also long enjoyed exemptions from U.S. antitrust.\nFirst of all, even the very broad modem conception of “trade or commerce” under the Sherman Act does not reach everything that could be regulated under Congress’s power. Notably, it excludes purely charitable or gratuitous exchanges of goods or services, and notoriously, as the lingering result of a historical accident, it excludes the game of professional baseball. It also has international limits. While U.S. antitrust does reach some conduct that occurs overseas, the rules by which it does are complicated and result from a surprisingly political, long-standing compromise involving U.S. importing and exporting interests. Discussing these features of the basic scope of antitrust will consume the rest of this chapter. \nMoreover, several large carve outs from the scope of antitrust have been developed through a body of purely judge-made case law. The most important of these is a set of rules that prevent antitrust from applying to the political process, a problem discussed in Chapter 21. Imagine that the owners of railroads operating in a given state agree to collectively urge the state’s legislature to prohibit the shipping of cargo within the state by semi truck. If the legislature complies, the result would be patently anticompetitive and contrary to the policy of the antitrust laws. But for federal antitrust to prohibit it would also be quite a surprising result that was likely unintended by Congress and would also probably impinge on political participation protected by the First Amendment. So, as we will see, the Supreme Court has provided through a set of rules known as the political “immunities” that antitrust mostly does not apply to this sort of thing.\nThe Court has developed other case-law exemptions, notably for conduct already regulated by some statute other than antitrust (discussed in Chapter 22), and for labor union activities (discussed in Chapter 23).\nFinally, Congress has also tinkered quite a lot with the scope of antitrust, usually in much more specific ways than the courts have done. It has done so normally at the request of the affected industry and often over vigorous protest from that industry’s customers, the government enforcement agencies, and other observers. There are now upwards of 30 explicit statutory antitrust exemptions. Among a few dozen other filings, antitrust does not apply to the “business of insurance,” ocean shipping, exporting cartels that send products into foreign commerce, the medical resident matching program, international airline alliances, the granting of need-based financial aid by universities, the fixing of interest rates for charitable gift annuities, or — everybody simply must love this one — the marketing of hog cholera serum. Also, in many cases in which antitrust still applies, Congress has 383 modified it by statute. For example, while local government entities can be antitrust defendants, they cannot be sued for money damages. Likewise, research and production joint ventures can be sued only under the rule of reason and can only face single (not treble) damages. The handling and significance of these many statutory exemptions will be discussed briefly in Chapter 22, which more generally addresses antitrust in regulated industries.\n§20.2 THE BASIC SCOPE OF ANTITRUST: THE “COMMERCE” REQUIREMENT, THE INTERSTATE REQUIREMENT, AND THE REACH OF THE CLAYTON AND FTC ACTS\n§20.2.1 “Trade or Commerce” in General; Its Exclusion of Charity and Gratuity; and That Awkward Orphan of Antitrust, Professional Baseball\nWhile, again, there are many specific exceptions from the scope of antitrust, it remains the case that where no statutory or case-law exemption is available, antitrust cuts very, very broadly. The basic question of its scope is to ask where the boundaries might lie of the “trade or commerce\" that occurs “among the several States, or with foreign nations,\" which is explicitly referenced in Sherman Act §1 and 2.\nFirst, observe that, by the apparent indication of the explicit language, the requirement that the conduct occur in interstate or foreign commerce is logically distinct from the requirement that the conduct constitutes \"trade or commerce.\" The indication seems to be that conduct can be “trade-like” or “commercial\" without being in interstate or foreign commerce, and vice versa. Fortunately, at least one of these requirements is easy. It is now clear that domestic conduct is within “interstate” commerce any time it is within the interstate commerce jurisdiction of Congress under the Commerce Clause of the U.S. Constitution. Whether it can be within \"foreign\" commerce turns out to be a fair bit more complex, but that will be discussed in §20.3.\nWhether conduct is “trade or commerce\" raises a different question, and it is the question of whether the conduct is the sort that Congress intended to be subject to mandatory competition. Modem courts define the scope of “trade or commerce” very broadly. Even early decisions defined the “commerce” subject to the statute to include any \"purchase, sale, or exchange of commodities,\"^ and they said it should be construed liberally, 384 to give the statute its intended effect — it should “not [be treated as] a technical legal conception, but [as] a practical one, drawn from the course of business.”^ More importantly, modem courts have held generally that any exchange of money for a good or service, between any persons, is in “trade or commerce.”^ In one influential case, United States v. Brown Univ., 5 F.3d 658 (3d Cir. 1993), the Third Circuit held that an agreement among nonprofit universities concerning need-based scholarship funds was a contract relating to “trade or commerce.” Despite what might have appeared to be genuine charity, the court had no real trouble with the issue. The defendants conceded that the giving of educational services in exchange for money is \"commerce,” regardless of the defendants’ nonprofit form of organization. And, the court wrote,\n[t]he amount of financial aid not only impacts, but directly determines the amount that a needy student must pay to receive an education at [the defendant schools]. The financial aid therefore is part of the commercial process of setting tuition.\nId. at 665.\nIn fact, it is really only in limited, exotic circumstances that modem courts have found conduct simply not within \"trade or commerce” for antitrust purposes. A leading case is Dedication and Everlasting Love to Animals v. Humane Socy. of the United States, Inc., 50 F.3d 710 (9th Cir. 1995). The plaintiff was a California charitable organization devoted to animal welfare. It sued the Humane Society, a national umbrella organization for nonprofit entities committed to similar purposes. The plaintiff’s theory of liability was in effect that the Humane Society, a \"competitor” for the same charitable donations on which the plaintiff relied to fund its operations, had taken various actions to steal away the \"market” for donations. While first acknowledging that no conclusion could be drawn from the fact that the parties were organized as nonprofit corporations, the court seemed fairly appalled at the very idea of the plaintiff’s theory of liability. “If statutory language is to be given even a modicum of meaning,” wrote the court, \"the solicitation of [charitable] contributions... is not trade or commerce, and the Sherman Act has no application to such activity.” Id. at 712.\nLet us observe one important fact about these definitions of \"commerce.” They focus on the nature of the conduct that is challenged, not the nature of the person or entity that engages in it. The Supreme Court has 385 made very clear that the fact that a party is organized as a nonprofit entity is irrelevant. More generally, the courts and commentators are in wide agreement that “[t]here is no immunity [from antitrust] conferred by the form of the organization.\" Accordingly, the fact that a party is organized as, say, a not-for-profit entity or an unincorporated association or in some other seemingly noncommercial form is essentially irrelevant. This is so because such entities can have incentives and pose policy concerns that are the same as for-profit businesses. Also, if businesses could avoid antitrust merely by reorganizing in a certain way, it would create a large loophole in antitrust.", "role": "user" }, { "content": "ANTITRUST IS THE GREAT SWISS CHEESE\nIn the abstract, antitrust appears to apply broadly\nit seems at first glance to reach to the full extent of the Congress’s constitutional power over interstate commerce. Sherman\nby their terms apply to “trade or commerce” that occurs anywhere in the interstate and foreign commerce of the U\nS\nand\nfederal courts have taken that language to express a congressional intent that antitrust be very broadly applied. The inclusive modern definition is\nthe natural culmination of the Supreme Court’s long-held belief that “Congress intended to strike as broadly as it could\nlanguage more comprehensive\nis difficult to conceive\nthe broad definition given to the terms “trade” and “commerce” for various purposes at common law\nthe courts have explicitly held\nantitrust\nmeant to incorporate those ideas\nThe scope of antitrust\nturns out to be\nsurprisingly complex\nhas\nexemptions\neven the very broad modem conception of “trade or commerce” under the Sherman Act does not reach everything that could be regulated under Congress’s power\nit excludes purely charitable or gratuitous exchanges\nand\nthe game of professional baseball. It also has international limits\nseveral\ncarve outs from the scope\nhave been developed through\npurely judge-made case law. The most important\nis a set of rules that prevent antitrust from applying to the political process\nThe Court\ndeveloped other case-law exemptions, notably for conduct already regulated by some statute other than antitrust\nand for labor\nactivities\nCongress\nalso tinkered quite a lot with the scope of antitrust, usually in much more specific ways\nIt has done so normally at the request of the affected industry\nThere are now upwards of 30 explicit statutory antitrust exemptions. Among a few dozen\nantitrust does not apply to the “business of insurance,” ocean shipping, exporting cartels\nthe medical resident matching program, international airline alliances, the granting of need-based financial aid by universities, the fixing of interest rates for charitable gift annuities, or\neverybody simply must love this one\nthe marketing of hog cholera serum\nWhile\nthere are many specific exceptions from the scope of antitrust\nit remains the case that where no statutory or case-law exemption is available, antitrust cuts very, very broadly. The basic question of its scope is to ask where the boundaries might lie of the “trade or commerce\" that occurs “among the several States, or with foreign nations,\"\ncourts define the scope of “trade or commerce” very broadly\nEven early decisions defined the “commerce” subject to the statute to include any \"purchase, sale, or exchange\nand\nsaid it should be construed liberally\nto give the statute its intended effect\nnot\nas] a technical legal conception, but [as] a practical one, drawn from the course of business\nany exchange of money for a good or service, between any persons, is in “trade or commerce.”\nan agreement among nonprofit universities concerning need-based scholarship funds was a contract relating to “trade or commerce.” Despite what might have appeared to be genuine charity, the court had no real trouble with the issue. The defendants conceded that the giving of educational services in exchange for money is \"commerce,” regardless of the\nnonprofit form\nit is really only in limited, exotic circumstances that modem courts have found conduct simply not within \"trade or commerce” for antitrust purposes.\nthe solicitation of [charitable] contributions... is not trade or commerce\ndefinitions of \"commerce.”\nfocus on the nature of the conduct\nchallenged\nnot the nature of the person or entity that engages in it. The Supreme Court has\nmade very clear that the fact that a party is organized as a nonprofit entity is irrelevant\n“[t]here is no immunity [from antitrust] conferred by the form of the organization", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 1. LEGAL PRECISION---if it doesn’t list a specific exemption or immunity adjusted by the plan, it’s not good enough. Congress intended the laws to reach all conduct touched by the Commerce Clause; deviations from this default must be clear and explicit.", "role": "system" }, { "content": "ANTITRUST IS THE GREAT SWISS CHEESE\nIn the abstract, antitrust appears to apply broadly\nit seems at first glance to reach to the full extent of the Congress’s constitutional power over interstate commerce. Sherman\nby their terms apply to “trade or commerce” that occurs anywhere in the interstate and foreign commerce of the U\nS\nand\nfederal courts have taken that language to express a congressional intent that antitrust be very broadly applied. The inclusive modern definition is\nthe natural culmination of the Supreme Court’s long-held belief that “Congress intended to strike as broadly as it could\nlanguage more comprehensive\nis difficult to conceive\nthe broad definition given to the terms “trade” and “commerce” for various purposes at common law\nthe courts have explicitly held\nantitrust\nmeant to incorporate those ideas\nThe scope of antitrust\nturns out to be\nsurprisingly complex\nhas\nexemptions\neven the very broad modem conception of “trade or commerce” under the Sherman Act does not reach everything that could be regulated under Congress’s power\nit excludes purely charitable or gratuitous exchanges\nand\nthe game of professional baseball. It also has international limits\nseveral\ncarve outs from the scope\nhave been developed through\npurely judge-made case law. The most important\nis a set of rules that prevent antitrust from applying to the political process\nThe Court\ndeveloped other case-law exemptions, notably for conduct already regulated by some statute other than antitrust\nand for labor\nactivities\nCongress\nalso tinkered quite a lot with the scope of antitrust, usually in much more specific ways\nIt has done so normally at the request of the affected industry\nThere are now upwards of 30 explicit statutory antitrust exemptions. Among a few dozen\nantitrust does not apply to the “business of insurance,” ocean shipping, exporting cartels\nthe medical resident matching program, international airline alliances, the granting of need-based financial aid by universities, the fixing of interest rates for charitable gift annuities, or\neverybody simply must love this one\nthe marketing of hog cholera serum\nWhile\nthere are many specific exceptions from the scope of antitrust\nit remains the case that where no statutory or case-law exemption is available, antitrust cuts very, very broadly. The basic question of its scope is to ask where the boundaries might lie of the “trade or commerce\" that occurs “among the several States, or with foreign nations,\"\ncourts define the scope of “trade or commerce” very broadly\nEven early decisions defined the “commerce” subject to the statute to include any \"purchase, sale, or exchange\nand\nsaid it should be construed liberally\nto give the statute its intended effect\nnot\nas] a technical legal conception, but [as] a practical one, drawn from the course of business\nany exchange of money for a good or service, between any persons, is in “trade or commerce.”\nan agreement among nonprofit universities concerning need-based scholarship funds was a contract relating to “trade or commerce.” Despite what might have appeared to be genuine charity, the court had no real trouble with the issue. The defendants conceded that the giving of educational services in exchange for money is \"commerce,” regardless of the\nnonprofit form\nit is really only in limited, exotic circumstances that modem courts have found conduct simply not within \"trade or commerce” for antitrust purposes.\nthe solicitation of [charitable] contributions... is not trade or commerce\ndefinitions of \"commerce.”\nfocus on the nature of the conduct\nchallenged\nnot the nature of the person or entity that engages in it. The Supreme Court has\nmade very clear that the fact that a party is organized as a nonprofit entity is irrelevant\n“[t]here is no immunity [from antitrust] conferred by the form of the organization", "role": "user" }, { "content": "ANTITRUST IS THE GREAT SWISS CHEESE\nabstract, antitrust appears to apply broadly\nfirst glance\nfull extent of the Congress’s constitutional power over interstate commerce\nterms\n“trade or commerce”\nanywhere\ninterstate\nforeign\nU\nS\nfederal courts\nvery broadly applied\nmodern\nlong-held belief\nintended\nstrike as broadly as it could\nmore comprehensive\ndifficult to conceive\nexplicitly\nantitrust\nincorporate those ideas\nscope\ncomplex\nexemptions\ncould\nexcludes\ncharitable\ngratuitous\nprofessional baseball\ninternational\ncarve outs\npolitical process\nother\nexemptions\nalready regulated\nstatute other than antitrust\nlabor\nalso\nspecific\naffected industry\nstatutory antitrust exemptions\ninsurance\nshipping\nexporting\neverybody simply must love this one\nspecific exceptions\nscope\nremains the case\nno statutory or case-law exemption is available, antitrust cuts very, very broadly\nbasic question\nwhere the boundaries might lie of the “trade or commerce\" that occurs “among the several States, or with foreign nations,\"\ntrade or commerce\nvery broadly\ninclude any \"purchase, sale, or exchange\nconstrued liberally\nnot\ntechnical legal conception\npractical\ncourse of business\nany exchange of money for a good or service\nany persons\nrelating to “trade or commerce.”\nappeared\ncharity\nno real trouble with the issue\nlimited, exotic circumstances\nsolicitation\nnot\ncommerce\nconduct\nnot\nparty\nirrelevant\nno immunity [from antitrust]\nform of the organization", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 1. LEGAL PRECISION---if it doesn’t list a specific exemption or immunity adjusted by the plan, it’s not good enough. Congress intended the laws to reach all conduct touched by the Commerce Clause; deviations from this default must be clear and explicit.\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "ANTITRUST IS THE GREAT SWISS CHEESE\nIn the abstract, antitrust appears to apply broadly\nit seems at first glance to reach to the full extent of the Congress’s constitutional power over interstate commerce. Sherman\nby their terms apply to “trade or commerce” that occurs anywhere in the interstate and foreign commerce of the U\nS\nand\nfederal courts have taken that language to express a congressional intent that antitrust be very broadly applied. The inclusive modern definition is\nthe natural culmination of the Supreme Court’s long-held belief that “Congress intended to strike as broadly as it could\nlanguage more comprehensive\nis difficult to conceive\nthe broad definition given to the terms “trade” and “commerce” for various purposes at common law\nthe courts have explicitly held\nantitrust\nmeant to incorporate those ideas\nThe scope of antitrust\nturns out to be\nsurprisingly complex\nhas\nexemptions\neven the very broad modem conception of “trade or commerce” under the Sherman Act does not reach everything that could be regulated under Congress’s power\nit excludes purely charitable or gratuitous exchanges\nand\nthe game of professional baseball. It also has international limits\nseveral\ncarve outs from the scope\nhave been developed through\npurely judge-made case law. The most important\nis a set of rules that prevent antitrust from applying to the political process\nThe Court\ndeveloped other case-law exemptions, notably for conduct already regulated by some statute other than antitrust\nand for labor\nactivities\nCongress\nalso tinkered quite a lot with the scope of antitrust, usually in much more specific ways\nIt has done so normally at the request of the affected industry\nThere are now upwards of 30 explicit statutory antitrust exemptions. Among a few dozen\nantitrust does not apply to the “business of insurance,” ocean shipping, exporting cartels\nthe medical resident matching program, international airline alliances, the granting of need-based financial aid by universities, the fixing of interest rates for charitable gift annuities, or\neverybody simply must love this one\nthe marketing of hog cholera serum\nWhile\nthere are many specific exceptions from the scope of antitrust\nit remains the case that where no statutory or case-law exemption is available, antitrust cuts very, very broadly. The basic question of its scope is to ask where the boundaries might lie of the “trade or commerce\" that occurs “among the several States, or with foreign nations,\"\ncourts define the scope of “trade or commerce” very broadly\nEven early decisions defined the “commerce” subject to the statute to include any \"purchase, sale, or exchange\nand\nsaid it should be construed liberally\nto give the statute its intended effect\nnot\nas] a technical legal conception, but [as] a practical one, drawn from the course of business\nany exchange of money for a good or service, between any persons, is in “trade or commerce.”\nan agreement among nonprofit universities concerning need-based scholarship funds was a contract relating to “trade or commerce.” Despite what might have appeared to be genuine charity, the court had no real trouble with the issue. The defendants conceded that the giving of educational services in exchange for money is \"commerce,” regardless of the\nnonprofit form\nit is really only in limited, exotic circumstances that modem courts have found conduct simply not within \"trade or commerce” for antitrust purposes.\nthe solicitation of [charitable] contributions... is not trade or commerce\ndefinitions of \"commerce.”\nfocus on the nature of the conduct\nchallenged\nnot the nature of the person or entity that engages in it. The Supreme Court has\nmade very clear that the fact that a party is organized as a nonprofit entity is irrelevant\n“[t]here is no immunity [from antitrust] conferred by the form of the organization", "role": "user" }, { "content": "antitrust\nreach\nthe full extent of\n“trade or commerce”\nCongress intended to strike as broadly as it could\nlanguage more comprehensive\nis difficult to conceive\nThe scope of antitrust\nhas\nexemptions\nseveral\npurely judge-made\nalso\n30 explicit statutory\nscope\nwhere no\nexemption is available\ncuts very\nbroadly. The basic question\nis\nthe boundaries\nof\n“trade or commerce\"", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: The burden of proof should be heavily AFF", "role": "system" }, { "content": "Supporting this much more limited reading of Board of Regents is entirely consistent with this Court's long-standing disfavor of implicit, court-made exemptions to the antitrust laws.37 [FOOTNOTE 37 BEGINS] See, e.g., Goldfarb v. Va. State Bar, 421 U.S. 773, 777 (1975) ( “[O]ur cases have repeatedly established that there is a heavy presumption against implicit exemptions [to § 1 of the Sherman Act]”); FPC, 369 U.S. at 485 (“Immunity from the antitrust laws is not lightly implied.”) While the Supreme Court held in American Needle v. NFL, 560 U.S. 183 (2010), that “teams that need to cooperate are not trapped by antitrust law” as their shared interests “provide[] perfectly sensible justification for making a host of collective decisions,” that holding was clear that Rule of Reason analysis is still required to weigh that justification against its anticompetitive costs, even if that analysis “can sometimes be applied in the twinkling of an eye.” Id. at 202-04 (quoting Board of Regents, 468 U.S. at 110). Instead, the Alston Petitioners seek a ruling--based on the Seventh Circuit's holdings in Agnew, 683 F.3d at 341-42, and Deppe, 893 F.3d at 501-02--that all restrictions of the college athlete labor market in furtherance of amateurism are presumptively procompetitive, thus automatically outweighing any alleged anticompetitive harm put before the court. This request is not consistent with American Needle. [FOOTNOTE 37 ENDS] A wholesale “procompetitive presumption”--as formulated by the Seventh Circuit in Agnew v. NCAA38 and applied in Deppe v. NCAA39--is too close to a blanket exemption from the Sherman Act to be warranted under the law. By contrast, the Ninth Circuit's approach in this litigation, which places the onus on the Petitioners to prove that their alleged procompetitive rationales-- including the defense and maintenance of amateurism--outweigh the clear anticompetitive effects of the Petitioners' price fixing schemes, is the approach that should be adopted moving forward.", "role": "user" }, { "content": "Supporting this much more limited reading\nis entirely consistent with\nlong-standing disfavor of implicit\nexemptions to the antitrust laws\ncases have repeatedly established that there is a heavy presumption against implicit exemptions\nImmunity from\nantitrust laws is not lightly implied\nholding was clear that Rule of Reason analysis is still required to weigh that justification against\nanticompetitive costs\neven if that analysis “can sometimes be applied in the twinkling of an eye\nInstead\nthe\nPetitioners seek a ruling\nthat all restrictions\nare\nprocompetitive, thus automatically outweighing any alleged\nharm", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: The burden of proof should be heavily AFF", "role": "system" }, { "content": "Supporting this much more limited reading\nis entirely consistent with\nlong-standing disfavor of implicit\nexemptions to the antitrust laws\ncases have repeatedly established that there is a heavy presumption against implicit exemptions\nImmunity from\nantitrust laws is not lightly implied\nholding was clear that Rule of Reason analysis is still required to weigh that justification against\nanticompetitive costs\neven if that analysis “can sometimes be applied in the twinkling of an eye\nInstead\nthe\nPetitioners seek a ruling\nthat all restrictions\nare\nprocompetitive, thus automatically outweighing any alleged\nharm", "role": "user" }, { "content": "limited reading\nconsistent\nlong-standing disfavor\nimplicit\nexemptions\nrepeatedly established\nheavy presumption against implicit exemptions\nImmunity\nnot lightly implied\nclear\nRule of Reason analysis is still required\nweigh that justification against\nanticompetitive costs\neven if that analysis “can sometimes be applied in the twinkling of an eye\nInstead\nall\nprocompetitive\nautomatically", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: The burden of proof should be heavily AFF\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Supporting this much more limited reading\nis entirely consistent with\nlong-standing disfavor of implicit\nexemptions to the antitrust laws\ncases have repeatedly established that there is a heavy presumption against implicit exemptions\nImmunity from\nantitrust laws is not lightly implied\nholding was clear that Rule of Reason analysis is still required to weigh that justification against\nanticompetitive costs\neven if that analysis “can sometimes be applied in the twinkling of an eye\nInstead\nthe\nPetitioners seek a ruling\nthat all restrictions\nare\nprocompetitive, thus automatically outweighing any alleged\nharm", "role": "user" }, { "content": "limited reading\nis\nconsistent with\ndisfavor of implicit\nexemptions\nrepeatedly established\na heavy presumption\nImmunity from\nantitrust\nis not lightly implied\nRule of Reason analysis is still required\neven if that\n“can\nbe applied in the twinkling of an eye", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: It solves better, does not modify antitrust law, AND concessions to appease regulators would go beyond the plan in an effort to stave off binding rulings.", "role": "system" }, { "content": "(i) The American experience: consent decrees in US antitrust\nConsent decrees are used by the federal antitrust authorities, the DOJ and FTC, to conclude civil antitrust actions on a consensual basis. As noted, the bulk of US antitrust enforcement occurs as private damages actions, which do not result in consent decrees; instead, private plaintiffs ‘take their triple damage awards and run’.119 The DOJ (but not the FTC) may also pursue antitrust investigations as criminal actions, and, again, consent decrees are unavailable in such cases. Civil enforcement by the DOJ involves suits in equity brought in federal court,120 whereas the FTC pursues ‘cease-and-desist’ orders, equivalent to prospective equitable relief, under its administrative procedures.121 Consent decrees, accordingly, enable (non-cartel) defendants to settle litigation through concessions agreed with the government agency.\nConsent decrees as utilised by the DOJ are judicial orders, which must be approved by a federal court; whereas FTC decrees can be approved by the FTC Commissioners without additional judicial involvement. Under the Tunney Act,122 DOJ decrees are subject to a public consultation procedure that is intended to prevent mere ‘judicial rubber-stamping’ of settlements;123 following this, the court determines whether approval is in the public interest. This process has been praised as providing a mechanism by which to identify and deter abuse of process, increase public transparency, facilitate third-party input, and enable courts to eliminate ambiguous or unenforceable provisions ex ante.124 Yet the extent to which federal judges review the substance of proposed decrees is disputed,125 and, indeed, the appropriate scope of this judicial discre- tion is a contentious question.126 In Microsoft I, the DC Court of Appeals held that courts should, generally, accept proposed relief if the resulting settlement is ‘within the reaches of the public interest’, which is distinct from the solution ‘that will best serve society’.127 The Court thus acknow- ledged the inherent tension within the Tunney Act process: rejection of a decree on the basis that greater concessions are available would force the competition agency either to drop the complaint entirely, leaving anti- competitive practices unremedied, or to pursue a case theory or seek remedies that it had deemed unnecessary or unwise.128 Review under the Tunney Act remains a precondition for acceptance of any consent decree, but in reality presents a low hurdle where the government and defendant reach agreement on acceptable terms.129 While FTC decrees are not subject to Tunney Act scrutiny,130 the agency engages in a similar process of consultation and public-interest analysis prior to accepting any settlement.131 FTC decrees routinely contain a standard clause waiving all rights to seek judicial review, however, meaning that petitions for review are virtually impossible.132 \nWhy would a defendant – or, indeed, a government agency – opt against fighting a case, but instead choose to settle by consent decree? Settlement can provide considerable benefits for both enforcement agencies and firms under investigation. A key advantage is the procedural economy gains of settlement, in terms of both monetary and institutional resource savings: it is quicker and cheaper for both prosecutors and defendants to settle than to litigate fully. Enforcement agencies see benefit because the underlying market problems can be remedied more quickly than where a case is pursued to full trial. Assuming that the public interest is equally well served by correcting market failures rather than punishing antitrust transgressors, it may be sensible to prioritise the former under a consent decree over the latter in a drawn-out liability procedure. The DOJ expressly seeks relief that will ‘stop the illegal practices alleged in the complaint, prevent their renewal, and restore competition to the state that would have existed had the violation not occurred’,133 and thus prioritises prospective improvements in competition over retrospective punishment of breach. The FTC, too, has an explicit preference for settlement: it aims ‘to secure an effective order – by consent if feasible, or by litigation if necessary’.134 Consent decrees are also easier to enforce if there is reoccurrence of prohibited behaviour, as the government can simply initiate clarification or contempt proceedings in federal district court, rather than filing – and proving – a fresh complaint.135 A finding of contempt on this basis establishes only that the defendant breached the terms of the decree, however, saying nothing about the compatibility of its behaviour with substantive antitrust.136 \nFor defendants, settlement provides a mechanism for managing risk. Settling an antitrust investigation avoids the risk of an adverse holding, while the defendant gains significant control over the remedies imposed. Crucially, the defendant also avoids collateral estoppel in follow-on actions for the same violation. Whereas a final antitrust judgment becomes prima facie evidence of guilt in subsequent private antitrust litigation, the antitrust rules expressly prohibit collateral estoppel for consent decrees,137 and most consent decrees state explicitly that settlement is not an admission of guilt.138 A defendant that chooses to pursue a public-enforcement action to trial thus does so in the knowledge that an adverse finding would facilitate follow-on actions by private plaintiffs. This, of course, makes settlement more attractive. A finding of breach by public enforcers in one jurisdiction may also encourage enforcement activity by authorities in other jurisdictions,139 which further increases the value of settlement for risk-averse firms.\nConsent decrees are settlements, nonetheless, which mean com- promise.140 Although the bargain struck is unlikely to represent the best deal that either side could potentially have achieved had the case gone to a final determination on the merits, the language of compromise suggests that such concessions are mutually beneficial.141 The government agency furthers the public interest by restoring com- petition, while the firm avoids a unilateral finding of breach and the undesirable consequences that follow. A more critical approach would, however, portray compromise as a failure to protect rights: that is, the right of society to have antitrust violations punished, and the right of firms in compliance with antitrust to act independently. In this sense, settlement is ‘avoidance’ because ‘[t]o settle for something means to accept less than some ideal’ in terms of justice.142 The government might settle a case on excessively lenient terms because it is captured or coerced; or it may oppress a weaker defendant to extract disproportion- ate concessions or to resolve a dubious case.143 In the antitrust context, the settlement compromise may present an inefficient outcome, involv- ing either insufficient control of the victorious firm or unnecessary restraint of the losing one. Another pertinent criticism of settlement is that such arrangements do not produce concrete rules of law, but merely involve private bargains. Settlements therefore fail to develop the parameters of law or enrich its content. This problem may be particularly acute in the antitrust context, where prohibitions are broadly drawn, and where firms need a sufficiently clear prospective understanding of the law in order to avoid ex post prosecution. East- erbrook suggested that, where increased use of settlements leads to ‘too few precedents’, the resulting uncertainty encourages greater litigation, so that new precedents are created and settlement levels increase again.144 In the antitrust context, however, uncertainty might have the opposite effect. Antitrust rules are broadly drawn, standards of illegality have varied over time, and extra-legal policy considerations apply to a greater extent than in other legal areas. Uncertainty might therefore encourage defendants to settle, not because their conduct fits within recognised categories of wrongdoing, but because of a fear that existing legal standards are so malleable and indistinct as to allow ex post extension of those broad prohibitions to catch almost any conduct deemed undesirable by competition adjudicators. \na. The nature of consent decrees: accommodating bargains, novelty and regulation \nAntitrust consent decrees have been divided, broadly, into three categories: decrees that apply established legal standards, decrees that develop more novel theories of antitrust harm, and decrees that predominantly regulate firm behaviour or the operation of markets.145 Taking these categories in turn, we consider the extent to which consent decrees might be conceived as a form of regulatory antitrust, and whether such a designation might be problematic.\nGiven that consent decrees contain no findings of liability and thus, formally, establish no rules of law, such decrees do not contain authoritative statements of antitrust in the same manner as litigated judgments.146 While a decree may say much about the permissible conduct of a particular market actor in the future, it establishes little about the parameters of antitrust more generally. Instead, consent decrees are, effectively, contractual bargains between enforcement agencies and defendants. It is generally accepted, nonetheless, that ‘[s]ettlements in the shadow of the law reflect the content of the law’.147 Accordingly, the Supreme Court has sought to develop an approach to consent decrees that encapsulates this duality: part contract, part judicial decree. The Court rejects the view that consent decrees are merely contracts, instead emphasising a continuing quasi-judicial function resulting from their inherently judicial nature.148 Yet, the origins of the decree in the contractual bargain between enforcement agency and firm must be acknowledged, alongside the importance of deferring to the substance of that bargain in exercising its judicial scrutiny role.149 While a consent decree is not wholly a private law instrument, in dealing with the substance of a decree courts are prepared to defer to the ‘private’ bargain embodied in its terms rather than to the substance of antitrust.150 Moreover, because the content of consent decrees is not determined by antitrust alone, such instruments can potentially be used to address anticompetitive behaviour falling outside the established categories of antitrust infringement. Insofar as consent decrees are private bargains, the principle of freedom of contract mandates that the parties should be free to structure these arrangements however each deems most advantageous, provided that there are no public-policy concerns against judicial acceptance of an ‘unconscionable’ bargain. As consent decrees are not formal antitrust rules, furthermore, any novel case theory that underpins a consent decree does not gain acceptance as an established antitrust rule simply by virtue of its oblique inclusion in the decree. Even if the novel theory of liability is problematic, it is confined to a particular bargain rather than having broader effects. On this view, novelty does not prevent parties from adopting individualised private solutions to market problems, which may include distinctly quasi-regulatory, as opposed to purely antitrust-oriented, arrangements.\nUsing antitrust consent decrees to address behaviour that is not clearly incompatible with competition law raises difficult questions. The hybrid nature of consent decrees – part contract, part judicial order – places the novel theory encapsulated in the decree in legal limbo. Although not established as a rule of law, its inclusion confers greater weight than a merely speculative argument advanced in private litigation. It represents the considered view of the enforcement agency that such conduct violates antitrust and merits enforcement action, and, although the underlying antitrust claim does not receive judicial endorsement, the decree provisions that incorporate the novel case theory require court approval. This ambiguity creates uncertainty, which means that prudent firms might be advised to respect the parameters established obliquely by the consent decree and not merely the limits of the recognised rules. Consequently, although the novel theory is not antitrust law as such, its inclusion within a consent decree may confer upon it the effect of restricting the commercial freedom of other firms, without any substantive legal basis for this result. A related criticism is that, where novel cases are resolved by consent decree, the underlying theory largely escapes judicial scrutiny and challenge. Absent robust review and critique, legally unsound or economically unreasonable theories might slip though the antitrust net, providing ostensibly valid grounds for future enforcement and gaining soft law status as established law. Without the check provided by a substantive adjudicative process, antitrust may develop in a manner inconsistent with sensible competition policy. The difficulty of creating effective and appropriate remedies for novel breaches is a connected problem.151 \nThe issue of novelty within consent decrees thus remains controversial. A policy against settlement by decree, unless the alleged conduct would fairly certainly be illegal,152 arguably best protects the integrity of public enforcement and substantive antitrust law. The simplicity of this approach, however, belies the difficult choices that it requires. Given that consent decrees are the principal means of case disposition for non-criminal public enforcement, an antitrust agency that identifies anticompetitive behaviour just beyond the established parameters of antitrust would face a significant dilemma. Either the agency would have to commit, ex ante, to litigate the case to final judgment even if the defendant would settle on terms that remedy the competition problem, or it must abandon the investigation leaving the competition problems unresolved. This unyielding choice not only interferes with the enforcement agency’s discretion to determine the best use of its limited resources; the unavailability of the settlement procedure is moreover unfair to defendants prepared to settle, who are denied access to a settlement tool available where the infringement is more clear-cut. The wider social benefits of generating precedents to clarify the law would therefore come at the expense of parties that wish to minimise costs by settling, yet which are forced to litigate.153 \nWhat does this mean in terms of the use of consent decrees as a form of quasi-regulation? As discussed, consent decrees are considered to have a central role in the perceived movement from an historical law-based model to the current regulation-based model within US antitrust.154 Undoubtedly, the hybridised law-contract status of consent decrees, and the fact that decrees are largely disconnected from the constraints of conventional antitrust doctrine, contributes to a perception of antitrust settlements as a flexible tool for bureaucratic market governance, which is distinguishable from the legalistic model of antitrust enforcement. The content of consent decree remedies can differ markedly from typical litigated antitrust remedies, which tends to bring such instruments within the sphere of regulation. Remedies not infrequently go beyond the scope of what could be required under antitrust law: often the objective is not to address discrete instances of anticompetitive behaviour, but rather to improve the functioning of the market more generally. Decree provisions may place defendants under affirmative duties that require on-going monitoring to ensure compliance, and so many decrees also establish on-going judicial or governmental supervision mechanisms. The sometimes-static nature of settlement terms is another source of criticism. Although markets evolve constantly in dynamic waves of creative destruction, the decreed optimal behaviour of a firm as encapsu- lated in a consent decree with behavioural remedies is tied to particular market circumstances frozen at a particular point in time.155 Recognising this genuine problem, the DOJ, in particular, has sought to limit the temporal impact of consent decrees, by incorporating ‘sunset clauses’ into all decrees concluded after 1979,156 and to introduce a degree of flexibility, by progressively streamlining procedures for modification and termination of existing decrees.157 Additionally, the process by which decrees are agreed upon is primarily administrative rather than judicial or adversarial. While the argument is not (yet) that antitrust has become a purely regulatory exercise, current enforcement practice thus leans in this direction and away from a law enforcement model.158 Regulatory consent decrees are not pure regulation, as such – but nor are these instruments antitrust in the traditional black-letter sense, either.\nThe on-going use of consent decrees to supervise, closely, the activities of the two largest collecting societies in the USA – the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) – illustrates the potential for such instruments to be applied in a decidedly quasi-regulatory fashion. Collecting societies administer the collection of licensing fees for public performances of copyrighted works on behalf of copyright owners. Although such agencies can minimise transaction costs for artists and those who use their work, their activities have nonetheless been subject to antitrust scrutiny in numerous jurisdic- tions on the basis that collecting societies facilitate collusion over price- setting by apparent competitors. In 1941, the DOJ entered into consent decrees with ASCAP159 and BMI,160 placing limitations on the licensing provisions that each could apply. Remarkably, although each decree has undergone significant court-approved modification in the intervening period, both remain in force as the primary means of regulating the activities of these organisations almost three-quarters of a century later. The decree provisions include, since 1950 for ASCAP161 and 1994 for BMI,162 the appointment of rate-setting courts to determine licence fees, which has often involved close and on-going judicial involvement in the process of setting fees.163 The complexity of the finely balanced competi- tion issues persuades even those more sceptical commentators that regulation of some sort is necessary to secure effective performance,164 and the enduring nature of the ASCAP and BMI decrees suggests that these instruments provide a workable, even if imperfect, solution. None- theless, as a mechanism of regulation, the decrees have faced criticisms. Given that each reflects, in essence, a private bargain, the weight of the regulatory burden imposed on each entity has not always been equal, a fact which, Epstein argued, directly benefitted the market performance of BMI, the less heavily regulated entity.165 The limitations of what can be achieved by consent decrees – for instance, bargaining between the DOJ and defendant firms cannot result in the creation of a new adminis- trative agency to oversee compliance – have also meant that adminis- tration of the decree provisions must occur through relatively inefficient judicial procedures.166 This has been a serious drawback, given that the collecting societies have tended to act like typical regulated entities and thus resist efficient innovation unless forced to do so through judicial amendment of the relevant decrees.167 \nIntriguingly, US courts have effectively accepted this quasi-regulatory role for consent decrees. In US v. BMI, for example, the Second Circuit Court of Appeals, adjudicating on a rate-setting dispute arising from the BMI decree, recognised that the organisation was ‘regulated by court- approved consent decrees’, because of ‘the inherently anticompetitive conditions under which [they] operate’.168 Moreover, to date, in exercis- ing the Tunney Act duty to review settlements in the public interest, no court has rejected a decree as being excessively regulatory in nature. The AT&T consent decree, considered in the preceding chapter, has been described as ‘the ultimate regulatory decree in modern times’,169 yet it was approved with only minor modification.170 The essentially regula- tory nature of the monitoring process under the AT&T decree involved a federal district court judge, the DOJ and the FCC in a complex supervis- ory procedure, which meant that initial judicial approval was ‘only the first chapter of a looming chain novel’171 of supervision that continued until the Telecommunications Act in 1996. Nonetheless, the complexity in practice of administering the AT&T decree did not dissuade public enforcers from embracing regulatory schemes within later consent decrees, or courts from approving such arrangements. For better or worse, consent decrees facilitate the application of antitrust in a strategic manner to pursue market objectives, and in particular to achieve market structures, that would appear to sit, more comfortably, within the regulatory paradigm.", "role": "user" }, { "content": "Consent decrees are used by the federal antitrust authorities\nto conclude civil antitrust actions on a consensual basis\nthe FTC pursues ‘cease-and-desist’ orders\nunder its administrative procedures\nConsent decrees, accordingly, enable\ndefendants to settle litigation through concessions agreed with the government agency.\nFTC decrees can be approved by the FTC Commissioners without additional judicial involvement\nFTC decrees\nthe agency engages in a\nprocess of consultation and public-interest analysis prior to accepting any settlement\nFTC decrees routinely contain a standard clause waiving all rights to seek judicial review, however, meaning that petitions for review are virtually impossible\nWhy would a defendant\nopt against fighting a case, but instead choose to settle by consent decree? Settlement\nprovide considerable benefits\nA key advantage is the procedural economy gains of settlement, in terms of both monetary and institutional resource savings: it is quicker and cheaper for\nprosecutors and defendants to settle than to litigate fully\nthe underlying market problems can be remedied more quickly than where a case is pursued to full trial. Assuming that the public interest is equally well served by correcting market failures\nit may be sensible to prioritise the former under a consent decree over the latter in a drawn-out liability procedure\nThe FTC\nhas an explicit preference for settlement: it aims ‘to secure an effective order – by consent if feasible\nConsent decrees are also easier to enforce if there is reoccurrence of prohibited behaviour, as the government can simply initiate clarification or contempt proceedings\nrather than filing – and proving – a fresh complaint\nA finding of contempt on this basis establishes only that the defendant breached the\ndecree\nsaying nothing about the compatibility of its behaviour with substantive antitrust\nFor defendants, settlement provides a mechanism for managing risk. Settling an antitrust investigation avoids the risk of an adverse holding, while the defendant gains significant control over the remedies imposed\nthe defendant also avoids collateral estoppel in follow-on actions for the same violation. Whereas a final antitrust judgment becomes prima facie evidence of guilt in subsequent\nantitrust litigation, the antitrust rules expressly prohibit collateral estoppel for consent decrees\nmost consent decrees state explicitly that settlement is not an admission of guilt\nThis\nmakes settlement\nattractive. A finding of breach by public enforcers in one jurisdiction may also encourage enforcement activity by authorities in other jurisdictions\nwhich further increases the value of settlement\ndecrees that develop\nnovel theories of antitrust harm\nGiven that\ndecrees contain no findings of liability and thus, formally, establish no\nlaw, such decrees do not contain authoritative statements of antitrust in the same manner as litigated judgments\nconsent decrees are, effectively, contractual bargains\nIt is generally accepted, nonetheless, that ‘[s]ettlements in the shadow of the law reflect the content of the law’.\nThe Court\nemphasising a continuing quasi-judicial function resulting from their inherently judicial nature\nbecause the content of consent decrees is not determined by antitrust alone, such instruments can\nbe used to address anticompetitive behaviour falling outside the established categories of antitrust infringement\nthe principle of freedom of contract mandates that the parties should be free to structure these arrangements however each deems most advantageous\nAlthough not\na rule of law\nconfers greater weight than a merely speculative argument advanced in private litigation. It represents the considered view of the enforcement agency that such conduct violates antitrust and merits enforcement action, and, although the underlying antitrust claim does not receive judicial endorsement, the decree provisions that incorporate the novel case theory require court approval. This ambiguity\nmeans\nprudent firms might be advised to respect the parameters established obliquely by the consent decree\nConsequently, although the novel theory is not antitrust law as such, its inclusion within a consent decree may confer upon it the effect of restricting the commercial freedom of other firms, without any substantive legal basis\nthe underlying theory\nescapes judicial scrutiny and challenge\nproviding ostensibly valid grounds for future enforcement and gaining soft law status as established law\nA policy against settlement by decree\nbest protects the integrity of public enforcement and substantive antitrust law\nthe hybridised law-contract status of consent decrees, and the fact that decrees are largely disconnected from the constraints of conventional antitrust doctrine, contributes to\nantitrust settlements as a flexible tool for bureaucratic market governance, which is distinguishable from the legalistic model of antitrust enforcement. The content of\nremedies can differ markedly from typical\nantitrust remedies\nRemedies not infrequently go beyond the scope of\nantitrust law\nthe objective is not to address discrete instances of anticompetitive behaviour, but rather to improve the functioning of the market\ngenerally. Decree provisions may place defendants under affirmative duties that require on-going monitoring to ensure compliance, and so many decrees also establish on-going judicial or governmental supervision mechanisms\nUS courts have effectively accepted this quasi-regulatory role for consent decrees\nconsent decrees facilitate the application of antitrust in a strategic manner to pursue market objectives\nand in particular to achieve market structures", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: It solves better, does not modify antitrust law, AND concessions to appease regulators would go beyond the plan in an effort to stave off binding rulings.", "role": "system" }, { "content": "Consent decrees are used by the federal antitrust authorities\nto conclude civil antitrust actions on a consensual basis\nthe FTC pursues ‘cease-and-desist’ orders\nunder its administrative procedures\nConsent decrees, accordingly, enable\ndefendants to settle litigation through concessions agreed with the government agency.\nFTC decrees can be approved by the FTC Commissioners without additional judicial involvement\nFTC decrees\nthe agency engages in a\nprocess of consultation and public-interest analysis prior to accepting any settlement\nFTC decrees routinely contain a standard clause waiving all rights to seek judicial review, however, meaning that petitions for review are virtually impossible\nWhy would a defendant\nopt against fighting a case, but instead choose to settle by consent decree? Settlement\nprovide considerable benefits\nA key advantage is the procedural economy gains of settlement, in terms of both monetary and institutional resource savings: it is quicker and cheaper for\nprosecutors and defendants to settle than to litigate fully\nthe underlying market problems can be remedied more quickly than where a case is pursued to full trial. Assuming that the public interest is equally well served by correcting market failures\nit may be sensible to prioritise the former under a consent decree over the latter in a drawn-out liability procedure\nThe FTC\nhas an explicit preference for settlement: it aims ‘to secure an effective order – by consent if feasible\nConsent decrees are also easier to enforce if there is reoccurrence of prohibited behaviour, as the government can simply initiate clarification or contempt proceedings\nrather than filing – and proving – a fresh complaint\nA finding of contempt on this basis establishes only that the defendant breached the\ndecree\nsaying nothing about the compatibility of its behaviour with substantive antitrust\nFor defendants, settlement provides a mechanism for managing risk. Settling an antitrust investigation avoids the risk of an adverse holding, while the defendant gains significant control over the remedies imposed\nthe defendant also avoids collateral estoppel in follow-on actions for the same violation. Whereas a final antitrust judgment becomes prima facie evidence of guilt in subsequent\nantitrust litigation, the antitrust rules expressly prohibit collateral estoppel for consent decrees\nmost consent decrees state explicitly that settlement is not an admission of guilt\nThis\nmakes settlement\nattractive. A finding of breach by public enforcers in one jurisdiction may also encourage enforcement activity by authorities in other jurisdictions\nwhich further increases the value of settlement\ndecrees that develop\nnovel theories of antitrust harm\nGiven that\ndecrees contain no findings of liability and thus, formally, establish no\nlaw, such decrees do not contain authoritative statements of antitrust in the same manner as litigated judgments\nconsent decrees are, effectively, contractual bargains\nIt is generally accepted, nonetheless, that ‘[s]ettlements in the shadow of the law reflect the content of the law’.\nThe Court\nemphasising a continuing quasi-judicial function resulting from their inherently judicial nature\nbecause the content of consent decrees is not determined by antitrust alone, such instruments can\nbe used to address anticompetitive behaviour falling outside the established categories of antitrust infringement\nthe principle of freedom of contract mandates that the parties should be free to structure these arrangements however each deems most advantageous\nAlthough not\na rule of law\nconfers greater weight than a merely speculative argument advanced in private litigation. It represents the considered view of the enforcement agency that such conduct violates antitrust and merits enforcement action, and, although the underlying antitrust claim does not receive judicial endorsement, the decree provisions that incorporate the novel case theory require court approval. This ambiguity\nmeans\nprudent firms might be advised to respect the parameters established obliquely by the consent decree\nConsequently, although the novel theory is not antitrust law as such, its inclusion within a consent decree may confer upon it the effect of restricting the commercial freedom of other firms, without any substantive legal basis\nthe underlying theory\nescapes judicial scrutiny and challenge\nproviding ostensibly valid grounds for future enforcement and gaining soft law status as established law\nA policy against settlement by decree\nbest protects the integrity of public enforcement and substantive antitrust law\nthe hybridised law-contract status of consent decrees, and the fact that decrees are largely disconnected from the constraints of conventional antitrust doctrine, contributes to\nantitrust settlements as a flexible tool for bureaucratic market governance, which is distinguishable from the legalistic model of antitrust enforcement. The content of\nremedies can differ markedly from typical\nantitrust remedies\nRemedies not infrequently go beyond the scope of\nantitrust law\nthe objective is not to address discrete instances of anticompetitive behaviour, but rather to improve the functioning of the market\ngenerally. Decree provisions may place defendants under affirmative duties that require on-going monitoring to ensure compliance, and so many decrees also establish on-going judicial or governmental supervision mechanisms\nUS courts have effectively accepted this quasi-regulatory role for consent decrees\nconsent decrees facilitate the application of antitrust in a strategic manner to pursue market objectives\nand in particular to achieve market structures", "role": "user" }, { "content": "federal antitrust authorities\nconclude\nantitrust\nconsensual basis\nFTC\n‘cease-and-desist’ orders\nadministrative procedures\ndefendants\nsettle litigation\nconcessions agreed\ngovernment\nFTC\nwithout additional judicial involvement\nFTC\nconsultation\npublic-interest analysis\nroutinely\nstandard clause waiv\nrights to seek judicial review\npetitions\nreview\nimpossible\nWhy\nsettle\n?\nconsiderable benefits\nkey advantage\nprocedural economy gains of settlement\nmonetary\ninstitutional\nquicker\ncheaper\nprosecutors and defendants\nsettle\nlitigate fully\nmarket problems\nmore quickly\npursued to full trial\nequally\ncorrecting market failures\nprioritise the former\nconsent decree\nlatter\ndrawn-out liability procedure\nexplicit preference\nconsent if feasible\neasier to enforce\nreoccurrence\nclarification\ncontempt proceedings\nrather\nfresh complaint\nbreached the\ndecree\nnot\ncompatibility of its behaviour with substantive antitrust\ndefendants\nmanaging risk\nSettling\navoids\nadverse holding\nsignificant control\nremedies imposed\nalso\ncollateral estoppel\nfollow-on actions\nsame violation\nfinal\nprima facie ev\nof guilt\nsubsequent\ndecree\nexplicitly\nnot an admission of guilt\nattractive\nother\ns\nfurther\ndevelop\nnovel theories of antitrust harm\nGiven\nno findings of liability\nformally\nno\nlaw\nnot\nauthoritative statements of antitrust\nlitigated judgments\ncontractual bargains\ngenerally accepted\nshadow of the law\ncontent\nCourt\ncontinuing quasi-judicial function\njudicial nature\nnot determined by antitrust alone\naddress anticompetitive behaviour falling outside the established categories of antitrust infringement\nfreedom of contract\nhowever each deems most advantageous\nnot\nrule of law\ngreater\nmerely speculative argument\nprivate litigation\nconsidered view of the enforcement agency\nviolates antitrust\nmerits enforcement action\njudicial\ndecree provisions\nincorporate\nambiguity\nprudent firms\nrespect the parameters established obliquely by the consent decree\nthough\nnot\nlaw as such\ninclusion within a consent decree\nconfer upon it\neffect\nrestrict\nother firms\nsubstantive legal basis\nescapes judicial scrutiny\nchallenge\nostensibly valid grounds\nfuture enforcement\nsoft law status\nestablished law\nby decree\nbest protects\nintegrity of public enforcement\nsubstantive antitrust law\nhybridised law-contract status\ndisconnected\nconstraints of conventional antitrust doctrine\nflexible tool\nbureaucratic market governance\ndistinguishable from the legalistic model of antitrust enforcement\ncontent\nremedies\ndiffer markedly\ntypical\nbeyond the scope of\nantitrust law\nobjective\nnot\ndiscrete instances\nimprove the functioning of the market\ngenerally\naffirmative duties\non-going monitoring to ensure compliance\njudicial\ngovernmental supervision mechanisms\nUS courts\neffectively accepted\nfacilitate\nstrategic manner\npursue market objectives\nachieve market structures", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: It solves better, does not modify antitrust law, AND concessions to appease regulators would go beyond the plan in an effort to stave off binding rulings.\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "Consent decrees are used by the federal antitrust authorities\nto conclude civil antitrust actions on a consensual basis\nthe FTC pursues ‘cease-and-desist’ orders\nunder its administrative procedures\nConsent decrees, accordingly, enable\ndefendants to settle litigation through concessions agreed with the government agency.\nFTC decrees can be approved by the FTC Commissioners without additional judicial involvement\nFTC decrees\nthe agency engages in a\nprocess of consultation and public-interest analysis prior to accepting any settlement\nFTC decrees routinely contain a standard clause waiving all rights to seek judicial review, however, meaning that petitions for review are virtually impossible\nWhy would a defendant\nopt against fighting a case, but instead choose to settle by consent decree? Settlement\nprovide considerable benefits\nA key advantage is the procedural economy gains of settlement, in terms of both monetary and institutional resource savings: it is quicker and cheaper for\nprosecutors and defendants to settle than to litigate fully\nthe underlying market problems can be remedied more quickly than where a case is pursued to full trial. Assuming that the public interest is equally well served by correcting market failures\nit may be sensible to prioritise the former under a consent decree over the latter in a drawn-out liability procedure\nThe FTC\nhas an explicit preference for settlement: it aims ‘to secure an effective order – by consent if feasible\nConsent decrees are also easier to enforce if there is reoccurrence of prohibited behaviour, as the government can simply initiate clarification or contempt proceedings\nrather than filing – and proving – a fresh complaint\nA finding of contempt on this basis establishes only that the defendant breached the\ndecree\nsaying nothing about the compatibility of its behaviour with substantive antitrust\nFor defendants, settlement provides a mechanism for managing risk. Settling an antitrust investigation avoids the risk of an adverse holding, while the defendant gains significant control over the remedies imposed\nthe defendant also avoids collateral estoppel in follow-on actions for the same violation. Whereas a final antitrust judgment becomes prima facie evidence of guilt in subsequent\nantitrust litigation, the antitrust rules expressly prohibit collateral estoppel for consent decrees\nmost consent decrees state explicitly that settlement is not an admission of guilt\nThis\nmakes settlement\nattractive. A finding of breach by public enforcers in one jurisdiction may also encourage enforcement activity by authorities in other jurisdictions\nwhich further increases the value of settlement\ndecrees that develop\nnovel theories of antitrust harm\nGiven that\ndecrees contain no findings of liability and thus, formally, establish no\nlaw, such decrees do not contain authoritative statements of antitrust in the same manner as litigated judgments\nconsent decrees are, effectively, contractual bargains\nIt is generally accepted, nonetheless, that ‘[s]ettlements in the shadow of the law reflect the content of the law’.\nThe Court\nemphasising a continuing quasi-judicial function resulting from their inherently judicial nature\nbecause the content of consent decrees is not determined by antitrust alone, such instruments can\nbe used to address anticompetitive behaviour falling outside the established categories of antitrust infringement\nthe principle of freedom of contract mandates that the parties should be free to structure these arrangements however each deems most advantageous\nAlthough not\na rule of law\nconfers greater weight than a merely speculative argument advanced in private litigation. It represents the considered view of the enforcement agency that such conduct violates antitrust and merits enforcement action, and, although the underlying antitrust claim does not receive judicial endorsement, the decree provisions that incorporate the novel case theory require court approval. This ambiguity\nmeans\nprudent firms might be advised to respect the parameters established obliquely by the consent decree\nConsequently, although the novel theory is not antitrust law as such, its inclusion within a consent decree may confer upon it the effect of restricting the commercial freedom of other firms, without any substantive legal basis\nthe underlying theory\nescapes judicial scrutiny and challenge\nproviding ostensibly valid grounds for future enforcement and gaining soft law status as established law\nA policy against settlement by decree\nbest protects the integrity of public enforcement and substantive antitrust law\nthe hybridised law-contract status of consent decrees, and the fact that decrees are largely disconnected from the constraints of conventional antitrust doctrine, contributes to\nantitrust settlements as a flexible tool for bureaucratic market governance, which is distinguishable from the legalistic model of antitrust enforcement. The content of\nremedies can differ markedly from typical\nantitrust remedies\nRemedies not infrequently go beyond the scope of\nantitrust law\nthe objective is not to address discrete instances of anticompetitive behaviour, but rather to improve the functioning of the market\ngenerally. Decree provisions may place defendants under affirmative duties that require on-going monitoring to ensure compliance, and so many decrees also establish on-going judicial or governmental supervision mechanisms\nUS courts have effectively accepted this quasi-regulatory role for consent decrees\nconsent decrees facilitate the application of antitrust in a strategic manner to pursue market objectives\nand in particular to achieve market structures", "role": "user" }, { "content": "Consent decrees\nconclude\nantitrust actions on a consensual basis\nthrough concessions agreed with\ngovernment\neasier to enforce\nas\ngovernment can\ninitiate\ncontempt proceedings\nrather than\na fresh complaint\nestablishes\nthe defendant breached the\ndecree\nnot\nsubstantive antitrust\nFor defendants, settlement\navoids\nrisk of\nadverse holding\ngains\ncontrol over\nremedies\navoids collateral estoppel\ndecree\nis not\nadmission of guilt\nfinding of breach\nin one jurisdiction\nencourage enforcement\nin other\ns\ndecrees\ndevelop\nnovel theories of antitrust\nformally, establish no\nlaw\nprudent firms\nrespect\nparameters established\nby the\ndecree\nthough the\ntheory is not\nlaw as such\nthe effect\nrestrict\nother firms,\ngain\n soft law status\nRemedies\ngo beyond the scope of\nantitrust law\nto improve\nthe market", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 2) COURTS ARE WORSE---consent decrees solve", "role": "system" }, { "content": "A. The Legal Process Story\nLegal process jurisprudence depends first and foremost on a process of reasoned elaboration by courts.166 Legal process jurisprudence works very well to explain the past of antitrust, why the agencies have grabbed law-making power, and why the U.S. Supreme Court has failed to formulate appropriate rules and draft decisions based on reasoned elaboration to produce a body of law that is coherent, forthright in its policy goals, and capable of application by the lower courts and private persons in structuring their behavior in the real world.167\nThe story, however, cannot be found in the seminal legal process text itself. To the extent that Hart and Sacks considered the work of agencies in their book, The Legal Process,168 they sought to have agencies primarily behave like courts. For example, a substantial section of The Legal Process focuses on the work of the FTC.169 This section presents an actual FTC opinion, critiques it, and redrafts a model opinion that better incorporates legal process values until it resembles a common law judicial opinion.170\nProfessor Lon Fuller's amplification of the legal process model better explains the withdrawal of the courts from law making in this area. In his classic article The Forms and Limits of Adjudication,171 Fuller discusses how the courts are ill-equipped to handle *1419 what he termed “polycentric” decision-making involving the balancing of multiple and incommensurable values. Professor Fuller and the substantial subsequent literature addressing his work have noted the migration of polycentric decisions away from the courts towards the use of negotiation, specialized decision-makers, managerial techniques, informal bureaucracies, and other non-adjudicatory solutions.172 As others have noted, the courts are ill-equipped to handle antitrust disputes requiring industry reorganization or similar remedies.173 Similarly, Fuller noted that while creating and enforcing the rules of the market were an appropriate subject for adjudication, determining the outcome of the market process was not.174\nThere is another strain of later legal process scholarship begun by Professor Abraham Chayes that sought to defend a role for court adjudication of complex public law problems through incorporation of managerial techniques, scientific experts, and special masters, to better grapple with polycentric decision-making that was institutionally ill-suited for traditional adjudication.175 Although highly influential in civil rights litigation and other institutional *1420 reform litigation, this alternative way to restore the centrality of courts has not been directly pursued to any significant degree in the antitrust field.176\nThis toleration for the migration of law-making away from the courts is one of the most intriguing, but unexplored, aspects of the legal process movement. Even if Fuller and Chayes disagreed about the wisdom of courts taking on polycentric social questions, neither felt any need to address these questions in antitrust policy. For Fuller, any polycentric question was inappropriate for litigation. For Chayes, only polycentric public law issues deserved the attention of the federal courts. The pressing public law issues of the day were civil rights, school desegregation, and prison reform. While antitrust has characteristics of both public and private law, it is clear that these were not the pressing public law issues of the day. Finally, from Hart and Sacks' point of view, an administrative agency acting like a court, but with additional substantive expertise, could handle most antitrust questions just fine.\nThere was simply no strong legal process reason to care strongly or critically think about the evolution of antitrust in this era. A decent argument could be made that in the 1940s and 1950s the growth of per se rules meant that antitrust litigation was far less polycentric than at any time in its history. To the extent that polycentricity could not be avoided, no leading legal process figure had a strong interest to reform the litigation process to deal with these issues. Even if the courts were not competent in this area, most agreed on institutional competence grounds that these were matters best left to administrative, legislative, or market solutions.\nThe basic legal process story as modified by Fuller, Chayes, and others has great explanatory and predictive power when applied to antitrust law-making. For decades the courts struggled with the process of reasoned elaboration when applied to such diverse antitrust questions as the legality of all manner of agreements *1421 affecting competition, monopolization and attempted monopolization, mergers, acquisitions, and joint ventures. As Professor William Reynolds and I discussed in an earlier article, only the per se prohibition against price fixing among competitors can be deemed a true success from a legal process perspective.177 The rest of antitrust is characterized by obfuscation, incoherence, or outright abandonment of the field.178\nIt is striking how the courts have not merely tolerated, but actively encouraged, the migration of antitrust law-making to the agencies.179 Federal judges have several compelling reasons to dislike antitrust cases. First, the typical federal judge has very little experience or interest in this area of the law. The usual background for a federal judge is either government service as a criminal prosecutor or private practice with strong political ties to a senatorial or executive branch sponsor. An interest or specialty in antitrust is rarely compatible with either track. Second, most civil, and some criminal, antitrust cases are lengthy affairs with unending discovery, contentious lawyers, complicated facts, and dependent on sophisticated economic analysis for their resolution. This puts a substantial burden on district court judges who must cope with a very small staff that has an average caseload of several hundred cases, including criminal cases which by law are subject to the Speedy Trial Act,180 pushing all civil cases to the end of the line. A massive time-consuming antitrust case further delays the ability of the court to dispose of pending and newly assigned matters and is rarely a satisfactory excuse to irate litigants or supervising judges when a judge falls behind. The judge must either effectively dedicate a law clerk full-time to the behemoth antitrust case,181 which itself forces the remaining clerks and staff to handle the entire remainder of the docket, or draw on normally scarce resources to somehow obtain additional staff.182\n*1422 The result is unlike other areas of complex litigation such as mass torts or civil rights cases. The judges are not inclined to grasp the public policy spotlight, and normally are eager to leave the hard decisions to the expert bureaucrats.\nIt is hardly surprising that the U.S. Supreme Court has proved incapable of solving the riddles of such areas of the law as the meaning of the rule of reason (virtually everything about competitive purpose and effect is relevant), monopolization (characterized by vague platitudes), or merger and acquisitions (refusal to take any cases). Each of these so-called rules is the embodiment of the type of polycentricity discussed by Fuller as the stuff of which courts must fail.\nConsider first the rule of reason, the bedrock of modern antitrust. First adopted in the 1911 Standard Oil Co. v. United States decision,183 it was explained most fully by Justice Brandeis in the 1918 case, Board of Trade v. United States.184 Justice Brandeis stated:\nThe true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be obtained, are all relevant facts.185\nIn short, it doesn't get any more polycentric than this!\nSimilarly, in the area of monopolization, the U.S. Supreme Court has struggled for decades to create tests to differentiate between praiseworthy hard competition and unlawful exclusionary conduct. In 1986, Justice Stevens sought to unify and modernize the doctrine in this area and instructed courts and juries to decide these issues by judging whether a valid business justification *1423 existed for the defendant's conduct.186 This test has proved to be no more workable than its predecessors. While society continues to struggle in differentiating between enlightened technological visionaries and evil rapacious monopolists, it is quite significant that while once it was the courts which decided this question for John D. Rockefeller and other barons of his day, today the fate of Bill Gates so far has been determined through complex negotiation with the Justice Department, with both sides invoking the court to protect their deal from outside interference.\nFinally, the standards for determining the legality of mergers involve the balancing of so many incommensurables, that no rational court would want to be in this business. The U.S. Supreme Court's attempt at guidance came in the Brown Shoe Co. v. United States187 decision where it described the legislative history of this provision as having no specific tests or definitions in mind for the legality of mergers. Congress nonetheless wanted courts to: (1) consider the rising tide of economic concentration in the country; (2) not be limited by the prior case law under the Sherman Act or the technical deficiencies of prior versions of the Clayton Act; (3) to create an effective tool for preventing all mergers having demonstrable anticompetitive effects; (4) not prohibit the stimulation to competition that might flow from particular mergers; (5) view mergers functionally in the context of its particular industry; (6) consider probabilities, not certainties; and (7) consider the effect of the loss of local control over business activity.188\nIf these types of polycentric decisions calling for consideration of a wide variety of economic and societal interests are beyond the grasp of courts, then perhaps it was inevitable that specialized agencies and informal bureaucracies arose to deal with the fact that somebody has to apply this body of law on a day-to-day basis. The legal process lens suggests that this migration away from the courts was not only inevitable, but desirable as well, since most antitrust enforcement inherently calls for a type of decision-making that plays to the weaknesses of a court-centered common law type approach. Instead of ineffective and uninterested courts, expert administrators can bargain with their private *1424 sector counterparts and reach mutually agreeable solutions in the form of business review letters, advisory opinions, consent decrees, and more informal sources of clearance.189 Whether or not this is desirable, this world is already here except for the shrinking set of per se offenses and the most blatantly anticompetitive mergers where the parties shun the opportunity to work things out with the antitrust regulators.190\nNowhere is this shift more visible than in the docket of the U.S. Supreme Court where antitrust has virtually disappeared in recent years. In 1994 and 1995, the Court heard no antitrust cases at all. In 1996, the Court heard one case which dealt with an obscure aspect of the relationship between antitrust and labor law.191 Between 1990 and 1995, there were only seven dissents from the denial of certiorari in antitrust cases, all by Justice White, joined by one other Justice in one case, and none since 1992.192", "role": "user" }, { "content": "Legal process jurisprudence works\nto explain\nwhy the\nCourt has failed to formulate appropriate rules and draft decisions based on reasoned elaboration to produce a body of law that is coherent, forthright in its\ngoals, and capable of application by\nlower courts and private persons\ncourts are ill-equipped to handle\n“polycentric” decision-making involving the balancing of multiple\nincommensurable values\nlit\nnoted the migration of polycentric decisions away from the courts towards the use of negotiation, specialized decision-makers, managerial techniques, informal bureaucracies\nnon-adjudicatory solutions\ncourts are ill-equipped to handle antitrust disputes requiring industry reorganization or similar remedies\nwhile creating and enforcing the rules of the market were an appropriate subject for adjudication, determining the outcome of the market process was not\nAlthough highly influential in civil rights\nand other institutional\nreform\nthe centrality of courts has not been directly pursued to any significant degree in\nantitrust\nFor decades the courts struggled with\nreasoned elaboration when applied to\ndiverse antitrust questions\naffecting competition, monopolization\nmergers, acquisitions, and joint ventures\nonly\nper se prohibition\ncan be deemed a true success from a\nprocess perspective\nThe rest of antitrust is characterized by obfuscation, incoherence, or outright abandonment\nFederal judges have\ndislike antitrust cases\nthe typical\njudge has\nlittle experience or interest in this area\nmost civil, and some criminal, antitrust cases are lengthy\nwith unending discovery, contentious lawyers, complicated facts, and dependent on sophisticated economic analysis\nThis puts a substantial burden on district court judges who must cope with a very small staff that has an average caseload of several hundred cases, including criminal cases which by law are subject to the Speedy Trial Act\npushing all civil cases to the end of the line. A massive time-consuming antitrust case further delays the ability of the court to dispose of pending and newly assigned matters and is rarely a satisfactory excuse to irate litigants or supervising judges when a judge falls behind. The judge must either effectively dedicate a law clerk full-time to the behemoth antitrust case\nwhich\nforces the remaining clerks and staff to handle the entire remainder of the docket, or draw on\nscarce resources\nThe result is unlike other areas of complex litigation\njudges are\neager to leave\ndecisions to the expert bureaucrats\nthe\nSupreme Court has proved incapable of solving the riddles of\nthe meaning of the rule of reason\nvirtually everything\nis relevant\nmonopolization\ncharacterized by vague platitudes\nor merger\ns\nrefusal to take any cases\nEach of these so-called rules is the embodiment of the\npolycentricity\nas the stuff of which courts must fail\nthe rule of reason\ncourt\nconsider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be obtained, are all relevant facts.\nit doesn't get any more polycentric than this!\nin\nmonopolization, the\nCourt has struggled for decades to create tests to differentiate\npraiseworthy hard competition and unlawful exclusionary conduct\nthe standards for determining the legality of mergers involve the balancing of so many incommensurables, that no rational court would want to be in this business\nspecialized agencies\narose to deal with the fact that somebody has to apply this body of law on a day-to-day basis.\nthis migration away from\ncourts was not only inevitable, but desirable\nsince most antitrust enforcement inherently calls for a type of decision-making that plays to the weaknesses of a court-centered common law type approach. Instead of ineffective and uninterested courts, expert administrators can bargain with\nprivate\ncounterparts and reach mutually agreeable solutions in the form of\nconsent decrees\nthis world is already here\nin the docket of the\nSupreme Court\nantitrust has virtually disappeared", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 2) COURTS ARE WORSE---consent decrees solve", "role": "system" }, { "content": "Legal process jurisprudence works\nto explain\nwhy the\nCourt has failed to formulate appropriate rules and draft decisions based on reasoned elaboration to produce a body of law that is coherent, forthright in its\ngoals, and capable of application by\nlower courts and private persons\ncourts are ill-equipped to handle\n“polycentric” decision-making involving the balancing of multiple\nincommensurable values\nlit\nnoted the migration of polycentric decisions away from the courts towards the use of negotiation, specialized decision-makers, managerial techniques, informal bureaucracies\nnon-adjudicatory solutions\ncourts are ill-equipped to handle antitrust disputes requiring industry reorganization or similar remedies\nwhile creating and enforcing the rules of the market were an appropriate subject for adjudication, determining the outcome of the market process was not\nAlthough highly influential in civil rights\nand other institutional\nreform\nthe centrality of courts has not been directly pursued to any significant degree in\nantitrust\nFor decades the courts struggled with\nreasoned elaboration when applied to\ndiverse antitrust questions\naffecting competition, monopolization\nmergers, acquisitions, and joint ventures\nonly\nper se prohibition\ncan be deemed a true success from a\nprocess perspective\nThe rest of antitrust is characterized by obfuscation, incoherence, or outright abandonment\nFederal judges have\ndislike antitrust cases\nthe typical\njudge has\nlittle experience or interest in this area\nmost civil, and some criminal, antitrust cases are lengthy\nwith unending discovery, contentious lawyers, complicated facts, and dependent on sophisticated economic analysis\nThis puts a substantial burden on district court judges who must cope with a very small staff that has an average caseload of several hundred cases, including criminal cases which by law are subject to the Speedy Trial Act\npushing all civil cases to the end of the line. A massive time-consuming antitrust case further delays the ability of the court to dispose of pending and newly assigned matters and is rarely a satisfactory excuse to irate litigants or supervising judges when a judge falls behind. The judge must either effectively dedicate a law clerk full-time to the behemoth antitrust case\nwhich\nforces the remaining clerks and staff to handle the entire remainder of the docket, or draw on\nscarce resources\nThe result is unlike other areas of complex litigation\njudges are\neager to leave\ndecisions to the expert bureaucrats\nthe\nSupreme Court has proved incapable of solving the riddles of\nthe meaning of the rule of reason\nvirtually everything\nis relevant\nmonopolization\ncharacterized by vague platitudes\nor merger\ns\nrefusal to take any cases\nEach of these so-called rules is the embodiment of the\npolycentricity\nas the stuff of which courts must fail\nthe rule of reason\ncourt\nconsider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be obtained, are all relevant facts.\nit doesn't get any more polycentric than this!\nin\nmonopolization, the\nCourt has struggled for decades to create tests to differentiate\npraiseworthy hard competition and unlawful exclusionary conduct\nthe standards for determining the legality of mergers involve the balancing of so many incommensurables, that no rational court would want to be in this business\nspecialized agencies\narose to deal with the fact that somebody has to apply this body of law on a day-to-day basis.\nthis migration away from\ncourts was not only inevitable, but desirable\nsince most antitrust enforcement inherently calls for a type of decision-making that plays to the weaknesses of a court-centered common law type approach. Instead of ineffective and uninterested courts, expert administrators can bargain with\nprivate\ncounterparts and reach mutually agreeable solutions in the form of\nconsent decrees\nthis world is already here\nin the docket of the\nSupreme Court\nantitrust has virtually disappeared", "role": "user" }, { "content": "Legal process jurisprudence\nCourt\nfailed\nappropriate rules\nreasoned elaboration\ncoherent\nforthright\ngoals\ncapable of application\nlower courts\nprivate persons\nill-equipped\n“polycentric”\nmultiple\nincommensurable values\nlit\nmigration\naway\nnegotiation\ndecision-makers\nmanagerial\nbureaucracies\nnon-adjudicatory\nill-equipped\nantitrust disputes\nindustry reorganization\nsimilar remedies\noutcome of the market process\nnot\ncivil rights\ndecades\nstruggled\nreasoned elaboration\ndiverse antitrust questions\ncompetition\nmonopolization\nmergers\nacquisitions\njoint ventures\nper se prohibition\ntrue success\nrest\nobfuscation, incoherence, or outright abandonment\ndislike\nlittle experience\ninterest\nlengthy\nunending discovery\nlawyers\nfacts\nsophisticated economic analysis\nburden\nvery small staff\ncaseload\nseveral hundred cases\ncriminal\nSpeedy Trial Act\npush\nall civil\nend of the line\nmassive time-consuming antitrust\ndelays\npending\nnewly assigned matters\nrarely a satisfactory excuse to irate litigants\nsupervising judges\neffectively dedicate a\nclerk full-time\nbehemoth antitrust case\nforces\nremaining\nentire remainder of the docket\nscarce resources\nunlike other areas of complex litigation\neager\nexpert bureaucrats\nSupreme\nincapable\nriddles\nmeaning of the rule of reason\neverything\nis relevant\nmonopolization\nvague platitudes\nmerger\ns\ntake any cases\npolycentricity\nmust fail\nrule of reason\nall relevant facts\ndoesn't get any more polycentric than this!\nmonopolization\nstruggled\ndecades\ndifferentiate\nhard competition\nunlawful exclusionary conduct\nmergers\nso many incommensurables\nno rational court would want to be in this business\nspecialized agencies\ndeal\nsomebody\nnot only inevitable, but desirable\nmost antitrust enforcement inherently\nweaknesses\ncourt-centered common law type approach\nineffective\nuninterested courts\nbargain with\nprivate\ncounterparts\nmutually agreeable solutions\nconsent decrees\nalready here\nSupreme Court\nvirtually disappeared", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 2) COURTS ARE WORSE---consent decrees solve\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "Legal process jurisprudence works\nto explain\nwhy the\nCourt has failed to formulate appropriate rules and draft decisions based on reasoned elaboration to produce a body of law that is coherent, forthright in its\ngoals, and capable of application by\nlower courts and private persons\ncourts are ill-equipped to handle\n“polycentric” decision-making involving the balancing of multiple\nincommensurable values\nlit\nnoted the migration of polycentric decisions away from the courts towards the use of negotiation, specialized decision-makers, managerial techniques, informal bureaucracies\nnon-adjudicatory solutions\ncourts are ill-equipped to handle antitrust disputes requiring industry reorganization or similar remedies\nwhile creating and enforcing the rules of the market were an appropriate subject for adjudication, determining the outcome of the market process was not\nAlthough highly influential in civil rights\nand other institutional\nreform\nthe centrality of courts has not been directly pursued to any significant degree in\nantitrust\nFor decades the courts struggled with\nreasoned elaboration when applied to\ndiverse antitrust questions\naffecting competition, monopolization\nmergers, acquisitions, and joint ventures\nonly\nper se prohibition\ncan be deemed a true success from a\nprocess perspective\nThe rest of antitrust is characterized by obfuscation, incoherence, or outright abandonment\nFederal judges have\ndislike antitrust cases\nthe typical\njudge has\nlittle experience or interest in this area\nmost civil, and some criminal, antitrust cases are lengthy\nwith unending discovery, contentious lawyers, complicated facts, and dependent on sophisticated economic analysis\nThis puts a substantial burden on district court judges who must cope with a very small staff that has an average caseload of several hundred cases, including criminal cases which by law are subject to the Speedy Trial Act\npushing all civil cases to the end of the line. A massive time-consuming antitrust case further delays the ability of the court to dispose of pending and newly assigned matters and is rarely a satisfactory excuse to irate litigants or supervising judges when a judge falls behind. The judge must either effectively dedicate a law clerk full-time to the behemoth antitrust case\nwhich\nforces the remaining clerks and staff to handle the entire remainder of the docket, or draw on\nscarce resources\nThe result is unlike other areas of complex litigation\njudges are\neager to leave\ndecisions to the expert bureaucrats\nthe\nSupreme Court has proved incapable of solving the riddles of\nthe meaning of the rule of reason\nvirtually everything\nis relevant\nmonopolization\ncharacterized by vague platitudes\nor merger\ns\nrefusal to take any cases\nEach of these so-called rules is the embodiment of the\npolycentricity\nas the stuff of which courts must fail\nthe rule of reason\ncourt\nconsider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be obtained, are all relevant facts.\nit doesn't get any more polycentric than this!\nin\nmonopolization, the\nCourt has struggled for decades to create tests to differentiate\npraiseworthy hard competition and unlawful exclusionary conduct\nthe standards for determining the legality of mergers involve the balancing of so many incommensurables, that no rational court would want to be in this business\nspecialized agencies\narose to deal with the fact that somebody has to apply this body of law on a day-to-day basis.\nthis migration away from\ncourts was not only inevitable, but desirable\nsince most antitrust enforcement inherently calls for a type of decision-making that plays to the weaknesses of a court-centered common law type approach. Instead of ineffective and uninterested courts, expert administrators can bargain with\nprivate\ncounterparts and reach mutually agreeable solutions in the form of\nconsent decrees\nthis world is already here\nin the docket of the\nSupreme Court\nantitrust has virtually disappeared", "role": "user" }, { "content": "the\nCourt\nfailed to formulate\nrules\ncoherent, forthright\nand capable of application by\nlower courts and private persons\njudges have\nlittle experience or interest\ncases are lengthy\nand\nburden\nsmall staff\nspecialized agencies\nnot only inevitable, but desirable\nsince\nantitrust\nplays to\nweaknesses of\ncourt\nlaw\nInstead\nadministrators\nbargain\nand reach mutually agreeable\nconsent decrees", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 1) SIGNAL---it’s treated as binding and precedential, even though it’s not---particularly for the FTC", "role": "system" }, { "content": "C. Creation Through Persuasion and Precedent\nWhile consent decrees may develop law through their recurring content or their entry as judgments, the idea that they may directly bind or affect future court decisions is much more controversial. In part, this reaction reflects a fundamental inconsistency between the norms involved: the power of an earlier judicial opinion to persuade or bind a future decision rests in part on *720 its reasoning and rationale, while a consent decree reflects the intent of the settling parties without necessarily offering an explicit ratio in the naked text of the decree. In a way, honoring a prior consent decree judgment as persuasive or binding is like reading a contract to find a narrative explanation. The two types of documents serve fundamentally different purposes. To allow settling parties to consensually create judgments that affect judicial consideration of future disputes also raises the specters of collusion, manipulation, and loss of judicial control over the adjudicative function.\nDespite these concerns, consent decrees may nonetheless generate legally relevant rules, principles, and precedents in constrained and varying ways. Consent judgments do not impose a uniform legally constraining effect on future opinions in a rigid and predetermined way. Like the common law process itself, consent judgments can affect or bind future judgments along a spectrum of persuasion and force that turns on the individual circumstances and history of each case. In this regard, consent decrees can have degrees of impact that vary from persuasive effect, through the statement of useful principles, to encapsulations of a legal rule, to binding effects of precedent applied through stare decisis, to direct compulsory effects on parties, to the original decree through the law of the case doctrine or judicial estoppel. In a sense, the power of the consent judgment escalates gradually from broad yet diffuse effect (persuasion) to tight and compulsory (preclusion, judicial estoppel, and law of the case).\nTo draw useful distinctions between the varying effects of consent decrees on subsequent judicial considerations, precision in vocabulary helps to avoid conflation and confusion. At the lowest level, a judgment may have persuasive value if it offers insights and relevant rules for a decision that a future court finds wise or helpful. Persuasive prior decisions, however, obviously have no binding effect and cannot compel deference from future decision-makers. By contrast, a precedential opinion can require a court to apply its holding to future litigants through the operation of stare decisis. The force of this compulsion operates in both horizontal and vertical fashion: a lower court must follow the relevant precedential holdings of a superior court (vertical), while a court may constrain its decision in a current case by looking to its prior rulings to assure consistency and fairness in reaching a similar result for similarly positioned cases (horizontal).125 Notably, this distinction *721 neither exerts precedential effects on sister courts at an equivalent level, nor grants precedential power to federal district court decisions other than horizontal deference to that court's own prior decisions. The operation of precedent and stare decisis has become regularized to an extent at the appellate level in the federal judiciary through the promulgation of formal rules by the appellant courts.126 Some federal appellate courts use these rules to guide their discretion in choosing whether their opinions will formally have precedential or stare decisis effect.127\n1. Preclusion\nFor the parties who directly enter into them and lodge them with the court, consent decree judgments function as wholly binding judicial decrees. In this untroubling context, the lodging parties face the same preclusive and binding effects of any other judgment issued by the court in their case. The entry of a consent decree judgment would impose issue preclusion, res judicata, and the law of the case consequences if they wished to relitigate their concerns in the future.128\nThis sweeping statement bears some important modulations. As noted earlier, the scope and preclusive effect of a consent judgment turns to an *722 important degree on the intent of the parties.129 As a result, a consent decree may expressly stipulate that the parties do not intend to resolve or incur preclusive effects on identified legal or factual issues. By agreeing to enter the judgment, the lodging court presumably approves the consensual exclusion of these issues from the scope of the judgment's binding effect. In addition, the parties cannot subsequently modify a consent judgment simply by mutual agreement.130 They instead need to gain the court's permission to modify the judgment and must meet the federal standards for modifications of judgments as specified in the Federal Rules of Civil Procedure and additional guidance from the U.S. Supreme Court for certain public consent decrees.131 Last, if the parties make affirmative representations to the court on germane legal conclusions or factual statements, or if they actively litigate disputed points on which the court issues an interim judgment to resolve,132 they may face separate legal constraints arising from the law of the case doctrine or judicial estoppel.133\nBeyond the simple preclusive effects of judgment on the parties in the current dispute, consent decrees may also serve to establish binding rulings on parties on factual matters outside the four corners of the decree. For example, the entry of a consent decree may be admissible for proving facts, such as knowledge of underlying conditions or existence of a dispute, related to its entry. This narrow form of preclusive effect does not extend, however, *723 to the judicial endorsement of alleged facts to which the parties expressly did not concur in the consent decree's terms.134\n2. Persuasion\nBeyond their direct binding effect on the relatively small universe of parties who personally enter into them, consent decrees also can have persuasive value as interpretations of law when a federal court conducts a hearing to determine the decree's fairness and legality. For example, a federal court might address the legality of a proffered decree at a fairness hearing or expressly require the parties to resolve a substantive legal issue underlying the settlement as a predicate for entry of the decree.135 While that determination might not directly bind future third-party litigants, the court's rationale and conclusion to approve the decree would be available to provide helpful or persuasive guidance to future judges wrestling with a legal issue or considering the entry of a similar consent decree.136\nThe powers of persuasion usually receive far less attention in scholarly analysis than the mechanics of precedence and stare decisis. The impact of a non-binding decision on subsequent rulings, however, can be sweeping. While a prior decision may not pose a binding precedent that another court would need to distinguish or accept, it may still present a clear formulation of *724 a new legal rule or principle that can guide the considerations of sister courts outside the initial court's ambit or scope of appellate jurisdiction. For example, a federal district court opinion approving the entry of a CERCLA consent decree specifying a particular technical remedy and oversight mechanism may not bind a future review of a similar CERCLA consent decree by another district court (or even that same district court). It would nonetheless provide relevant context for assessing the fairness and consistency of a proffered new decree that sets out similar terms and remedial selections.\nThe parties to a consent decree may also rely on prior decrees for their persuasive value during the negotiation process by pointing to prior decrees as a baseline for terms in the proposed decree. In addition, other stakeholders can highlight prior consent decrees in their comments or objections to a proposed decree during the public comment process or a fairness hearing. To some extent, this tactic has already surfaced in comments submitted on large environmental consent decrees with governmental entities.137 The recent use of confidentiality constraints during consent decree negotiations, however, may constrain the ability of non-party stakeholders to emphasize persuasive earlier consent decrees or decisions prior to a fairness hearing or lodging of the decree.138\n3. Precedent\nBeyond the relatively clear case for coercively binding the parties of consent judgments to their decrees and for giving gentler non-binding persuasive power to consent rulings on future litigants, the prospect of consent decrees with precedential effects on third-party litigants provokes much sharper objections. To some extent, the pushback reflects the intense ongoing debate about the proper role in constitutional litigation of precedence itself, and how courts should apply the mechanics of stare decisis.139 Most of this *725 debate, however, has comparatively little relevance for typical environmental consent decrees.140\nDespite fights over the outer boundaries of precedence, its core features have remained relatively stable in common law systems for centuries.141 At its most basic level, stare decisis refers to the obligation of a court to obey either its prior case law (“horizontal precedence”) or the holdings of a superior court (“vertical precedence”).142 A precedent, in turn, refers to a decision or action in a prior case that establishes a new principle or rule which can apply to similarly situated cases in the future.143 Stare decisis does not predetermine the outcome of successor cases, and a court has the power either to distinguish prior precedents in ways that limit its future power or to simply overrule its horizontal precedents when it prove pernicious or incorrect.144\n*726 The longevity and durability of precedent and stare decisis reflect the commonsense purposes that the doctrines promote. Some of these benefits apply to any decision-maker, such as the efficiency gained by not revisiting basic questions that have already been decided in every new dispute,145 as well as ensuring the humility of later decision-makers who accord respect and due consideration to the rationales offered by earlier decision-makers.146 Other benefits are more uniquely suited to judges and courts, such as the need to provide equal treatment to similarly positioned claimants, predictability in the application of laws and rules, and the discipline of providing a persuasive rationale for a decision that can serve future jurists.147 All of these values help promote coherence and relevance in the body of decisions that make precedent overall a more useful and powerful tool for future litigants.\nGiving prospective precedential effect to consent decrees in certain instances might serve similar goals. For example, looking to prior consent decrees that resolved similar disputes to guide subsequent decisions could promote efficiency, equal treatment, and predictability in recurring litigation. But the match is not entirely clean. The concept of humility--that current decision-makers should respect and, when warranted, defer to prior decisionmakers as an acknowledgment of their insight and skill-- may not make sense if the prior consent decree arises mostly from the contractual resolution of a dispute by private litigants.148 Similarly, the virtue of discipline, which arises from a judge's desire to craft an opinion that can guide future decisionmakers, may not play any role between purely private litigants who have no interest in future or current disputes by other parties.\nThe most telling objection to granting precedential effect to consent judgments, however, is that they typically lack a stated ratio decidendi.149 At its most fundamental level, the exercise of judicial power through the rendering of a written opinion serves the express function of providing a rationale to justify the particular resolution reached by the court. This ratio, *727 then, lies at the heart of the function of precedent and stare decisis. By providing a reasoned explanation of the judgment reached in a specific case, a judge offers a rationale for why that judgment is fair and worthy of respect and deference from both the public at large and future decision-makers. The judge's rationale, of course, also serves as the basis for any appellate review of the court's decision.\nConsent decrees, by definition, need not offer any ratio beyond the simple agreement of the parties to resolve their dispute in a fashion that meets the minimal requirements for entry of a consent decree by the court. While the parties can offer their own legal conclusions in their agreement (or expressly disclaim the application of other legal doctrines or admissions of liability), their proffered rationale may not merit the same degree of respect, deference, or reliance as a ratio provided by a judicial officer vested with the power to authoritatively resolve disputes before a court. In a lengthy and complex consent decree, the parties may reach agreement through negotiated exchanges or “swaps” among provisions that would muddle a coherent or consistent narrative explanation. As a result, while a future court may find a rationale offered in a consent decree illuminating or even persuasive, the judge arguably need not necessarily extend the same degree of deference or concern for reliance interests that would accompany the application of stare decisis.150\nThe limited extension of precedential effect to consent decrees, however, may still make sense in certain circumstances, particularly when a governmental body is one of the settling parties and is adopting a consistent rationale for reaching similar consent agreements in future disputes. For example, at least one federal agency has arguably built its body of consent orders into a source of functional common law precedent for subsequent legal determinations.151 The Federal Trade Commission (“FTC”) has entered into numerous consent decrees and settlements to enforce Section 5 of the Federal Trade Commission Act (“FTCA”), which protects consumer privacy in transactions.152 As a result, the FTC's enforcement actions have generated virtually no judicial decisions because the agency has chosen to settle almost all of its actions through consent agreements.153 Companies now rely on the body of consent decrees to guide the formation of their privacy policies, and *728 at least one commissioner has labeled this body of consent agreements as “a common law of privacy in this country.”154\nSome scholastic commenters have agreed and argue that the FTC's body of consent agreements “is functionally equivalent to a body of common law” and is the “most influential regulating force on information privacy in the United States--more so than nearly any privacy statute or any common law tort.”155 At least one judicial opinion has taken a similar position and relied on FTC consent agreement provisions to interpret a state consumer protection statute modeled on Section 5 of the FTCA.156 The classification of FTC consent decrees as precedential statements of law, however, has drawn strong objections from other legal commentators who emphasize the substantive differences in the common law adjudication process. These objectors also raise fundamental constitutional concerns.157 Notably, the number of privacy law settlements by the FTC is much smaller and focused on a discrete number of coherent legal issues than the expansive body of environmental consent decrees, which cut across a broad array of statutes and environmental media.158\nThe precedential power of prior consent decrees can especially influence the negotiation and review of successive consent decrees that target a single industrial sector or focus on a particular environmental practice. For example, the United States has initiated a series of enforcement actions against *729 automobile manufacturers that installed “defeat devices” in their vehicles.159 These devices manipulated the emissions of vehicles to produce misleadingly low levels of pollutants during federally mandated emissions testing procedures.160 The enforcement initiative yielded a series of consent decrees against a string of automobile manufacturers, including Volkswagen,161 Fiat Chrysler Automobiles,162 Derive Systems, Inc.,163 and Harley Davidson.164 The first of these decrees to be lodged, entered into with Volkswagen, effectively influenced the terms for subsequent settlements and served as a partial template for future settlements with the other manufacturers.165 By providing a convincing basis for future negotiations, the Volkswagen decree effectively led the parties and successive courts to treat it as if it had precedential (or, at least, strongly persuasive) value.166", "role": "user" }, { "content": "consent decrees\ngenerate legally relevant rules, principles, and precedents\njudgments do not impose a uniform\nly constraining effect on future opinions in a rigid and predetermined way. Like the common law process itself, consent judgments can affect or bind future judgments along a spectrum of persuasion and force that turns on the individual circumstances and history of each case. In this regard, consent decrees\nhave degrees of impact that vary from persuasive effect, through the statement of useful principles, to encapsulations of a legal rule, to binding effects of precedent applied through stare decisis, to direct compulsory effects\nto the original decree through the law of the case doctrine or judicial estoppel\na judgment may have persuasive value if it offers insights and relevant rules for a decision\na future court finds wise or helpful\nFor the parties who directly enter\nthem and lodge them with the court, consent decree judgments function as wholly binding judicial decrees. In this\ncontext, the lodging parties face the same preclusive and binding effects of any other judgment issued by the court in their case. The entry of a consent decree judgment would impose issue preclusion, res judicata, and the law of the case consequences if they wished to relitigate their concerns\nBeyond the simple preclusive effects of judgment on the parties in the current dispute, consent decrees may also serve to establish binding rulings on parties on factual matters outside the four corners of the decree. For example, the entry of a consent decree may be admissible for proving facts\nrelated to its entry\nBeyond their direct binding effect\nconsent decrees also\nhave persuasive value as interpretations of law when a federal court conducts a hearing to determine the decree's\nlegality\nWhile that determination might not directly bind future third-party litigants, the court's rationale and conclusion to approve the decree would be available to provide helpful or persuasive guidance to future judges wrestling with a legal issue or considering the entry of a similar\ndecree\nThe impact of a non-binding decision on subsequent rulings\ncan be sweeping. While a prior decision may not pose\nbinding precedent that another court would need to distinguish or accept, it may still present a clear formulation of\na new legal rule or principle that can guide the considerations of sister courts outside the initial\nambit\nparties to a consent decree may also rely on prior decrees for their persuasive value during the negotiation process by pointing to prior decrees as a baseline for terms\nother stakeholders can highlight prior consent decrees in their comments or objections to a proposed decree during the public comment process or a fairness hearing\nthis tactic has already surfaced\non\nenvironmental consent decrees\nlooking to prior consent decrees that resolved similar disputes to guide subsequent decisions could promote efficiency, equal treatment, and predictability\nwhen a governmental body is one of the settling parties and is adopting a consistent rationale for reaching similar consent agreements in future disputes\nThe\nFTC\nhas entered\nnumerous consent decrees and settlements to enforce\nthe F\nT\nC\nA\nthe\nenforcement actions have generated virtually no judicial decisions because the agency has chosen to settle almost all of its actions through consent agreements\nCompanies\nrely on the body of consent decrees to guide the formation of their\npolicies, and\nat least one commissioner has labeled this body of consent agreements as “a common law\nthe FTC's body of consent agreements “is functionally equivalent to a body of common law” and is the “most influential regulating force\nin the U\nS\nmore\nthan\nany\nstatute or\ncommon law tort\nAt least one judicial opinion has taken a similar position and relied on FTC consent agreement provisions to interpret\nthe FTCA\nThe precedential power of prior consent decrees can\ninfluence the negotiation and review of successive consent decrees that target a single industrial sector or focus on a particular\npractice", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 1) SIGNAL---it’s treated as binding and precedential, even though it’s not---particularly for the FTC", "role": "system" }, { "content": "consent decrees\ngenerate legally relevant rules, principles, and precedents\njudgments do not impose a uniform\nly constraining effect on future opinions in a rigid and predetermined way. Like the common law process itself, consent judgments can affect or bind future judgments along a spectrum of persuasion and force that turns on the individual circumstances and history of each case. In this regard, consent decrees\nhave degrees of impact that vary from persuasive effect, through the statement of useful principles, to encapsulations of a legal rule, to binding effects of precedent applied through stare decisis, to direct compulsory effects\nto the original decree through the law of the case doctrine or judicial estoppel\na judgment may have persuasive value if it offers insights and relevant rules for a decision\na future court finds wise or helpful\nFor the parties who directly enter\nthem and lodge them with the court, consent decree judgments function as wholly binding judicial decrees. In this\ncontext, the lodging parties face the same preclusive and binding effects of any other judgment issued by the court in their case. The entry of a consent decree judgment would impose issue preclusion, res judicata, and the law of the case consequences if they wished to relitigate their concerns\nBeyond the simple preclusive effects of judgment on the parties in the current dispute, consent decrees may also serve to establish binding rulings on parties on factual matters outside the four corners of the decree. For example, the entry of a consent decree may be admissible for proving facts\nrelated to its entry\nBeyond their direct binding effect\nconsent decrees also\nhave persuasive value as interpretations of law when a federal court conducts a hearing to determine the decree's\nlegality\nWhile that determination might not directly bind future third-party litigants, the court's rationale and conclusion to approve the decree would be available to provide helpful or persuasive guidance to future judges wrestling with a legal issue or considering the entry of a similar\ndecree\nThe impact of a non-binding decision on subsequent rulings\ncan be sweeping. While a prior decision may not pose\nbinding precedent that another court would need to distinguish or accept, it may still present a clear formulation of\na new legal rule or principle that can guide the considerations of sister courts outside the initial\nambit\nparties to a consent decree may also rely on prior decrees for their persuasive value during the negotiation process by pointing to prior decrees as a baseline for terms\nother stakeholders can highlight prior consent decrees in their comments or objections to a proposed decree during the public comment process or a fairness hearing\nthis tactic has already surfaced\non\nenvironmental consent decrees\nlooking to prior consent decrees that resolved similar disputes to guide subsequent decisions could promote efficiency, equal treatment, and predictability\nwhen a governmental body is one of the settling parties and is adopting a consistent rationale for reaching similar consent agreements in future disputes\nThe\nFTC\nhas entered\nnumerous consent decrees and settlements to enforce\nthe F\nT\nC\nA\nthe\nenforcement actions have generated virtually no judicial decisions because the agency has chosen to settle almost all of its actions through consent agreements\nCompanies\nrely on the body of consent decrees to guide the formation of their\npolicies, and\nat least one commissioner has labeled this body of consent agreements as “a common law\nthe FTC's body of consent agreements “is functionally equivalent to a body of common law” and is the “most influential regulating force\nin the U\nS\nmore\nthan\nany\nstatute or\ncommon law tort\nAt least one judicial opinion has taken a similar position and relied on FTC consent agreement provisions to interpret\nthe FTCA\nThe precedential power of prior consent decrees can\ninfluence the negotiation and review of successive consent decrees that target a single industrial sector or focus on a particular\npractice", "role": "user" }, { "content": "generate legal\nrules\nprinciples\nprecedents\nuniform\nly constraining\nrigid and predetermined way\ncommon law process itself\naffect\nbind future judgments\nspectrum of persuasion and force\nindividual circumstances\nhistory of each case\ndegrees\npersuasive\nuseful principles\nencapsulations of a legal rule\nbinding\nstare decisis\ndirect compulsory effects\noriginal decree\nrelevant rules\nwise\nhelpful\ndirectly enter\nlodge them with the court\nwholly binding judicial decrees\nsame preclusive and binding effects\nany other judgment\ncourt\nissue preclusion\nres judicata\nlaw of the case consequences\nparties in the current dispute\nbinding rulings\nfactual matters outside\ndecree\nproving facts\nrelated\ndirect\npersuasive\ninterpretations of law\ndirectly bind\nrationale\nconclusion\navailable\nhelpful or persuasive guidance to future judges\nsimilar\ndecree\nnon-binding decision\nsweeping\nbinding\nneed\ndistinguish or accept\nclear formulation of\na new legal rule or principle\nguide\ncourts outside the initial\nambit\nparties\nalso\nnegotiation process\nbaseline\nterms\nalready surfaced\nenvironmental\nprior consent decrees\nsubsequent decisions\nefficiency\nequal treatment\npredictability\ngovernmental body\nconsistent rationale\nsimilar consent agreements\nfuture disputes\nFTC\nnumerous consent decrees\nsettlements\nF\nT\nC\nA\nno judicial decisions\nrely on the body of consent decrees to guide the formation of their\npolicies\ncommissioner\ncommon law\nFTC's\nfunctionally equivalent to a body of common law\nmost influential regulating force\nin the U\nS\nmore\nany\nstatute\ncommon law tort\njudicial opinion\nsimilar position\nFTC consent agreement\ninterpret\nFTCA\nprecedential power of prior consent decrees\nnegotiation and review\nsuccessive consent decrees\nsingle industrial sector\nparticular\npractice", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 1) SIGNAL---it’s treated as binding and precedential, even though it’s not---particularly for the FTC\n\nHighlight Ratio: 0.1", "role": "system" }, { "content": "consent decrees\ngenerate legally relevant rules, principles, and precedents\njudgments do not impose a uniform\nly constraining effect on future opinions in a rigid and predetermined way. Like the common law process itself, consent judgments can affect or bind future judgments along a spectrum of persuasion and force that turns on the individual circumstances and history of each case. In this regard, consent decrees\nhave degrees of impact that vary from persuasive effect, through the statement of useful principles, to encapsulations of a legal rule, to binding effects of precedent applied through stare decisis, to direct compulsory effects\nto the original decree through the law of the case doctrine or judicial estoppel\na judgment may have persuasive value if it offers insights and relevant rules for a decision\na future court finds wise or helpful\nFor the parties who directly enter\nthem and lodge them with the court, consent decree judgments function as wholly binding judicial decrees. In this\ncontext, the lodging parties face the same preclusive and binding effects of any other judgment issued by the court in their case. The entry of a consent decree judgment would impose issue preclusion, res judicata, and the law of the case consequences if they wished to relitigate their concerns\nBeyond the simple preclusive effects of judgment on the parties in the current dispute, consent decrees may also serve to establish binding rulings on parties on factual matters outside the four corners of the decree. For example, the entry of a consent decree may be admissible for proving facts\nrelated to its entry\nBeyond their direct binding effect\nconsent decrees also\nhave persuasive value as interpretations of law when a federal court conducts a hearing to determine the decree's\nlegality\nWhile that determination might not directly bind future third-party litigants, the court's rationale and conclusion to approve the decree would be available to provide helpful or persuasive guidance to future judges wrestling with a legal issue or considering the entry of a similar\ndecree\nThe impact of a non-binding decision on subsequent rulings\ncan be sweeping. While a prior decision may not pose\nbinding precedent that another court would need to distinguish or accept, it may still present a clear formulation of\na new legal rule or principle that can guide the considerations of sister courts outside the initial\nambit\nparties to a consent decree may also rely on prior decrees for their persuasive value during the negotiation process by pointing to prior decrees as a baseline for terms\nother stakeholders can highlight prior consent decrees in their comments or objections to a proposed decree during the public comment process or a fairness hearing\nthis tactic has already surfaced\non\nenvironmental consent decrees\nlooking to prior consent decrees that resolved similar disputes to guide subsequent decisions could promote efficiency, equal treatment, and predictability\nwhen a governmental body is one of the settling parties and is adopting a consistent rationale for reaching similar consent agreements in future disputes\nThe\nFTC\nhas entered\nnumerous consent decrees and settlements to enforce\nthe F\nT\nC\nA\nthe\nenforcement actions have generated virtually no judicial decisions because the agency has chosen to settle almost all of its actions through consent agreements\nCompanies\nrely on the body of consent decrees to guide the formation of their\npolicies, and\nat least one commissioner has labeled this body of consent agreements as “a common law\nthe FTC's body of consent agreements “is functionally equivalent to a body of common law” and is the “most influential regulating force\nin the U\nS\nmore\nthan\nany\nstatute or\ncommon law tort\nAt least one judicial opinion has taken a similar position and relied on FTC consent agreement provisions to interpret\nthe FTCA\nThe precedential power of prior consent decrees can\ninfluence the negotiation and review of successive consent decrees that target a single industrial sector or focus on a particular\npractice", "role": "user" }, { "content": "consent decrees\ngenerate legal\nrules\nand precedents\nFor\nparties who\nenter\njudgments function as\nbinding\nthe same\neffects of any other judgment\nalso\npersuasive\nto future judges\nimpact\ncan be sweeping. While\nnot\nbinding\ncan guide\ncourts\nparties\nalso rely on prior decrees\nduring\nnegotiation\nFTC\ndecrees\nCompanies\nrely on\nto guide\ntheir\npolicies\nfunctionally equivalent to a body of common law”\nregulating\nmore\nthan\nstatute or\ntort\ninfluence\nsuccessive\ndecrees that target a single\nsector or\npractice", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: 2) TAILORING---the worst abuses will be individually remedied through personalized decrees---that guidance is the best possible for the individual case", "role": "system" }, { "content": "COUNSELING WITHOUT CASE LAW\nFor as long as anyone can remember, judicial decisions have been the principal source of the “law” for those who strive to provide antitrust advice in the United States. This case law never has been a perfect instrument for furnishing guidance to the foot soldiers of antitrust, but at least it enjoys the benefit of stare decisis.\nAdministrative guidance likewise serves to provide direction to practitioners, but it can be subject to abrupt change depending on which way the political winds blow. To compound the problem, the reasoning behind such guidance is not always articulated, nor is it passed through the filter of successive levels of appeal. There are no dissenting opinions to spawn opposing schools of thought in most instances. There are no case notes in law reviews to suggest criticisms and alternative approaches. There are no headnotes, no key numbers, and no Shepards. Instead of judicial opinions there are advisory opinions and guidelines. Instead of appeals there are speeches. Instead of thirteen circuits funneling into one Supreme Court there are two federal agencies and fifty state attorneys general funneling through the court of public opinion.\nOf course, on the positive side, administrative decisions can provide the immediate parties with prompt resolution of issues and efficient disposition of disputes. Potential litigants often are not interested in establishing precedent; they want to close their merger, license their technology, or exchange information with their competitor. Business review letters, consent agreements, guidelines, and other forms of administrative guidance permit parties to engage in scores of activities of this kind every year without awaiting a protracted resolution in court.", "role": "user" }, { "content": "This case law never has been a perfect instrument for furnishing guidance to the foot soldiers of antitrust\nAdministrative guidance likewise\nprovide direction to practitioners\nadministrative decisions\nprovide the immediate parties with prompt resolution of issues and efficient disposition of disputes. Potential litigants\nare not interested in establishing precedent; they want to close their merger, license their tech\nor exchange info\nwith their competitor\nconsent agreements\npermit parties to engage in scores of activities of this kind\nwithout awaiting\nprotracted resolution in court", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: 2) TAILORING---the worst abuses will be individually remedied through personalized decrees---that guidance is the best possible for the individual case", "role": "system" }, { "content": "This case law never has been a perfect instrument for furnishing guidance to the foot soldiers of antitrust\nAdministrative guidance likewise\nprovide direction to practitioners\nadministrative decisions\nprovide the immediate parties with prompt resolution of issues and efficient disposition of disputes. Potential litigants\nare not interested in establishing precedent; they want to close their merger, license their tech\nor exchange info\nwith their competitor\nconsent agreements\npermit parties to engage in scores of activities of this kind\nwithout awaiting\nprotracted resolution in court", "role": "user" }, { "content": "never\nperfect instrument\nfoot soldiers of antitrust\nAdministrative\nlikewise\nimmediate parties\nprompt resolution of issues\nefficient disposition of disputes\nlitigants\nare not interested in establishing precedent\ntheir merger\ntheir tech\ninfo\ntheir\nconsent agreements\nscores of activities of this kind\nwithout\nwaiting\nin court", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: 2) TAILORING---the worst abuses will be individually remedied through personalized decrees---that guidance is the best possible for the individual case\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "This case law never has been a perfect instrument for furnishing guidance to the foot soldiers of antitrust\nAdministrative guidance likewise\nprovide direction to practitioners\nadministrative decisions\nprovide the immediate parties with prompt resolution of issues and efficient disposition of disputes. Potential litigants\nare not interested in establishing precedent; they want to close their merger, license their tech\nor exchange info\nwith their competitor\nconsent agreements\npermit parties to engage in scores of activities of this kind\nwithout awaiting\nprotracted resolution in court", "role": "user" }, { "content": "decisions\nprovide\nimmediate parties\nprompt resolution\nlitigants\nare not interested in\nprecedent; they want to close their merger\nconsent agreements\npermit\nthis kind\nwithout\nwaiting\nin court", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: More evidence---the CP’s faster", "role": "system" }, { "content": "III. THE REGULATION EFFECTS OF CONSENT DECREES AND COMMITMENT DECISIONS--THE CHANGED ROLE OF ANTITRUST AGENCIES\nThrough consent decrees or commitment decisions, the U.S. and European antitrust agencies may settle significant antitrust cases, and as a result, these methods have become critical tools for enforcing antitrust law. Consequently, the role of antitrust agencies has become less clear. The widespread use of consent decrees or commitment decisions enables antitrust agencies to regulate the parties' day-to-day business conduct, creating a set of rules to affected markets. Antitrust agencies do not only interpret or simply apply the law; they also provide the rules and standards that govern behavior.\nJustice Breyer explained that regulation and antitrust strive for similar goals: low and economically efficient prices, innovation, and efficient production methods.29 Historically, regulation seeks to achieve these goals *46 directly, while antitrust law seeks to achieve them indirectly. By settling antitrust cases through consent decrees, antitrust agencies assume the typical regulator role for imposing behavioral or structural remedies. Antitrust law appears as an alternative to regulation. In sum, antitrust agencies, through consent decrees, can achieve, both directly and indirectly, the above-mentioned goals.\nProfessor Harry First recognized that, due to the increasing use of consent decrees, “[a]ntitrust has come to be seen more as policy and less as law.”30 “Here the Legislature, “invades the territory of another”31-- the Judiciary.”\nHaving recognized the regulatory effects of consent decrees and commitment decisions, the following questions should be addressed: Are antitrust agencies legitimately regulating markets through consent decrees or commitment decisions? If they are, are such indirect regulatory powers appropriate? By analyzing the well-known AT&T case, I reflect on the regulatory role assumed by the DOJ and Judge Greene, weighing its positive and negative effects on markets.\nA. The AT&T Case\nThe AT&T case involves three different agreements enshrined in judgments over the past hundred years.32 The most important one was the 1982 consent decree.33 The antitrust lawsuit began in 1974 and was settled by the consent decree, which was the first of two major regulatory interventions in the U.S. telecommunications industry.34 By analyzing the *47 AT&T consent decree of 1982, I show both the regulatory and efficiency effects from using this antitrust tool. I assess whether the social costs of this regulation decision (designed in 1982 by Judge Greene, the DOJ, and AT&T) exceed its benefits and whether the terms of that decree maximized economic welfare. Through this analysis, I evaluate whether or not regulatory powers of antitrust agencies are appropriate and whether they should be promoted or restricted.\n1. AT&T - The Facts\nIn February 1885, the American Telephone and Telegraph Company was established for providing electric telegraph lines connecting “each and every city, town, or place in said state, and each and every other of the United States, and in Canada and Mexico.”35 The American Bell Telephone Company's subsidiary, AT&T, provided long-distance telephone lines to interconnect local exchange areas of the Bell companies. Three submarkets: long distance, local distance, and telecommunications equipment composed the U.S. telecommunications industry.36 Historically, AT&T operated in all three markets. Until 1984, AT&T's Bell System included: AT&T Long Lines; local subsidiaries (22 Bell System Operating Companies); and Western Electric, Bell Laboratories, and American Bell, who provided *48 telecommunications equipment for AT&T's local and long-distance companies.37\nThe well-known antitrust case--U.S. v. AT&T (1982)--was based on the assumption that the local loop (the telephone local access line) constituted a bottleneck facility. According to the complaint, the defendants: “[were] violating the antitrust laws by various monopolistic practices ... [and] as a consequence of these practices (1) defendants have achieved and ... maintain [ed] a monopoly of telecommunications service and equipment; (2) competition in these areas ha[d] been restrained; and (3) purchasers of telecommunications service and equipment ha[d] been denied the benefits of a free and competitive market.”38\nOn January 1, 1984, the Bell System died. A new AT&T and seven regional Bell operating companies (collectively, the “RBOCs”) replaced the Bell System.39 The decree, known as the Modification of Final Judgment (“MFJ”), ordered AT&T to divest its local entities.40 Specifically, AT&T divested itself of the wholly owned Bell operating companies (“BOCs”), which were regrouped within seven new regional companies, each with its own geographic base.41 The MFJ precluded the new RBOCs from providing long-distance service. By doing so, AT&T continued to be active in the long-distance and manufacturing units from its remaining BOCs.\n2. Effects of the MFJ on the Telecommunications Industry\nThe AT&T case divided scholars over the procompetitive effects of the antitrust and regulatory intervention of the MFJ. For example, according to Robert W. Crandall, AT&T's divestiture was not necessary, and it created “a vertically fragmented industry structure that is not sustainable *49 today.”42 Therefore, the mandate of sharing the local telephone network required by the MFJ would not promote competition in telecommunication services. Similarly, Gregory J. Sidak observed that in the telecommunications industry, technologies change continuously and rapidly, and structure relief would not only be unnecessary, but also unworkable.43 Richard A. Epstein considered the AT&T case “the most vivid illustration of a consent decree gone wrong.”44 However, it is undisputed that the AT&T antitrust consent decree changed the entire telecommunications industry, imposing competition in a previously monopolistic market.\nIn my opinion, despite several critics, some positive effects of the MFJ on the telecommunications industry are evident. The MFJ gave a strong stimulus to the telecommunications market.45 The breakup of AT&T marked the end of the regulated de facto monopoly era in the telecommunications industry,46 and AT&T's market share significantly decreased. The DOJ antitrust intervention, formalized by Judge Greene's decree, is analogous to a surgery that takes place in an emergency room. Although it may not be the best solution, it is time-sensitive and perhaps the only way to break up the AT&T monopoly that had previously prevailed at least fifty years. The Federal Communications Commission (“FCC”) recognized that in a dynamic industry like the telecommunications industry, competition is more suitable than a natural monopoly. Competition increases both the size of telecommunications markets and consumer welfare, encouraging firms to develop better quality products at lower prices.\nTherefore, the primary role of regulators, like the FCC in the telecommunications industry, is to promote and increase the competition of markets. This regulatory role appears similar to the role of antitrust agencies. Therefore, an overlap of authority between the regulator and antitrust agencies is undisputed. The direct effect of the AT&T divestiture was increased competition in the long distance and information services *50 markets.47 The prices of long distance calls decreased significantly.48 The FCC observed that the cost of a long distance call from 1984 to 2006 “dropped from 32 cents per minute to 7 cents per minute,” meaning that between 1984 and 2006, their prices declined more than 85 percent.49 Furthermore, in 1984, AT&T held a market share of approximately 90 percent,50 which fell to 47.9 percent51 by 1996 and to 24 percent by 2011. In 2011, Verizon held a market share of approximately 12.1 percent.52\nAlthough AT&T's market share decreased, FCC's 1995 studies recognized that AT&T's “output has increased by two-thirds over 1984 levels.”53 Thus, since AT&T's divestiture, industry output, measured by the number of calling minutes, has nearly tripled. Further, Roger G. Noll and Susan R. Smart analyzed the annual rate of Change for Various Price (“CPI”) for telephone services.54 Noll and Smart observed that “[t]he primary effect of divestiture and federal deregulation was reduced prices for customer equipment and for services that were becoming competitive.”55\nIn short, the most important indicators of degree of competition, e.g. price and market share, show that the antitrust intervention increased competition in the long distance market.56 Conversely, AT&T's local telephone companies provided about three-quarters of the nation's local *51 telephone service and almost all-interstate long distance service. However, the transition of the local market towards effective competition will not be as easy or as quick as in the long distance market, due to the nature of the product and the associated economics. Herbert Hovenkamp recognized that there was “still a great deal of regulation of local service.”57 In 1984, the AT&T breakup opened competition in the long distance market but maintained a regulated monopoly in the local telephone market. Here, the Telecommunications Act of 1996 was enacted to promote competition in local exchange markets.\nThat Telecommunications Act was the United States' reaction to ongoing rapid technology changes. It completely deregulated the telecommunications industry by envisioning one competitive open market for local and long distance, wireless, and cable services. In sum, the telecommunications industry is a representative industry to analyze the complementary role of antitrust agencies in regulated markets.\nB. Antitrust Agencies, Regulatory Agencies or Both?\nHaving analyzed the AT&T case, one can more easily reflect on the consequences of similar structural consent decrees and the regulatory role assumed by antitrust agencies in markets. The benefits of the MFJ seem to exceed its costs. However, markets constantly change, and remedies must be implemented on a case-by-case basis. In the telecommunications industry, the current trend is toward consolidation.58 Market remedies need to be adapted to the specific needs of the market, which are always different. But is antitrust intervention appropriate in regulated markets where a regulator already exists?\nRegulation is complementary to competition. As Glen O. Robinson observed, “competition and regulation are like bread and butter.”59 The regulator's or legislator's intervention may sometimes be slower than the antitrust intervention. The latter is able to change the market dynamics *52 through a structural or behavioral consent decree; whereas the FCC or others regulators need to impose rules that involve the entire market, implying more steps and a longer procedure.\nTiming in markets, especially in dynamic markets such as the telecommunications market, is critical. A rapid and tailored solution to correct a market failure is preferable to a delayed regulation or a set of laws enacted by the legislature. The European Commission recognized the ability of commitment decisions to ensure a flexible alternative to rapidly restore competition, especially in fast-moving digital markets.60 In antitrust enforcement, two possible scenarios exist. In the first scenario, antitrust agencies have no regulatory powers; thus, they can only impose sanctions to counter antitrust violations. In this case, antitrust intervention seems static and repetitive. In the second scenario, antitrust agencies can find a compromise with the companies being investigated, gaining efficiency through temporal and monetary transactions costs. This second scenario seems more flexible and respectful of market changes.\nIn sum, efficiency and consumer welfare seem to be better preserved by increasing collaboration among antitrust and regulatory agencies. Antitrust agencies can impose a quick structural or behavioral remedy in regulated markets, while benefiting from the unique expertise of regulators in each markets. Working together, both bodies should be able to achieve the most procompetitive result. Reaching a competitive outcome is important, but it can be costly when two agencies strive to achieve the same result.\nC. How to Diverge Commitment Decisions/Consent Decrees from Prohibition Decisions\nAs the AT&T case shows, antitrust agencies can impose market rules in place of a regulator. But what are the concrete differences between commitment decisions/consent decrees and prohibition decisions? To clarify this distinction, I analyze some recent antitrust decisions. In Europe, the recent decisions on the payment sector are fitting to show such differences. In this sector, the Commission opened several investigations, all of which ended with both commitment decisions and prohibition decisions.\n*53 In particular, in September 2003 and June 2006, the European Commission sent two Statement of Objections on intra-European Economic Area (EEA) interchange fees, also known as multilateral interchange fees (“MIFs”), to Mastercard Europe SPRL and Mastercard International Inc.61The MIF is an interbank payment that concerns each transaction realized with a payment card. Mastercard, for example, adopted a business model for MIFs, which established a mechanism that effectively identified a minimum price merchants had to pay for accepting Mastercard cards. In practice, Mastercard's MIF is a charge imposed per payment at merchant outlets. Similarly, in April 2009, the Commission sent a Statement of Objection to Visa Europe Limited, Visa Inc., and Visa International Services Association. In this proceeding, the antitrust issue also concerned the MIF applied by Visa and the assumption that such interchange fee could harm competition between merchants' banks.62\nAlthough the antitrust issue in both cases was almost identical, the antitrust decision adopted by the enforcement agencies differed. In Mastercard's proceeding, the Commission identified an antitrust violation in adopting MIFs for cross-border payment card transactions; therefore, prohibiting Mastercard MIFs. The Court of Justice in September 2014 upheld the Commission's Mastercard decision.63 Conversely in Visa's proceeding, the Commission made Visa's commitments legally binding. Similar to the Mastercard case, in the Visa proceeding, the Commission was concerned about “i) [r]ules on ‘cross-border acquiring’ in the Visa system that limit the possibility for a merchant to befit from better conditions offered by banks established elsewhere in the internal market ... ii) All inter-bank fees set by Visa for transactions with consumer credit cards in the EEA.”64 The Commission identified these concerns and made the commitments legally binding in December 2010, establishing that: i) Visa must allow from 1 January 2015 acquirers “to apply a reduced cross-border inter-bank fee (0.3% for credit and 0.2% for debit transactions) for cross *54 border clients;”65 ii) “Visa Europe agrees to cap its credit card MIFs at 0.3% for all consumer credit card transactions in the EEA where Visa Europe sets the rate.”66 Finally with regard to transparency, Visa offered to “simplify its inter-bank fee structure and make the invoicing of card acceptance services more transparent to merchants.”67\nIn sum, in the Mastercard case, after having investigated for four years, the European Commission concluded that Mastercard violated Article 81 of the Treaty (namely Art. 101 of the TFUE) and ordered it “to withdraw its intra-EEA cross-border MIFs within six months, or to adopt a MIF that fulfilled Article 101(3) TFEU Mastercard to apply its MIFs.”68 In the Visa case, the Commission accepted Visa's commitments, according to which Visa would reduce cross-border inter-bank fees and cap its credit card MIFs. The differences between the two antitrust decisions are evident. The duration of the Mastercard EU antitrust proceeding was longer than that of Visa and ended with a discovery of an antitrust violation. This implied that Mastercard could no longer apply its MIF and that its clients, and competitors who were harmed by such MIFs could claim damages for this antitrust violation. In addition to the claims produced for damages and bad advertising, the Mastercard decision represents a precedent, according to which imposing MIFs for cross-border payment card transactions is illegal.\nIn contrast, no antitrust violation was found in Visa's proceeding. According to Recital 13 of Regulation 1/2003, “[co]mmitment decisions should find that there are no longer grounds for action by the Commission without concluding whether or not there has been or still is an infringement.”69 Thus, Visa could continue to apply MIFs, respecting the terms of the commitment decisions. In contrast to the Mastercard prohibition decision, Visa's commitment decision does not constitute a precedent, but only a settlement by which Visa agreed to take specific actions without admitting fault or guilt for the antitrust concerns that led to the Commission's investigation.\nFurther, in July 2013, the European Commission proposed to the European Parliament and Council to implement European legislation that would cap, similar to the terms of Visa's decision, the level of interchange *55 fees payable by merchants.70 On December 17, 2014, the European Parliament and Council reached a political agreement on this Commission Proposal for a Regulation to cap inter-bank fees for card-based payments. Hence, in the Visa proceeding, the commitment decision seems to anticipate legislator intervention. The same Commission's proposal on interchange fees legislation appears to be a result of the decision of the Visa case. Thus, the latter antitrust decision again shows the concrete regulatory effect of a commitment decision, as well as the main difference between such decision and the prohibition decision. Commitment decisions regulate the market, whereas prohibition decisions create case law.\nIV. CONCLUSION\nThe U.S. AT&T consent decree and the EU Visa commitment decision are only a couple of examples of how antitrust agencies can compete or, more precisely, collaborate with the regulator to impose rules on markets.\nConsent decrees and commitment decisions are important antitrust devices that compete with prohibition decisions in drawing antitrust policy and in defining antitrust agency roles. Is the widespread use of consent decrees and commitment decisions appropriate in antitrust enforcement? Similar to a doctor in an emergency room, antitrust enforcement needs a tool to rapidly intervene to correct market failures, especially in dynamic markets where time is crucial. As with individuals suffering a health crisis, quick care is needed, and waiting is not opportune. Especially in Europe, commitment decisions often represent a painkiller. Commitment decisions and consent decrees can address the problem superficially, like a painkiller that alleviates symptoms but does not fight the disease.\nThe Visa case shows that the Visa commitment decision only anticipated a regulated intervention that the European legislature implemented in the payment market. However, sometimes this antitrust tool not only anticipates but completely changes the dynamics of the market and the antitrust agency's role. For example, the AT&T consent decree marked the end of a natural monopoly. The Telecommunications Act of 1996 dealt with different competition concerns in the telecommunications industry and was complementary to the AT&T antitrust decision.\nThe consent decree represents a flexible regulatory tool to quickly repair a market failure; it represents, especially in Europe, a painkiller on a *56 real set of rules. Although consent decrees changed antitrust agencies' traditional role, enforcing antitrust law through consent decrees and commitment decisions may be the correct course of action. Endowing antitrust agencies with this flexible antitrust tool appears appropriate and consistent with antitrust purposes and the markets' needs: increased flexibility, efficiency, and consumer welfare. Flexibility is a key word in competitive markets. However, it is important to bear in mind that when a market is diagnosed with a more critical disease, one should not continue to waste time with painkillers.", "role": "user" }, { "content": "Through consent decrees\nantitrust agencies\nsettle significant antitrust cases, and as a result, these methods have become critical\nfor enforcing antitrust law\nconsent decrees\nenable\nagencies to regulate\nday-to-day business conduct, creating\nrules to affected markets\nagencies do not only interpret or simply apply\nlaw; they also provide the rules and standards that govern behavior\nantitrust agencies\ncollaborate with the regulator to impose rules on markets\nConsent decrees\nare important antitrust devices that compete with prohibition decisions in drawing antitrust policy and in defining antitrust agency roles\nSimilar to a doctor in an emergency room, antitrust enforcement needs a tool to rapidly intervene to correct market failures, especially in dynamic markets where time is crucial. As with individuals suffering a health crisis, quick care is needed, and waiting is not opportune\ndecisions\nrepresent a painkiller\nThe consent decree represents a flexible regulatory tool to quickly repair a market failure\nenforcing antitrust law through consent decrees\nmay be the correct course of action. Endowing antitrust agencies with this flexible antitrust tool appears appropriate and consistent with antitrust purposes and the markets' needs: increased flexibility, efficiency, and\nwelfare. Flexibility is\nkey\nin competitive markets", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: More evidence---the CP’s faster", "role": "system" }, { "content": "Through consent decrees\nantitrust agencies\nsettle significant antitrust cases, and as a result, these methods have become critical\nfor enforcing antitrust law\nconsent decrees\nenable\nagencies to regulate\nday-to-day business conduct, creating\nrules to affected markets\nagencies do not only interpret or simply apply\nlaw; they also provide the rules and standards that govern behavior\nantitrust agencies\ncollaborate with the regulator to impose rules on markets\nConsent decrees\nare important antitrust devices that compete with prohibition decisions in drawing antitrust policy and in defining antitrust agency roles\nSimilar to a doctor in an emergency room, antitrust enforcement needs a tool to rapidly intervene to correct market failures, especially in dynamic markets where time is crucial. As with individuals suffering a health crisis, quick care is needed, and waiting is not opportune\ndecisions\nrepresent a painkiller\nThe consent decree represents a flexible regulatory tool to quickly repair a market failure\nenforcing antitrust law through consent decrees\nmay be the correct course of action. Endowing antitrust agencies with this flexible antitrust tool appears appropriate and consistent with antitrust purposes and the markets' needs: increased flexibility, efficiency, and\nwelfare. Flexibility is\nkey\nin competitive markets", "role": "user" }, { "content": "consent decrees\nsettle significant antitrust cases\ncritical\nenforcing antitrust law\nenable\nregulate\nday-to-day business conduct\nrules\ninterpret\napply\nrules\nstandards\ncollaborate\nregulator\nrules\nimportant antitrust devices\ncompete with prohibition decisions\ndoctor\nemergency room\ntool\nrapidly intervene to correct market failures\ndynamic markets where time is crucial\nwaiting is not opportune\ndecisions\npainkiller\nconsent decree\nflexible regulatory tool\nquickly repair a market failure\nconsent decrees\ncorrect course of action\nflexible antitrust tool\nappropriate\nconsistent with antitrust purposes and the markets' needs\nflexibility\nefficiency\nwelfare\nkey", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: More evidence---the CP’s faster\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "Through consent decrees\nantitrust agencies\nsettle significant antitrust cases, and as a result, these methods have become critical\nfor enforcing antitrust law\nconsent decrees\nenable\nagencies to regulate\nday-to-day business conduct, creating\nrules to affected markets\nagencies do not only interpret or simply apply\nlaw; they also provide the rules and standards that govern behavior\nantitrust agencies\ncollaborate with the regulator to impose rules on markets\nConsent decrees\nare important antitrust devices that compete with prohibition decisions in drawing antitrust policy and in defining antitrust agency roles\nSimilar to a doctor in an emergency room, antitrust enforcement needs a tool to rapidly intervene to correct market failures, especially in dynamic markets where time is crucial. As with individuals suffering a health crisis, quick care is needed, and waiting is not opportune\ndecisions\nrepresent a painkiller\nThe consent decree represents a flexible regulatory tool to quickly repair a market failure\nenforcing antitrust law through consent decrees\nmay be the correct course of action. Endowing antitrust agencies with this flexible antitrust tool appears appropriate and consistent with antitrust purposes and the markets' needs: increased flexibility, efficiency, and\nwelfare. Flexibility is\nkey\nin competitive markets", "role": "user" }, { "content": "Through consent decrees\nantitrust agencies\nsettle\ncases\nthese\nhave become critical\nregulate\nbusiness conduct\nnot only interpret or\napply\nlaw\nalso provide\nrules and standards\nSimilar to a doctor in an emergency\nantitrust\nneeds\nto rapidly intervene\nwhere time is crucial\nThe consent decree represents a flexible\ntool to quickly repair\nmarket failure\nenforcing\nthrough consent decrees\nmay be the correct course\nthis flexible\ntool appears appropriate and consistent with\nefficiency, and\nwelfare", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Decrees are locked in at early stages of litigation, so it’s much faster than a court ruling", "role": "system" }, { "content": "A. The Function of Consent Decrees in Antitrust Regulation\nOne of the main objectives behind the consent decree regime in antitrust regulation is efficiency. Consent decrees eliminate the time and expense involved in preparing for and fully litigating a dispute.56 In order to capture this efficiency, the parties generally agree upon consent decrees at a relatively early stage in the litigation.57 Consent decrees tend to reflect a degree of compromise because the agreements usually emerge from a series of secret, informal negotiations between counsel from the DOJ's Antitrust Division and the defendant's lawyers.58\nUnder the current regime, parties also benefit from using consent decrees to find common ground in disputes. Rather than allowing the litigation to continue as a zero-sum game in which one party will win and the other party will lose, consent decrees allow parties to come together and broker the most efficient, fair, and sustainable solution possible.\n*743 Consent decrees play an important role in antitrust regulation because their terms serve as rules for how defendant-corporations may behave in the future and gives the DOJ recourse if the corporations violate those rules. For instance, the ASCAP and BMI consent decrees created a separate Rate Court for ASCAP and BMI, which is used to adjudicate disputes between a PRO and a music user to determine reasonable license fees.59 This independent decisionmaking body serves to protect consumer interests because it safeguards against ASCAP and BMI using their near monopoly in the market to charge exorbitant prices.60 Additionally, the ASCAP and BMI consent decrees regulate the two dominant PROs by stipulating that agreements between composers and ASCAP or BMI are nonexclusive, meaning that composers remain free to directly license their works to a music user outside the PRO structure even if the composers are already members of ASCAP or BMI.61 This term of the consent decree limits the power and influence of ASCAP and BMI while fostering expansion in the marketplace by keeping the door open for smaller competitors to enter the fray.", "role": "user" }, { "content": "One of the main objectives behind the consent decree regime in antitrust regulation is efficiency. Consent decrees eliminate\ntime and expense involved in\nlitigating a dispute\nto capture this efficiency\nparties\nagree upon consent decrees\nrelatively early\nin\nlitigation\nRather than allowing\nlitigation to continue as a zero-sum game in which one\nwill win and the other\nwill lose\ndecrees allow parties to come together and broker the most efficient, fair, and sustainable solution\nConsent decrees\nterms serve as rules for how defendant-corporations may behave in the future and gives\nDOJ recourse if the corporations violate\nrules", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Decrees are locked in at early stages of litigation, so it’s much faster than a court ruling", "role": "system" }, { "content": "One of the main objectives behind the consent decree regime in antitrust regulation is efficiency. Consent decrees eliminate\ntime and expense involved in\nlitigating a dispute\nto capture this efficiency\nparties\nagree upon consent decrees\nrelatively early\nin\nlitigation\nRather than allowing\nlitigation to continue as a zero-sum game in which one\nwill win and the other\nwill lose\ndecrees allow parties to come together and broker the most efficient, fair, and sustainable solution\nConsent decrees\nterms serve as rules for how defendant-corporations may behave in the future and gives\nDOJ recourse if the corporations violate\nrules", "role": "user" }, { "content": "main objective\nefficiency\neliminate\ntime and expense\nlitigating\nagree\ndecrees\nrelatively early\nin\nlitigation\nlitigation\nzero-sum game\none\nwin\nother\nlose\ncome together\nefficient, fair, and sustainable solution\nrules\nmay behave in the future\nDOJ recourse\nviolate\nrules", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Decrees are locked in at early stages of litigation, so it’s much faster than a court ruling\n\nHighlight Ratio: 0.4", "role": "system" }, { "content": "One of the main objectives behind the consent decree regime in antitrust regulation is efficiency. Consent decrees eliminate\ntime and expense involved in\nlitigating a dispute\nto capture this efficiency\nparties\nagree upon consent decrees\nrelatively early\nin\nlitigation\nRather than allowing\nlitigation to continue as a zero-sum game in which one\nwill win and the other\nwill lose\ndecrees allow parties to come together and broker the most efficient, fair, and sustainable solution\nConsent decrees\nterms serve as rules for how defendant-corporations may behave in the future and gives\nDOJ recourse if the corporations violate\nrules", "role": "user" }, { "content": "the main objective\nbehind\nconsent decree\nin antitrust\nis efficiency. Consent decrees eliminate\ntime and expense\nin\nlitigating\nto capture this\nparties\nagree\ndecrees\nrelatively early\nin\nlitigation\nRather than\ncontinue as a zero-sum game\ncome together and broker the most efficient\nsolution", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Businesses use the CP to understand their legal obligations---it’s clear and deters.", "role": "system" }, { "content": "Increasing Use of Consent Decrees\nFirst, the evolution of antitrust into a form of regulation is in part a by-product of the increasing use of consent decrees as the primary means of antitrust enforcement. The Antitrust Division, for example, entered into 8 consent decrees in 1993, 19 in 1994, and 12 in the first half of 1995. During this same period, the Division filed only five complaints that were not accompanied by consent decrees.\nThe record of the Federal Trade Commission is similar. The number of consent decrees put out for comment by the Commission has continually increased. There were 5 in 1992, 9 in 1993, 15 in 1994, and 22 in the first six and one-half months of 1995.\nThe reasons that the parties enter into a consent decree in an individual case are usually obvious and often compelling. Consent decrees resolve uncertainty about the defendants' legal duties, economize on enforcement and compliance resources, and enable government officials to address issues that are politically or economically important but legally ambiguous. Presumably, defendants do not enter into consent decrees when it is clear that they have not violated the law, but it appears that defendants commonly enter into consent decrees where the alleged violation is uncertain and the costs of the consent decree *14 remedy are likely to be less than the costs of even a successful defense in litigation.\nWhile enforcement by consent decree does not necessarily move markedly toward a Regulatory Model of antitrust, the heavy reliance on consent decrees as the principal means of antitrust enforcement has had that effect. Three aspects of enforcement by consent decree have conspired to produce this result.\nFirst, perhaps because consent decree proceedings tend to focus more on the remedy than the wrong, the requirements of consent decrees are sometimes regulatory in nature. Consent decrees often impose mandatory obligations on the parties that go beyond the proper purposes of equitable relief under the Law Enforcement Model -- cessation or prevention of illegal conduct and, as a temporary transitional measure, dissipating whatever market power may have been created by unlawful conduct in the past. Indeed, some consent decree remedies appear to go beyond what the government could realistically anticipate as a remedy in a contested case.1\nSecond, consent decrees have the effect of subjecting private parties to a kind of regulatory jurisdiction of the government enforcement agency, in which the agency's approval is required before the defendant can adapt its conduct to the changing marketplace if so doing might contravene the terms of a decree that was agreed to at a different time and for a different purpose. That appears to be the principal effect of the TCI/Liberty decree, for example, because the decree requires little more than that the parties comply with the law.2\nLike other forms of regulation, consent decrees sometimes create constituencies, often competitors, that have an interest in maintaining the restrictions imposed upon the defendant. And, like other forms of regulation, consent decrees sometimes take on a life of their own as they endure, and are applied, in circumstances that bear little if any relationship to the alleged violations on which they were initially based.\nThe recent reluctance of the Antitrust Division to consent to terminate certain ancient decrees demonstrates the jurisdictional function of the decrees. For example, the 1921 Kodak decree, now more than seventy years old, has either already dissipated the effects of Kodak's antitrust violation or is not going to do so in the future; yet the Division has opposed Kodak's effort to terminate the decree on the ground that Kodak still has market power and thus needs to be regulated.3 While Kodak litigated the matter, other defendants choose not to incur the litigation costs needed to modify or terminate a decree without the government's consent and thus remain subject to decrees that may have long outlived their initial purpose.\nThe jurisdictional role of antitrust consent decrees is of course best illustrated by the Modification of Final Judgment (MFJ) in United States v. Western Electric Company.4 The decree was intended to deal with the problem of bottleneck monopoly in local, wired telephone service, and it has given the Antitrust Division a broad supervisory role over that business. It has had other, unforeseen effects as well. The MFJ requires, among other things, that the Bell Operating Companies (BOCs) give all long-distance carriers equal access to their telephone customers. Because of the way the literal language of the MFJ has been applied to the BOCs, together with the AT&T/McCaw consent decree5 and the Division's recent effort to apply the MFJ to AirTouch (which used to be owned by a BOC but is now a wholly separate company), it is clear that the Division intends to retain (or extend) consent decree jurisdiction to apply the “equal access” requirement of the MFJ to cellular providers. The Division takes that position, even though there was no commercial cellular service when the MFJ was entered, cellular providers are not bottleneck monopolies, and cellular providers have not been alleged to have violated the antitrust laws by denying equal access to long distance carriers. The MFJ has become, in effect, a device for Antitrust Division regulation of both the wired and the wireless telephony industry.\nThe third, and perhaps most important, way in which enforcement by consent decree moves antitrust enforcement from the Law Enforcement Model toward the Regulatory Model stems from the fact that, by their very nature, consent decrees avoid litigation of the allegations in the complaint. Entry of a consent decree thus pretermits determining whether the conduct in which the defendant engaged was unlawful or even whether the conduct alleged in the complaint is unlawful.6 The result is that the development of antitrust law, and the exegesis of the broad language of the antitrust statutes, is achieved, not by a process of adjudication with the attendant common law rigor, but rather through negotiated agreements between individual defendants and the government.\nAs a consequence, antitrust counselors find themselves focusing, not just on whether conduct contemplated by their clients is illegal, but also on whether it is likely to please or displease the current antitrust officials. The increasing number of government enforcement guidelines help make the process of predicting what the government will do less uncertain, but they merely underscore the fact that antitrust law is coming to the point that what matters is not what the law requires, but rather what the present government wants.\nProponents of enforcement by consent decree suggest that there is not likely to be any important divergence between what the law requires and the violations alleged in complaints that are accompanied by consent decrees. They reason that the consent of the defendant is evidence that the government's case is strong and that the costs of the decree are modest. Sometimes that is true. But individual defendants rationally enter into consent decrees whenever the costs imposed upon them by the decree appear likely to be less than the costs they would incur in even a successful litigation; the existence of the decree thus itself says little about the strength of the government's case.", "role": "user" }, { "content": "reasons\nparties enter\na consent decree in an individual case are\nobvious and\ncompelling. Consent decrees resolve uncertainty about\ndefendants' legal duties, economize on enforcement and compliance resources, and enable\nofficials to address issues that are politically or economically important but legally ambiguous\ndefendants do not enter\nconsent decrees when it is clear\nthey have not violated the law, but\ncommonly enter into consent decrees where the alleged violation is uncertain\nConsent decrees often impose mandatory obligations on\nparties that go beyond\nequitable relief\ngo beyond what the government could realistically anticipate as a remedy in a contested case\nconsent decrees\nsubject\nprivate parties to\nregulatory jurisdiction\nin which the agency's approval is required before the defendant can adapt its conduct to the changing marketplace if so doing might contravene the\ndecree\nthe development of antitrust law, and the exegesis of the broad language of the antitrust statutes, is achieved, not by a process of adjudication\nbut rather through negotiated agreements between\ndefendants and the government\nAs a consequence, antitrust counselors find themselves focusing, not just on whether conduct contemplated by their clients is illegal, but also on whether it is likely to please or displease\ncurrent antitrust officials. The increasing\ngovernment\nguidelines\nmake the process of predicting what the government will do less uncertain\nBut individual defendants rationally enter into consent decrees whenever the costs imposed\nby the decree appear likely to be less than the costs they would incur in even\nsuccessful litigation; the existence of the decree\nsays little about the strength of the government's case", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Businesses use the CP to understand their legal obligations---it’s clear and deters.", "role": "system" }, { "content": "reasons\nparties enter\na consent decree in an individual case are\nobvious and\ncompelling. Consent decrees resolve uncertainty about\ndefendants' legal duties, economize on enforcement and compliance resources, and enable\nofficials to address issues that are politically or economically important but legally ambiguous\ndefendants do not enter\nconsent decrees when it is clear\nthey have not violated the law, but\ncommonly enter into consent decrees where the alleged violation is uncertain\nConsent decrees often impose mandatory obligations on\nparties that go beyond\nequitable relief\ngo beyond what the government could realistically anticipate as a remedy in a contested case\nconsent decrees\nsubject\nprivate parties to\nregulatory jurisdiction\nin which the agency's approval is required before the defendant can adapt its conduct to the changing marketplace if so doing might contravene the\ndecree\nthe development of antitrust law, and the exegesis of the broad language of the antitrust statutes, is achieved, not by a process of adjudication\nbut rather through negotiated agreements between\ndefendants and the government\nAs a consequence, antitrust counselors find themselves focusing, not just on whether conduct contemplated by their clients is illegal, but also on whether it is likely to please or displease\ncurrent antitrust officials. The increasing\ngovernment\nguidelines\nmake the process of predicting what the government will do less uncertain\nBut individual defendants rationally enter into consent decrees whenever the costs imposed\nby the decree appear likely to be less than the costs they would incur in even\nsuccessful litigation; the existence of the decree\nsays little about the strength of the government's case", "role": "user" }, { "content": "reasons\nindividual case\nobvious\ncompelling\nresolve uncertainty\nlegal duties\nenforcement\ncompliance resources\nofficials\npolitically or economically important\nlegally ambiguous\nnot\nclear\nnot violated\ncommonly\nuncertain\nmandatory obligations\nbeyond\nequitable relief\nbeyond\nrealistically anticipate\ncontested case\nsubject\nantitrust law\nexegesis\nbroad language\nantitrust statutes\nnot\nadjudication\nnegotiated agreements\ndefendants\ngovernment\ncounselors\nfocus\njust\nillegal\nalso\nplease or displease\ncurrent antitrust officials\nincreasing\ngovernment\nguidelines\npredicting\nless uncertain\nindividual defendants\ncosts\nlikely\nless\nsuccessful\nexistence of the decree\nlittle\nstrength of the government's case", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Businesses use the CP to understand their legal obligations---it’s clear and deters.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "reasons\nparties enter\na consent decree in an individual case are\nobvious and\ncompelling. Consent decrees resolve uncertainty about\ndefendants' legal duties, economize on enforcement and compliance resources, and enable\nofficials to address issues that are politically or economically important but legally ambiguous\ndefendants do not enter\nconsent decrees when it is clear\nthey have not violated the law, but\ncommonly enter into consent decrees where the alleged violation is uncertain\nConsent decrees often impose mandatory obligations on\nparties that go beyond\nequitable relief\ngo beyond what the government could realistically anticipate as a remedy in a contested case\nconsent decrees\nsubject\nprivate parties to\nregulatory jurisdiction\nin which the agency's approval is required before the defendant can adapt its conduct to the changing marketplace if so doing might contravene the\ndecree\nthe development of antitrust law, and the exegesis of the broad language of the antitrust statutes, is achieved, not by a process of adjudication\nbut rather through negotiated agreements between\ndefendants and the government\nAs a consequence, antitrust counselors find themselves focusing, not just on whether conduct contemplated by their clients is illegal, but also on whether it is likely to please or displease\ncurrent antitrust officials. The increasing\ngovernment\nguidelines\nmake the process of predicting what the government will do less uncertain\nBut individual defendants rationally enter into consent decrees whenever the costs imposed\nby the decree appear likely to be less than the costs they would incur in even\nsuccessful litigation; the existence of the decree\nsays little about the strength of the government's case", "role": "user" }, { "content": "Consent decrees resolve uncertainty about\nlegal duties\nand enable\nofficials to address issues\npolitically or economically important but legally ambiguous\ndefendants\nenter\nwhere\nviolation is uncertain\nobligations\ngo beyond\nequitable relief\nwhat the government\nanticipate\nin a contested case\nantitrust counselors\nfocus\nnot just on whether conduct\nis illegal, but also on whether it\ndisplease\nantitrust officials\nguidelines\nmake\npredicting\nless uncertain\nBut\nthe existence of the decree\nsays little about the strength of the government's case", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: If anything, they link more---OLRC participation is inevitable because ALL laws are codified---if it causes confusion, so does the plan---that’s Cross---AND…", "role": "system" }, { "content": "A. Identifying the Principal Audience\nBeing attentive to statutory audience can help to clarify when a statutory term should be given its broadest permissible ordinary meaning, or a more specific and narrower meaning appropriate to the principal audience of the statute in question. In particular, where the statutory scheme primarily addresses a particular subset of the general population, there are good reasons to doubt that a term contained therein should always be given its broadest permissible meaning.\n*200 Consider Yates v. United States,274 a recent instant classic of statutory interpretation. In Yates, the Supreme Court examined whether a fish was a “tangible object” whose destruction was prohibited by the Sarbanes-Oxley Act's prohibition on the destruction of evidence intended to “impede, obstruct, or influence” a federal investigation.275 The defendant in Yates, a commercial fisherman, had been caught offshore by the Coast Guard with several dozen slightly undersized deep-sea fish in violation of federal fisheries law; Yates dumped the fish before returning to harbor so as to avoid being assessed a penalty back on shore.276 Yates was subsequently convicted of knowingly impeding a federal investigation by destroying the fish, in violation of Sarbanes-Oxley's prohibition on the destruction of tangible objects.\nAt trial and on appeal, the defendant argued that the tangible object destruction prohibition should be read in light of its passage as part of the Sarbanes-Oxley Act.277 Sarbanes-Oxley was enacted in the wake of the Enron Corporation's corporate accounting scandal, which included systematic accounting fraud as well as the destruction of numerous incriminating financial documents related to the scandal. In Yates, the defendant asserted that the retention of “tangible object[s]” subject to the statute were document-related objects such as computer hard drives and logbooks that were reasonably related to evidence of financial fraud, not every conceivable tangible object.278\nIn Yates, a majority of the Court sided with the defendant, reversing his conviction.279 Justice Ginsburg, writing for the plurality, acknowledged that while the term “tangible object” as a matter of pure signification could encompass an object such as a fish, the legal meaning of the term was cabined both by the linguistic context of the words surrounding it,280 as well as the legislative context, given its passage as part of Sarbanes-Oxley.281 Writing for four dissenting Justices, Justice *201 Elena Kagan countered that the term should mean the same thing in Sarbanes-Oxley “as it means in everyday language--any object capable of being touched.”282 Although not articulated as such, the core of the disagreement turned on the principal audience of the statute: was the tangible-object destruction prohibition best understood narrowly, targeting auditors and corporate officers involved in document management and retention, or understood broadly, empowering law enforcement officers to target every member of society and every tangible object?\nThe plurality chose the narrower interpretation, in part on the basis of the more specific audience at which the statute was directed. Sarbanes-Oxley was enacted to address financial crimes, and so the audience that the statute seemed most clearly intended to reach were corporate officers and auditors,283 not commercial fishermen. Moreover, the plurality noted that contextual clues throughout the statute supported this narrower reading. The section containing the prohibition was entitled, “Criminal Penalties for Altering Documents,”284 and the prohibition's heading indicated an audience of corporate officers and auditors involved in criminal fraud by means of the “[d]estruction, alteration, or falsification of records.”285 Moreover, although not mentioned by the plurality, but in support of its conclusion, the tangible object provision was part of a subsidiary act incorporated into Sarbanes-Oxley and separately subtitled the “Corporate and Criminal Fraud Accountability Act,” further suggesting that the tangible object provision was aimed at corporate fraud.286\nYates also reflects how contemporary lawyers' focus on the U.S. Code can sometimes obscure evidence of distinctive statutory audiences specific to the statute in question. Today, once a federal statute is enacted into law, the Office of the Law Revision Counsel transmutes Congress's enacted statute at large into specific and segmented provisions of the U.S. Code; *202 often left out altogether are important portions of the bill, such as the legislative findings and purposes--which may help to clarify the principal audience(s) the statute seeks to address.287 As Sarbanes-Oxley was subsumed into the U.S. Code,288 both the heading and the short title noted above disappeared, along with the indication that the tangible-evidencedestruction prohibition was contained within Sarbanes-Oxley, a statute seeking to remedy white-collar criminal fraud. ", "role": "user" }, { "content": "Being attentive to statutory audience can help\nclarify when a statutory term should be given\nbroad\nmeaning, or\nmore specific and narrow\nmeaning appropriate to the principal audience\nwhere the statutory scheme primarily addresses a particular subset of the\npopulation, there are good reasons to doubt\na term\nshould always be given its broadest\nmeaning\ncontemporary lawyers' focus on the U.S. Code can\nobscure evidence of distinctive statutory audiences\nonce a federal statute is enacted into law, the O\nL\nR\nC\ntransmutes Congress's enacted statute at large into specific and segmented provisions of the U.S. Code", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: If anything, they link more---OLRC participation is inevitable because ALL laws are codified---if it causes confusion, so does the plan---that’s Cross---AND…", "role": "system" }, { "content": "Being attentive to statutory audience can help\nclarify when a statutory term should be given\nbroad\nmeaning, or\nmore specific and narrow\nmeaning appropriate to the principal audience\nwhere the statutory scheme primarily addresses a particular subset of the\npopulation, there are good reasons to doubt\na term\nshould always be given its broadest\nmeaning\ncontemporary lawyers' focus on the U.S. Code can\nobscure evidence of distinctive statutory audiences\nonce a federal statute is enacted into law, the O\nL\nR\nC\ntransmutes Congress's enacted statute at large into specific and segmented provisions of the U.S. Code", "role": "user" }, { "content": "clarify\nbroad\nspecific\nnarrow\ndoubt\nfocus on the U.S. Code\nobscure\ndistinctive statutory audiences\nenacted\nO\nL\nR\nC\ntransmutes\nspecific and segmented provisions of the U.S. Code", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Nearly all lawyers experience statutory law exclusively through the vehicle of US Code. They totally overlook underlying law.", "role": "system" }, { "content": "B. ENACTED PURPOSES, THE U.S. CODE, AND STATUTORY CULTURE\nOne might think that the way in which statutory provisions appear in the United States Code is so elemental that it would hardly merit discussion. But how the Code includes purpose provisions obscures these provisions in several important ways.\nTo appreciate how the Code does so, it is first important to recall what the United States Code is and how it is populated with legislation. The Office of Law Revision Counsel (“OLRC”), an office in the House of Representatives, has statutory responsibility for preparing and updating the United States Code.278 That job has two main elements. The first is the job we imagine--the Office takes newly passed public laws and fits in the titles of the U.S. Code. Second, the OLRC also periodically assembles and reorganizes Code's titles, and submits them to Congress for reenactment as a consolidated title. To date, about half of the titles have been reenacted in this manner, and are called “positive” titles, to contrast them with the remainder of the code, the “nonpositive” titles.279 Positive titles, because they have been reenacted as such in a public law, are authoritative sources, but the remainder of the Code, the nonpositive titles, are merely prima facie evidence of the law.280\nIn some cases, the task of placing new public laws in the U.S. Code is straightforward. The Law Revision Counsel can simply drop the provisions of the public law in a title of the Code, swapping the law's sections for new code section numbers. But much new legislation amends various parts of the existing corpus of federal legislation, and the organization of the new *329 legislation often does not neatly map the topical organization of the Code. As a result, individual statutes often end up being codified in scattered provisions of the Code.\nWhen legislation includes an enacted statement of purpose, how are they codified in the Code? The OLRC typically takes one of two approaches, both with downsides. The first is to give the statute's purpose provision its own Code sections, just like any other statutory provision. This has the advantage of highlighting the purpose provision's existence within the Code.281 But it has other effects as well. Because many statutes are codified in scattered or separated provisions, purpose provisions are separated from the provisions they accompanied when enacted. That disrupts the link between the purpose provision and the statutory provisions to which it speaks.\nMoreover, the mere fact of inclusion of public laws into a larger legal corpus--the United States Code--diminishes the centrality of purpose provisions. In a public law, the purpose provision leads and structures the provisions that follow; it purports to speak to the entire statute. But once a public law is placed in the Code, the enacted purpose provision appears as part of this new legal entity, the Code, alongside many other Code provisions; the Code clouds the connections between purpose provisions and the statutory provisions with which they were enacted.\nFrequently and even more worrisome, enacted purpose provisions do not even make it into the text of the United States Code. Instead, the OLRC places purpose statements in the Notes of the Code, which are reproduced under the numbered Code sections in the place a footnote would appear.282 The relegation of purpose provision to the Notes of the Code has no formal legal effect. The text of the law in the Statutes-at-Large, not the text of the U.S. Code, controls.283\n*330 These codification practices take place in a legal culture that frequently treats the Code as a shorthand for the corpus of all federal legislation.284 Talk of “whole code” canons invites the incorrect perception that the U.S. Code is a comprehensive statement of the law in the tradition of a civil law code. In this regard, our citation practices are telling. The Bluebook: A Uniform System of Citation moved in 1926, the year of publication of the U.S. Code, from requiring citation only to the public law,285 to requiring citation to the public law and U.S. Code,286 to requiring citation only to the U.S. Code whenever a citation is available.287 This shift carries a clear message about what the legal community considers an authoritative source of federal legislation.\nNeglect is likely to be particularly acute for purpose provisions relegated to the Notes of the Code. In the official version of the Code, the Notes are parsimonious, appearing as discrete additions following the text of the Code provision. But today, few open hard-bound copies of the U.S. Code. The most widely used legal research tools, Westlaw and Lexis, further confuse the place of these official Notes. In Westlaw, the Notes of the Code appear under a tab labeled “History” (which they are not), and then under the heading of “Editor's and Revision Notes.”288 Those Editor's and Revision Notes mix Westlaw's own content with the official Notes in a way that makes it difficult to distinguish. Lexis also places the official Notes under the tab heading of “History” and reorganizes their content. These choices send the misleading *331 impression that the official Code Notes are just a collection of miscellaneous editorial notes or are merely of historical interest.289 Surprisingly few lawyers and judges--even those who deal with federal legislation--know that purpose provisions are frequently relegated to the Notes of the U.S. Code.\nThe casual identification of our corpus of federal legislation with the Code diminishes the intrinsic importance of purpose provisions. It suggests that lawyers can resolve statutory issues based on the analysis of the Code, not by integrating free-standing statutes. It invites lawyers to view placement in the Code as significant.290 And it creates a pathway for overlooking purpose provisions, either because they are relegated to Notes within the Code or isolated from the operative provisions they address. Indeed, Shobe identifies several cases in which the Supreme Court ignores relevant purpose statements, including those that appeared in the Notes to the Code.291 No doubt the set of court decisions, briefs, and client advice in which purpose provisions are overlooked is vast.\nRecognition of the enacted purposes canon reinforces that our federal legislation requires statutory, not code, interpretation. And statutory interpretation should begin by asking whether the statute includes an enacted purpose.", "role": "user" }, { "content": "it is\nimportant to recall what the U\nS\nCode is and how it is populated with legislation\nThe\nOLRC\nhas statutory responsibility for preparing and updating\nU\nS\nCode\nthe Office takes newly passed public laws and fits in the titles of the U.S. Code\nIn some cases, the task of placing new public laws in the U.S. Code is straightforward\nBut much new legislation amends various parts of the existing corpus of\nlegislation, and the organization of the new\nlegislation often does not neatly map the\norganization of the Code\nAs a result, individual statutes often end up being codified in scattered provisions of the Code.\nThese codification practices take place in a legal culture that frequently treats the Code as a shorthand for the corpus of all federal legislation\nTalk of “whole code” canons invites the incorrect perception that the U.S. Code is a comprehensive statement of the law in the tradition of a civil law code. In this regard, our citation practices are telling. The Bluebook\nmoved\nfrom requiring citation only to the public law\nto requiring citation to the public law and U.S. Code\nto requiring citation only to the U.S. Code\nThis shift carries a clear message about what the legal community considers an authoritative source of federal legislation.\nThe casual identification of our corpus of federal legislation with the Code\nsuggests\nlawyers can resolve statutory issues based on\nthe Code, not by\nfree-standing statutes. It invites lawyers to view\nthe Code as significant\nthe set of court decisions, briefs, and client advice in which\nprovisions are overlooked is vast", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Nearly all lawyers experience statutory law exclusively through the vehicle of US Code. They totally overlook underlying law.", "role": "system" }, { "content": "it is\nimportant to recall what the U\nS\nCode is and how it is populated with legislation\nThe\nOLRC\nhas statutory responsibility for preparing and updating\nU\nS\nCode\nthe Office takes newly passed public laws and fits in the titles of the U.S. Code\nIn some cases, the task of placing new public laws in the U.S. Code is straightforward\nBut much new legislation amends various parts of the existing corpus of\nlegislation, and the organization of the new\nlegislation often does not neatly map the\norganization of the Code\nAs a result, individual statutes often end up being codified in scattered provisions of the Code.\nThese codification practices take place in a legal culture that frequently treats the Code as a shorthand for the corpus of all federal legislation\nTalk of “whole code” canons invites the incorrect perception that the U.S. Code is a comprehensive statement of the law in the tradition of a civil law code. In this regard, our citation practices are telling. The Bluebook\nmoved\nfrom requiring citation only to the public law\nto requiring citation to the public law and U.S. Code\nto requiring citation only to the U.S. Code\nThis shift carries a clear message about what the legal community considers an authoritative source of federal legislation.\nThe casual identification of our corpus of federal legislation with the Code\nsuggests\nlawyers can resolve statutory issues based on\nthe Code, not by\nfree-standing statutes. It invites lawyers to view\nthe Code as significant\nthe set of court decisions, briefs, and client advice in which\nprovisions are overlooked is vast", "role": "user" }, { "content": "what the U\nS\nCode is\nhow it is populated\nOLRC\nstatutory responsibility\npreparing\nupdating\nU\nS\nCode\nfits in the titles of the U.S. Code\nstraightforward\namends\nnew\nneatly map\norganization of the Code\nscattered provisions\ncodification\ns\nlegal culture\ntreats the Code as a shorthand for the corpus of all federal legislation\nincorrect perception\nCode\ncomprehensive statement of the law in the tradition of a civil law code\ncitation\ns\nBluebook\nonly\npublic law\nand\nonly\nU.S. Code\nclear message about what the legal community considers an authoritative source of federal legislation\ncasual identification of our corpus of federal legislation with the Code\nstatutory issues\nCode\nnot\nfree-standing statutes\nlawyers\nview\nCode\nsignificant\ncourt decisions, briefs, and client advice\nprovisions\noverlooked\nvast", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: Nearly all lawyers experience statutory law exclusively through the vehicle of US Code. They totally overlook underlying law.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "it is\nimportant to recall what the U\nS\nCode is and how it is populated with legislation\nThe\nOLRC\nhas statutory responsibility for preparing and updating\nU\nS\nCode\nthe Office takes newly passed public laws and fits in the titles of the U.S. Code\nIn some cases, the task of placing new public laws in the U.S. Code is straightforward\nBut much new legislation amends various parts of the existing corpus of\nlegislation, and the organization of the new\nlegislation often does not neatly map the\norganization of the Code\nAs a result, individual statutes often end up being codified in scattered provisions of the Code.\nThese codification practices take place in a legal culture that frequently treats the Code as a shorthand for the corpus of all federal legislation\nTalk of “whole code” canons invites the incorrect perception that the U.S. Code is a comprehensive statement of the law in the tradition of a civil law code. In this regard, our citation practices are telling. The Bluebook\nmoved\nfrom requiring citation only to the public law\nto requiring citation to the public law and U.S. Code\nto requiring citation only to the U.S. Code\nThis shift carries a clear message about what the legal community considers an authoritative source of federal legislation.\nThe casual identification of our corpus of federal legislation with the Code\nsuggests\nlawyers can resolve statutory issues based on\nthe Code, not by\nfree-standing statutes. It invites lawyers to view\nthe Code as significant\nthe set of court decisions, briefs, and client advice in which\nprovisions are overlooked is vast", "role": "user" }, { "content": "codification\ns take place in a legal culture that\ntreats\nCode as\nshorthand for\nfederal legislation\ninvites the\nperception that\nCode is a comprehensive statement of\nlaw\ncitation\ns are telling. The Bluebook\nfrom requiring\nonly\npublic law\nto\nonly\nU.S. Code\na clear message about what the\ncommunity considers\nauthoritative\ncasual identification of our corpus of\nlegislation with the Code\nsuggests\nlawyers\nresolve statutory issues based on\nCode, not\nfree-standing statutes\nthe set of\ndecisions, briefs, and client advice in which\nprovisions are overlooked is vast", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: No one cares about what the underlying authorization says. Studies of legal authority stop at the US Code and assume that it is binding.", "role": "system" }, { "content": "1. Evidence\nIn assessing the evidence, Barzun places too much weight on the lack of an explicit and complete pedigree in individual judicial opinions, in a way that's disconnected from ordinary norms of citation and opinion-writing. The fact that courts don't always trace their reasoning all the way back to the rule *1479 of recognition doesn't mean that there is no rule of recognition animating that reasoning; it simply means that we have to look harder and more carefully to see if there is one.\nConsider, by analogy, how courts deal with statutes in the American legal system. Federal statutes can be found in several different collections of books, most importantly in both the Statutes at Large and the United States Code. Of these two, the Statutes at Large, and not the U.S. Code, is the more legally authoritative source.154 The reason for this is that the Statutes at Large contains nearly everything enacted by Congress pursuant to the process laid out in Article I.155 The U.S. Code is assembled outside of the lawmaking process by the Office of the Law Revision Counsel, a group of unelected officials appointed by the Speaker of the House to recompile and reorganize the enacted text.156 (Some volumes of the Code are sometimes then enacted by Congress and thereby turned into positive law,157 at least until those volumes are again amended by new statutes.158)\nIf you looked only at the citation practices of the Supreme Court, you might well be ignorant of all this. Many opinions addressing federal statutes provide citations to the U.S. Code, without in turn tracing those provisions back to their exact pedigree in the Statutes at Large, let alone to the provisions that empower Congress to enact laws.159 Sometimes, U.S. Code citations are even required by rules of court.160 But it would be a mistake to conclude from this citation practice that there is no legal hierarchy between the Code and the Statutes at Large--or that this citation practice reflects any abandonment of the requirements of Article I.\nRather, one has to look a little harder to discover the true official story of federal statutory law. For one thing, the Code and the Statutes themselves *1480 agree on their relative authority.161 And in the rare cases in which the question becomes relevant, legal experts do indeed remember the true hierarchy. In U.S. National Bank of Oregon v. Independent Insurance Agents of America,162 the Supreme Court considered the validity of the Act of Sept. 7, 1916, 39 Stat. 753, part of which had been omitted from the U.S. Code for over forty years “with a note indicating that Congress had repealed it in 1918.”163 Nonetheless, the Court concluded that the omitted statute was still legally operative, construing the repealing act more narrowly than the codifiers had--and applying the oft-forgotten rule that the U.S. Code is merely “‘prima facie’ evidence that the provision has the force of law,” while the Statutes at Large are “legal evidence.”164 Indeed, even the “enacted” titles of the U.S. Code, which do enjoy the status of “legal evidence,”165 are displaced by subsequent uncodified provisions of the Statutes at Large--for example, the provisions governing the appointment of the FBI director.166\nMuch of our legal system lacks the formality of the U.S. Code. But this example confirms that the first layer of legal citations doesn't always reflect the deep structure of the law. Lawyers and judges use the U.S. Code on a daily basis, and often they might forget to double-check the law that lies beneath it.167 For the same reasons, lawyers and judges might write extensively about the income tax without first reciting the portions of the Sixteenth Amendment that authorized it (or the portions of Article V that authorize amendments, of Article VII that discuss ratification, etc.).168 The hierarchy matters when a relevant question is raised.", "role": "user" }, { "content": "Consider\nhow courts deal with statutes in the American legal system. Federal statutes can be found in several different collections of books, most importantly in\nthe Statutes at Large and the U\nS\nCode. Of these\nthe Statutes at Large, and not the\nCode, is\nmore legally authoritative\nThe reason\nis that the Statutes\ncontains nearly everything enacted by Congress pursuant to the process laid out in Article I\nThe U.S. Code is assembled outside of the lawmaking process by the O\nL\nR\nC\na group of unelected officials appointed\nto recompile and reorganize the enacted text\nIf you looked only at the citation practices of the Supreme Court, you might well be ignorant of all this\nopinions addressing federal statutes provide citations to\nU.S. Code, without in turn tracing those provisions back to their exact pedigree in the Statutes at Large, let alone to the provisions that empower Congress to enact laws\nMuch of our legal system lacks the formality of the U.S. Code. But this example confirms that the first layer of legal citations doesn't\nreflect the deep structure of the law. Lawyers and judges use the U.S. Code on a daily basis\nand often\nforget to double-check the law that lies beneath\nlawyers and judges might write extensively about the income tax without first reciting the portions of the Sixteenth Amendment that authorized it", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: No one cares about what the underlying authorization says. Studies of legal authority stop at the US Code and assume that it is binding.", "role": "system" }, { "content": "Consider\nhow courts deal with statutes in the American legal system. Federal statutes can be found in several different collections of books, most importantly in\nthe Statutes at Large and the U\nS\nCode. Of these\nthe Statutes at Large, and not the\nCode, is\nmore legally authoritative\nThe reason\nis that the Statutes\ncontains nearly everything enacted by Congress pursuant to the process laid out in Article I\nThe U.S. Code is assembled outside of the lawmaking process by the O\nL\nR\nC\na group of unelected officials appointed\nto recompile and reorganize the enacted text\nIf you looked only at the citation practices of the Supreme Court, you might well be ignorant of all this\nopinions addressing federal statutes provide citations to\nU.S. Code, without in turn tracing those provisions back to their exact pedigree in the Statutes at Large, let alone to the provisions that empower Congress to enact laws\nMuch of our legal system lacks the formality of the U.S. Code. But this example confirms that the first layer of legal citations doesn't\nreflect the deep structure of the law. Lawyers and judges use the U.S. Code on a daily basis\nand often\nforget to double-check the law that lies beneath\nlawyers and judges might write extensively about the income tax without first reciting the portions of the Sixteenth Amendment that authorized it", "role": "user" }, { "content": "statutes\nAmerican legal system\nseveral different collections of books\nStatutes at Large\nU\nS\nCode\nStatutes at Large\nnot\nCode\nmore legally authoritative\nreason\nU.S. Code\noutside\nlawmaking process\nO\nL\nR\nC\nunelected officials\nrecompile\nreorganize\nlook\nonly at\ncitation\ns of the Supreme Court, you\nbe ignorant of\nthis\naddressing federal statutes\ncit\nU.S. Code\nwithout\ntracing\nback to their exact pedigree in the Statutes at Large, let alone to the provisions that empower Congress to enact laws\nfirst layer of legal citations doesn't\nreflect\ndeep structure\nuse the U.S. Code on a daily basis\noften\nforget\ndouble-check the law\nbeneath\nincome tax\nSixteenth Amendment\nauthorized it", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: No one cares about what the underlying authorization says. Studies of legal authority stop at the US Code and assume that it is binding.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "Consider\nhow courts deal with statutes in the American legal system. Federal statutes can be found in several different collections of books, most importantly in\nthe Statutes at Large and the U\nS\nCode. Of these\nthe Statutes at Large, and not the\nCode, is\nmore legally authoritative\nThe reason\nis that the Statutes\ncontains nearly everything enacted by Congress pursuant to the process laid out in Article I\nThe U.S. Code is assembled outside of the lawmaking process by the O\nL\nR\nC\na group of unelected officials appointed\nto recompile and reorganize the enacted text\nIf you looked only at the citation practices of the Supreme Court, you might well be ignorant of all this\nopinions addressing federal statutes provide citations to\nU.S. Code, without in turn tracing those provisions back to their exact pedigree in the Statutes at Large, let alone to the provisions that empower Congress to enact laws\nMuch of our legal system lacks the formality of the U.S. Code. But this example confirms that the first layer of legal citations doesn't\nreflect the deep structure of the law. Lawyers and judges use the U.S. Code on a daily basis\nand often\nforget to double-check the law that lies beneath\nlawyers and judges might write extensively about the income tax without first reciting the portions of the Sixteenth Amendment that authorized it", "role": "user" }, { "content": "Federal statutes can be found in\nthe Statutes at Large and\nU\nS\nCode\nthe Statutes at Large\nis\nmore legally authoritative\nCode is assembled outside\nthe lawmaking process by\nO\nL\nR\nC\nIf you look\nonly at\ncitation\ns of the Supreme Court, you\nbe ignorant of\nthis\nopinions addressing\nstatutes\ncit\nU.S. Code, without\ntracing those\nto\nthe Statutes at Large\nLawyers and judges use\nU.S. Code\ndaily\nand\nforget to double-check\nlaw\nbeneath", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: US Code is a summary of the law---NOT the law itself. Specifically, the ‘antitrust laws’ are the underlying laws found in the Statutes at Large, NOT their codified distillation.", "role": "system" }, { "content": "¶1 Pretty much every legal researcher in the United States has to deal with federal statutes. Even in what is mostly a state practice, federal issues arise. Just handling divorces? Think about possible social security benefits post-retirement and who will claim the kids as dependents on federal tax returns. Defending clients charged with state crimes? Remember the criminal procedure guarantees from the United States Constitution. Helping a client set up a business? Don't forget federal labor, trademark, tax, and environmental laws.\n¶2 Most of us can find our way around the United States Code, United States Code Annotated, United States Code Service, and United States Statutes at Large. But I still had some questions about codification, so I went exploring, and in this article I will share with you what I learned.\nThe Basic Spiel\n¶3 First there are the basics that we often teach to students:\n• When a law is enacted--passed by the House and the Senate and signed by the President--it is given a public law number reflecting when it was passed (which *546 “Congress”) and the order it came within that Congress. For example, Pub. L. No. 108-1 was the first law of the 108th Congress.2\n• Laws are published in chronological order in United States Statutes at Large (Stat.).\n• Because that chronological arrangement isn't efficient for researchers (imagine looking at every volume since 1935 to find all the amendments to the Social Security Act!), the laws are sorted into subjects (“codified”) in the United States Code (U.S.C.).\n• The U.S.C. is divided into fifty titles with broad subjects--e.g., title 7, Agriculture; title 8, Aliens (i.e., immigration and naturalization); title 20, Education. You can't assume too much about the title groupings though. For instance, federal employment discrimination laws are in title 42, Public Welfare, and not title 20, Labor, as you might guess.\n• Titles are divided into sections. If you look at the table of contents, you'll see that they're grouped into chapters and subchapters, but you don't cite those--just the title and the section.\n• Small changes are made in codification to make cross-references work--for instance, changing a reference to a section within the act to a section in the Code.3\n• Private publishers put out annotated editions of the United States Code-- United States Code Annotated (U.S.C.A.) and United States Code Service (U.S.C.S.)--that are even more useful for researchers. They include the text of the laws, with the same numbering as U.S.C., and following each section of the code they also list relevant secondary sources and give brief summaries of cases.4\n• These sets are generally much more current than the U.S.C.--another big bonus for researchers. You update by checking pocket parts and supplements at the end of the sets. The versions on Westlaw or LexisNexis are even more up to date.\n¶4 Sometimes a student asks, “If the U.S.C. is easier for researchers, why would we ever look at Statutes at Large?” I start with this answer: Sometimes you care about the whole act as Congress passed it, before it was split up and codified, and sometimes you want to see when a particular provision was added. Moreover, if there's any change in language between Statutes at Large and U.S.C., the language *547 in Statutes at Large governs. The United States Code is only prima facie evidence of the law for much of the code. But some titles (marked with asterisks at the front of the bound volumes) have been enacted into positive law.\n¶5 And that's where the questions can start us on our way out to sea. What is “positive law”? What difference does it really make in practice? How often does it come up that there's a typo or some other change in the United States Code?. What other changes would there be, anyway? Why did Congress enact those titles as positive law? Is Congress going to enact any more?\n¶6 After we look at sample pages from the official and annotated codes, someone often asks, “If U.S.C.A. and U.S.C.S. are so handy, why should we bother with U.S.C.?” Short answer: Because the Bluebook says you have to. A longer answer would add that it's often helpful to be able to see a chapter or subchapter printed on big pages without annotations to figure out how the sections fit together. Sometimes you want a copy of just the statute, without all the pages of annotations in between sections. And then one could add: “Well, because it's official, and if there's a typo in one of the others, the U.S.C. version would count.” But then you'd only have somebody ask: “Come on, how often does that really happen?”5\n¶7 It is questions like these that I want to address here. We still won't have time to spell out all the details about positive law and codification in a short class, but we will know more ourselves and be better able to answer student questions.6\nPrima Facie Evidence of the Law\n¶8 The United States Code self-referentially provides that it is “prima facie” evidence of the general and permanent laws in force at a given date-- except that the titles that have been enacted as positive law are “legal evidence of the laws therein contained ....”7 In contrast, the Statutes at Large are “legal evidence of laws ....”8 The difference between prima facie and legal evidence is this:\nIf you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because the Statutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence.9\n¶9 And there are cases where that has happened. For example, the Treasury Department once relied on a provision in the United States Code that did not reflect an amendment, so the agency's regulation imposed a requirement on taxpayers that *548 was not in the current statute. The I.R.S. tried to collect, based on the regulation, but the court went back to the Statutes at Large and held for the taxpayer.10\n¶10 Another example, while harder to explain, illustrates some of the benefits and hazards of codification. Section 4 of the Clayton Act creates a private cause of action--with treble damages--for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ....”11 In the 1934 United States Code, that section was codified in title 15, section 15 (as it is still, with amendments).\n¶11 What laws are “the antitrust laws”? They're listed in section 1 of the Clayton Act:\n“[A]ntitrust laws,” as used herein, includes the Act entitled “An Act to protect trade and commerce against unlawful restraints and monopolies,” approved July second, eighteen hundred and ninety; sections seventy-three to seventy-seven, inclusive, of an Act entitled “An Act to reduce taxation, to provide revenue for the Government, and for other purposes,” of August twenty-seventh, eighteen hundred and ninety-four; an Act entitled “An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled ‘An Act to reduce taxation, to provide revenue for the Government, and for other purposes,”’ approved February twelfth, nineteen hundred and thirteen; and also this Act.12\nIn the 1934 United States Code, this definition appeared in title 15, section 12 as: “‘Antitrust laws', as used in sections 12 to 27, inclusive, of this chapter, includes sections 1 to 27, inclusive, of this chapter.” Right there you can see an advantage of codification: the definition in the code is much easier to read than the one in the session law, isn't it?13\n¶12 In 1936, section 1 of the Robinson-Patman Act14 explicitly amended section 2 of the Clayton Act, codified at 15 U.S.C. § 13.15 The other three sections of the Robinson-Patman Act did not explicitly amend the Clayton Act, but they were codified nearby, in new sections 13a, 13b, and 13c. The 1940 United States Code (and later editions) did not change the definition of “antitrust laws.”\n¶13 In the 1950s, some plaintiffs sued for treble damages under section 3 of the Robinson-Patman Act. Would that be allowed? On the one hand, the Robinson-Patman Act was codified within the range for “antitrust laws” listed in 15 U.S.C. § 12. On the other hand, section 3 of the Robinson-Patman Act isn't listed in the definition of “antitrust laws” in the Clayton Act. (It was passed later, so how could it be?) The Supreme Court said that the location of the codified sections did not make them part of the “antitrust laws”: “[T]he 1940 codification was a palpable error. Moreover, this codification seems to us ... to be manifestly inconsistent with the Robinson-Patman Act, and in such circumstances Congress has specifically *549 provided that the underlying statute must prevail.”16 While we think of the United States Code as law, Congress did not vote on and the President did not sign the 1940 United States Code--so it was necessary to go back to the session laws to see what was enacted.17\nWhy Only Prima Facie Evidence?\n¶14 Why is the United States Code only prima facie evidence of the laws? The rule could certainly be otherwise. Congress could have said that the United States Code is the definitive statement of the law, without resort to Statutes at Large, as some states do for their codes.18 Why didn't it? The short answer is: because too many mistakes find their way into a project as big as a code of all the laws of the United States. The Senate insisted that the new code not be binding, just in case.", "role": "user" }, { "content": "Most of us can find our way around the United States Code\nWhen a law is enacted\nit is given a public law number reflecting when it was passed\nLaws are published in chronological order in United States Statutes at Large\nBecause that chronological arrangement isn't efficient for researchers\nthe laws are\ncodified\nin the United States Code\nThe U\nS\nCode self-referentially provides that it is “prima facie” evidence of the general and permanent laws in force at a given date\nIn contrast, the Statutes at Large are “legal evidence of laws\nThe difference\nis this\nIf you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because\nStatutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence\nAn\nexample\nillustrates some of the benefits and hazards of codification. Section 4 of the Clayton Act creates a private cause of action--with treble damages--for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws\nWhat laws are “the antitrust laws”? They're listed in section 1 of the Clayton Act\nIn the\nU\nS\nCode, this definition appeared\nas: “‘Antitrust laws'\nincludes sections 1 to 27\nof this chapter\nyou can see an advantage of codification: the definition in the code is much easier to read\nOn the one hand, the Robinson-Patman Act was codified within the range for “antitrust laws”\nOn the other hand, section 3\nisn't listed in the definition\nin the Clayton Act\nThe Supreme Court said that the\nthe codified sections did not make them part of the “antitrust laws”:\nCongress\nspecifically\nprovided that the underlying statute must prevail\nWhile we think of the U\nS\nCode as law, Congress did not vote on and the President did not sign the\nU\nS\nCode\nbecause\nmistakes find their way into a project as big as a code of all the laws\nThe Senate insisted that the new code not be binding, just in case", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: US Code is a summary of the law---NOT the law itself. Specifically, the ‘antitrust laws’ are the underlying laws found in the Statutes at Large, NOT their codified distillation.", "role": "system" }, { "content": "Most of us can find our way around the United States Code\nWhen a law is enacted\nit is given a public law number reflecting when it was passed\nLaws are published in chronological order in United States Statutes at Large\nBecause that chronological arrangement isn't efficient for researchers\nthe laws are\ncodified\nin the United States Code\nThe U\nS\nCode self-referentially provides that it is “prima facie” evidence of the general and permanent laws in force at a given date\nIn contrast, the Statutes at Large are “legal evidence of laws\nThe difference\nis this\nIf you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because\nStatutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence\nAn\nexample\nillustrates some of the benefits and hazards of codification. Section 4 of the Clayton Act creates a private cause of action--with treble damages--for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws\nWhat laws are “the antitrust laws”? They're listed in section 1 of the Clayton Act\nIn the\nU\nS\nCode, this definition appeared\nas: “‘Antitrust laws'\nincludes sections 1 to 27\nof this chapter\nyou can see an advantage of codification: the definition in the code is much easier to read\nOn the one hand, the Robinson-Patman Act was codified within the range for “antitrust laws”\nOn the other hand, section 3\nisn't listed in the definition\nin the Clayton Act\nThe Supreme Court said that the\nthe codified sections did not make them part of the “antitrust laws”:\nCongress\nspecifically\nprovided that the underlying statute must prevail\nWhile we think of the U\nS\nCode as law, Congress did not vote on and the President did not sign the\nU\nS\nCode\nbecause\nmistakes find their way into a project as big as a code of all the laws\nThe Senate insisted that the new code not be binding, just in case", "role": "user" }, { "content": "United States Code\nenacted\npublic law number\nchronological\nStatutes at Large\nchronological\nefficient for researchers\ncodified\nU\nS\nCode\nU\nS\nCode self-referentially provides\n“prima facie” evidence\ngeneral and permanent laws\ncontrast\nStatutes at Large\n“legal ev\nof laws\ndifference\nthis\nU\nS\nCode\nnot an accurate statement\nprevail\nStatutes at Large\nlegal evidence\nonly prima facie\nAn\nexample\nbenefits\nhazards\nSection 4 of the Clayton Act\ntreble damages\nantitrust laws\n“the antitrust laws”?\nsection 1 of the Clayton Act\nU\nS\nCode\nappeared\nsections 1 to 27\nof this chapter\nadvantage\nmuch easier to read\nR\nP\nA\ncodified\nsection 3\nisn't listed in the definition\nClayton Act\nSupreme Court\ncodified sections\nnot\npart of the “antitrust laws”:\nspecifically\nprovided\nunderlying statute\nthink\nU\nS\nCode\nlaw\nnot vote on\ndid not sign\nU\nS\nCode\nmistakes\ninsisted that the new code not be binding, just in case", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: US Code is a summary of the law---NOT the law itself. Specifically, the ‘antitrust laws’ are the underlying laws found in the Statutes at Large, NOT their codified distillation.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "Most of us can find our way around the United States Code\nWhen a law is enacted\nit is given a public law number reflecting when it was passed\nLaws are published in chronological order in United States Statutes at Large\nBecause that chronological arrangement isn't efficient for researchers\nthe laws are\ncodified\nin the United States Code\nThe U\nS\nCode self-referentially provides that it is “prima facie” evidence of the general and permanent laws in force at a given date\nIn contrast, the Statutes at Large are “legal evidence of laws\nThe difference\nis this\nIf you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because\nStatutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence\nAn\nexample\nillustrates some of the benefits and hazards of codification. Section 4 of the Clayton Act creates a private cause of action--with treble damages--for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws\nWhat laws are “the antitrust laws”? They're listed in section 1 of the Clayton Act\nIn the\nU\nS\nCode, this definition appeared\nas: “‘Antitrust laws'\nincludes sections 1 to 27\nof this chapter\nyou can see an advantage of codification: the definition in the code is much easier to read\nOn the one hand, the Robinson-Patman Act was codified within the range for “antitrust laws”\nOn the other hand, section 3\nisn't listed in the definition\nin the Clayton Act\nThe Supreme Court said that the\nthe codified sections did not make them part of the “antitrust laws”:\nCongress\nspecifically\nprovided that the underlying statute must prevail\nWhile we think of the U\nS\nCode as law, Congress did not vote on and the President did not sign the\nU\nS\nCode\nbecause\nmistakes find their way into a project as big as a code of all the laws\nThe Senate insisted that the new code not be binding, just in case", "role": "user" }, { "content": "When\nlaw is enacted\nit is\npublic law\nin\nStatutes at Large\nfor researchers\nlaws are\ncodified\nin\nU\nS\nCode\nThe\nCode\nprovides\n“prima facie” evidence of\nlaws\nIn contrast, the Statutes at Large are “legal ev\nof laws\nThe difference\nis\nIf you\ncite\nCode, your adversary may\nshow\nCode is not\naccurate\nClayton\ncreates\ntreble damages--for\nthe antitrust laws\nWhat\nare “the antitrust laws”?\nR\nP\nA\nwas codified within\nrange for “antitrust laws”\nThe Supreme Court said\nthe codified sections\nnot\npart of the “antitrust laws”:\nWhile we think of\nCode as law, Congress did not vote on and the President did not sign\nU\nS\nCode", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: What is cited is irrelevant---the ‘laws’ are exclusively the Statutes at Large.", "role": "system" }, { "content": "On March 18, 1947, one of the great justices, Felix Frankfurter, gave one of the great speeches on statutory interpretation. He called it “Some Reflections on the Reading of Statutes.”1 Sixty years later, we consider his speech a classic on how to read the statutes. The irony, however, is that we no longer read the statutes. Not in the sense that Frankfurter did. Frankfurter actually did read the actual statutes. He did not read the United States Code; he read the Statutes at Large. He jauntily described himself as “one for whom the Statutes at Large constitute his staple reading.”2 Frankfurter, in other words, did not read imitation law; he read real law. So did everyone else, in Frankfurter's day.\nNowadays, we don't. We read imitation law.\nConsider: A text passes both houses of Congress. It is printed on parchment and presented to the President. If it becomes law, it is sent to the National Archives and preserved there. These texts, not *284 any others, are the “Laws of the United States” that form part of the “supreme Law of the Land.”3 They are session laws, and from the early days we have published them in a set of books called the United States Statutes at Large.\nWe do not read them anymore. We do not cite to them, we do not quote from them, and--the most recent development--we do not use them in statutory interpretation.\nWe do not like to read session laws, of course. It can be tough going. “Many laws on which lawmakers are asked to vote are not in fact readable, consisting as they do of a string of amendments to existing laws, changing three words in subsection 5 of section 2 of article 7 of something already on the books.”4 Who wants to read that?\nSo we read the United States Code instead. The Code is--no disrespect intended--a Frankenstein's monster of session laws. The Code is made by taking the session laws, hacking them to pieces, rearranging them, and stitching them back together in a way that gives them false life. Many pieces are altered, and many others are thrown away. The result is something like a Cliffs Notes guide to the real law. That is all the Code is, and that is all it is supposed to be.\nThe Code is prepared by the Office of the Law Revision Counsel, which operates under the supervision of the Committee on the Judiciary of the House of Representatives. The head of that office in Frankfurter's day, Dr. Charles Zinn, explained that the Code organizes the session laws “so that you will be able to find them with less trouble than you would have by referring only to the Statutes at Large.”5 The Code is not law; it is a law locator, and a very useful one.\nThe Code is at its most useful when one session law has been amended by another: “[T]o find the present status of that law would *285 be difficult if the search were limited to the Statutes at Large. ... [I]t would be necessary to go through each volume of the Statutes at Large since the original enactment and try to piece it all together.”6 The Code carries out the amendments for us, ministerially (for the most part), giving us a single clean text. The rest of the amendatory statute, with all its clues to meaning-- titles, headings; findings, purposes; structure, arrangement--is thrown away.\nThe Code can also be useful when one session law affects another without directly amending it--but only if we recognize what is going on behind the curtain. Consider the statute that charters the Senate's legislative drafting office: section 1303(a) of the Revenue Act of 1918 (40 Stat. 1141). The first sentence provides:\nThat there is hereby created a Legislative Drafting Service under the direction of two draftsmen, one of whom shall be appointed by the President of the Senate, and one by the Speaker of the House of Representatives, without reference to political affiliations and solely on the ground of fitness to perform the duties of the office.\nSection 602 of the Revenue Act of 1941 (55 Stat. 726) amended this by striking “President of the Senate” and inserting “President pro tempore of the Senate.” So far so good. But then, the second sentence of section 531 of the Legislative Reorganization Act of 1970 (84 Stat. 1204) provides:\n... the provisions of section 1303 of the Revenue Act of 1918 shall have no further applicability of any kind to the Speaker or to any committee, officer, employee, or property of the House of Representatives.\nHow does the Code show this? By rewriting 1303(a) holistically and placing it in two sections, 2 U.S.C. 271 and 272:\n§ 271. Establishment\nThere shall be in the Senate an office to be known as the Office of the Legislative Counsel, and to be under *286 the direction of the Legislative Counsel of the Senate.\n§ 272. Legislative Counsel\nThe Legislative Counsel shall be appointed by the President pro tempore of the Senate, without reference to political affiliations and solely on the ground of fitness to perform the duties of the office.\nConsider: What is the official name of the office? The Code gives one answer, the statutes another. How many draftsmen are at its head? A Code reader answers “one, of course,” while a session-law reader answers “literally, two ... but one is appointed by the Speaker, and 1303 no longer applies to the Speaker--so effectively, probably only one.”\nSo the single clean text of 271 and 272 tells us all we need to know--for our garden-variety legal hack work. For statutory interpretation it is useless, even misleading.\nPreparing these single clean Code texts--the faithfully ministerial ones, the aggressively holistic ones, and the many varieties in between--and placing them in the Code is called “classification,” and classification is “a matter of opinion and judgment.”7\nWhen we remember this, we are fine. The Code is just the “opinion and judgment” of one House office. Ultimately, as Abner Mikva reminded us, “it is for the courts to find the meaning of all these statutes, all the amendments to those statutes, and all the amendments to the amendments.”8\nThe Code is only “prima facie” evidence of the law,9 while the Statutes at Large is “legal” evidence,10 and “the very meaning of *287 ‘prima facie’ is that the Code cannot prevail over the Statutes at Large when the two are inconsistent.”11 Thus:\nIf you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because the Statutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence.12\nAnd yet nowadays the Code is what we cite to, quote from, and interpret. We no longer read the Statutes at Large.", "role": "user" }, { "content": "we no longer read the statutes\nFrankfurter actually did read\nactual statutes\nHe did not read the United States Code; he read the Statutes at Large\nFrankfurter\ndid not read imitation law; he read real law.\nNowadays, we don't. We read imitation law.\nConsider: A text passes both houses of Congress. It is printed on parchment and presented to the President. If it becomes law, it is sent to the National Archives and preserved there. These texts, not\nany others, are the “Laws of the United States”\nThey are\npublished\nin a set of books called the United States Statutes at Large.\nWe do not read them anymore. We do not cite\nthem, we do not quote\nthem, and\nwe do not use them in statutory interpretation\nto read session laws\ncan be tough going\nconsisting as they do of a string of amendments\nchanging three words in subsection 5 of section 2 of article 7 of something already on the books.”\nWho wants to read that?\nSo we read\nUnited States Code instead\nThe result is\na Cliffs Notes guide to the real law. That is all the Code is, and that is all it is supposed to be.\nThe Code is just the “opinion and judgment” of one House office\nit is for the courts to find the meaning of all these statutes\nThe Code is only “prima facie” evidence of the law\nwhile the Statutes at Large is “legal” evidence,\nand “the very meaning of\n‘prima facie’ is that the Code cannot prevail\nwhen the two are inconsistent\nyet nowadays the Code is what we cite to, quote from, and interpret. We no longer read the Statutes at Large.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: What is cited is irrelevant---the ‘laws’ are exclusively the Statutes at Large.", "role": "system" }, { "content": "we no longer read the statutes\nFrankfurter actually did read\nactual statutes\nHe did not read the United States Code; he read the Statutes at Large\nFrankfurter\ndid not read imitation law; he read real law.\nNowadays, we don't. We read imitation law.\nConsider: A text passes both houses of Congress. It is printed on parchment and presented to the President. If it becomes law, it is sent to the National Archives and preserved there. These texts, not\nany others, are the “Laws of the United States”\nThey are\npublished\nin a set of books called the United States Statutes at Large.\nWe do not read them anymore. We do not cite\nthem, we do not quote\nthem, and\nwe do not use them in statutory interpretation\nto read session laws\ncan be tough going\nconsisting as they do of a string of amendments\nchanging three words in subsection 5 of section 2 of article 7 of something already on the books.”\nWho wants to read that?\nSo we read\nUnited States Code instead\nThe result is\na Cliffs Notes guide to the real law. That is all the Code is, and that is all it is supposed to be.\nThe Code is just the “opinion and judgment” of one House office\nit is for the courts to find the meaning of all these statutes\nThe Code is only “prima facie” evidence of the law\nwhile the Statutes at Large is “legal” evidence,\nand “the very meaning of\n‘prima facie’ is that the Code cannot prevail\nwhen the two are inconsistent\nyet nowadays the Code is what we cite to, quote from, and interpret. We no longer read the Statutes at Large.", "role": "user" }, { "content": "no longer read the statutes\nFrankfurter\ndid read\nactual statutes\nCode\nStatutes at Large\nimitation\nreal\nNowadays, we don't. We read imitation law\nThese texts, not\nany others, are the “Laws of the U\nS\n”\nStatutes at Large\ndo not read them anymore\ndo not cite\nthem\ndo not quote\nthem\ndo not use them in statutory interpretation\ntough going\nstring of amendments\nWho wants to read that?\nU\nS\nCode instead\nCliffs Notes guide\nall the Code is, and that is all it is supposed to be.\njust\nopinion and judgment\none House office\ncourts\nprima facie\nStatutes at Large\nlegal\nvery meaning\n‘prima facie’\ncannot prevail\ninconsistent\nnowadays\nCode\ncite\nquote\nand interpret\nWe no longer read the Statutes at Large.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, highlight the text to support the argument. Highlight approximately the amount of text specified by the highlight ratio. \n\nTag: What is cited is irrelevant---the ‘laws’ are exclusively the Statutes at Large.\n\nHighlight Ratio: 0.3", "role": "system" }, { "content": "we no longer read the statutes\nFrankfurter actually did read\nactual statutes\nHe did not read the United States Code; he read the Statutes at Large\nFrankfurter\ndid not read imitation law; he read real law.\nNowadays, we don't. We read imitation law.\nConsider: A text passes both houses of Congress. It is printed on parchment and presented to the President. If it becomes law, it is sent to the National Archives and preserved there. These texts, not\nany others, are the “Laws of the United States”\nThey are\npublished\nin a set of books called the United States Statutes at Large.\nWe do not read them anymore. We do not cite\nthem, we do not quote\nthem, and\nwe do not use them in statutory interpretation\nto read session laws\ncan be tough going\nconsisting as they do of a string of amendments\nchanging three words in subsection 5 of section 2 of article 7 of something already on the books.”\nWho wants to read that?\nSo we read\nUnited States Code instead\nThe result is\na Cliffs Notes guide to the real law. That is all the Code is, and that is all it is supposed to be.\nThe Code is just the “opinion and judgment” of one House office\nit is for the courts to find the meaning of all these statutes\nThe Code is only “prima facie” evidence of the law\nwhile the Statutes at Large is “legal” evidence,\nand “the very meaning of\n‘prima facie’ is that the Code cannot prevail\nwhen the two are inconsistent\nyet nowadays the Code is what we cite to, quote from, and interpret. We no longer read the Statutes at Large.", "role": "user" }, { "content": "we no longer read\nstatutes\nWe read imitation law\nA text passes\nCongress\nis printed\npresented to the President\nsent to the\nArchives and preserved\nThese texts, not\nany others, are the “Laws of the U\nS\n”\npublished\nin\nthe\nStatutes at Large\nWe do not read them anymore\ndo not use them in\ninterpretation\nwe read\nCode instead\na Cliffs Notes guide to\nreal law\nis all\nit is supposed to be.\njust the “opinion\nof one House office\nyet\nis what we cite\nand interpret", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, underline the text to support the argument. \n\nTag: Congress has explicitly declared the two are legally distinct, regardless of appearance", "role": "system" }, { "content": "Nunez deems it critical to this particular analysis that the distinction be made among unenacted titles, enacted titles, and the actual Statutes at Large contained in them. To that end, it is instructive and helpful to set forth 1 U.S.C. § 204 (a) in its entirety.\n(a) United States Code.---The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.\nBy the express language of the Code set forth above, unenacted titles “establish prima facie the laws of the United States.” Only upon enactment by Congress does a title become “positive law the text thereof shall be legal evidence of laws...in all the courts of the United States, the several States...” 1 U.S.C. § 204. From the foregoing, it is indisputable that the only way that a title can rise to the level of legal evidence of the laws contained in it, is for such title to be enacted into positive law by Congress. The clear language of the Code says so.\nTitle 21 is intended to codify P.L. 91-513, Title II, Sec. 101 et. seq. by the 91st Congress, 2nd session on October 27, 1970, 84 stat. 1242, popularly known as the “Controlled Substances Act of 1970.” In order to properly utilize and understand the Code, one merely has to read the Code. It is a guide to itself. And, perhaps, the first critical guide is the Code's Preface written by then Chairman Roy G. Fitzgerald, dated June 30, 1926, which states in relevant part:\nIt is the ambition of the Committee on the Revision of the Laws of the House of Representatives gradually to perfect the Code by correcting errors, eliminating obsolete matter, and restating the law with logical completeness and with precision, brevity, and uniformity of expression. Title 1, U.S.C. 1982 ed., p. XII (Preface). (emphasis added).\nCongress intentionally and deliberately established the procedures and requirements for codification of the laws into the United States Code. Congress, being essentially a lawyers' body, must be presumed to know the law, and the language which it uses. By the plain language of its Preface, the Code was not intended to be an instantaneous and replicate substitute for the law. The Preface expressly contemplates something more than immediate by the words “gradually to perfect the Code by correcting errors, eliminating obsolete matter, and restating the law.”\nTo achieve the overall purpose of the Code, Congress established the Office of the Law Revision Counsel of the House of Representatives. 2 U.S.C. § 285. “The principal purpose of the Office shall be to develop and keep current an official and positive codification of the laws of the United States.” 2 U.S.C. § 285a.\nThe titles of the Code are numbered consecutively, one through fifty. The fifty titles are broken down into only two categories, enacted titles and unenacted titles. [1 U. S.C. § 204(a)]. At the end of 1 U.S.C. § 204, 1982 ed., is the most current list of titles which have been enacted into positive law. The current supplement to Title 1, 1982 ed., contains no other titles which have been enacted into positive law. Only 23 out of the 50 titles have now been enacted into positive law. The 23 titles listed are Titles 1, 3, 4, 5, 6, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 55, 37, 38, 39, 44, 46, and 49. As clearly evidenced by the Code, Title 21 has never been enacted into positive law, and is still not enacted into positive law by Congress.\nTitle enactment is not a mere technicality. Before a title can be used as positive law, it must be enacted, “Because many of the general and permanent laws that are required to be incorporated in the Code are inconsistent, redundant, and obsolete.” 1 U.S.C., 1982 ed., p. IX. (emphasis added).\nThe Code, itself, contemplates recourse to the Statutes at Large until such time as a title is duly enacted. When the Office of the Law Revision Counsel has completed revising and codifying “for enactment into positive law, each Title of the code”, “all the titles of the titles of the Code will be legal evidence...and recourse to the...Statutes at Large... will no longer be necessary.” Id. (emphasis added).\nThe cautionary language in the Code's Preface is also substantially set forth in 2 U.S.C., 1982 ed., § 285b(1), which states:\n(1) To prepare, and submit to the Committee on the Judiciary one title at a time, a complete compilation, restatement, and revision of the general and permanent laws of the United States which conforms to the understood policy, intent, and purpose of the Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections both of substance and of form, separately stated, with a view to the enactment of each title as positive law. (emphasis added).\nThe fact that Title 21 is not yet an Act of Congress is not a disputable fact. The fact that, until Title 21 is duly enacted by Congress, it cannot be used as positive law, is also not a disputable fact. Until Title 21 is duly enacted by Congress into positive law, it can only “look like” a law. Only the Office of the Law Revision Counsel is vested with the power and authority to submit the titles of the Code (one title at a time) to the Committee on the Judiciary for enactment, after all “ambiguities, contradictions, and other imperfections” are removed.\nAlthough the Government fails to recognize the difference between unenacted titles of the Code and their actual Statutes at Large, the Supreme Court makes it explicitly clear. “Though the appearance of a provision has the force of law...it is the Statutes at Large that provides the ‘legal evidence of law.’ ” U.S. Nat. Bank of Ore. v. Ins. Agents, 508 U.S. 439, 124 L.Ed. 2d 402, 414 (1993). The fact that Title 21 has never been enacted by Congress into positive law cannot by any means be deemed a mere technicality.\nCongress either meant what it said in §204(a), or it did not. To pursue the path that Congress did not mean what it said leads almost instantly into lawless and unconstitutional territory. Congressional enactment is an absolute necessity for the creation of a valid law. Indeed, § 204(a) embodies the congressional enactment requirements of Art.1, §7. The plain language of §204(a) is clear. If a title has not been enacted by Congress, it is merely prima facie evidence of the laws contained in it.", "role": "user" }, { "content": "unenacted titles “establish prima facie the laws of the United States.” Only upon enactment by Congress does a title become\nlaw the text thereof shall be legal evidence of laws\nit is indisputable that the only way that a title can rise to the level of\nlaws\nis for such title to be enacted\nby Congress\nCongress intentionally and deliberately established the procedures and requirements for codification of the laws into the U\nS\nCode\nBy the plain language of its Preface, the Code was not intended to be a\nreplicate substitute for the law. The Preface expressly contemplates something more\nthe Office of the Law Revision Counsel\ndevelop and keep current an official and positive codification\nThe Code, itself, contemplates recourse to the Statutes at Large until such time as a title is duly enacted\nuntil\nduly enacted by Congress\nit cannot be used as positive law\nUntil\nduly enacted by Congress into\nlaw, it can only “look like” a law\nAlthough\nGovernment fails to recognize the difference between unenacted titles of the Code and their actual Statutes at Large, the Supreme Court makes it explicitly clear\nThough the appearance of a provision has the force of law...it is the Statutes at Large that provides the ‘legal evidence of law\nTo pursue the path that Congress did not mean what it said leads\ninto lawless\nterritory\nenactment is an absolute necessity for the creation of a valid law\nIf a title has not been enacted by Congress, it is merely prima facie evidence of the laws contained in it.", "role": "assistant" } ]

[ { "content": "Based on the argument in the tag, emphasize the rhetorically powerful parts of the text to support the argument. \n\nTag: Congress has explicitly declared the two are legally distinct, regardless of appearance", "role": "system" }, { "content": "unenacted titles “establish prima facie the laws of the United States.” Only upon enactment by Congress does a title become\nlaw the text thereof shall be legal evidence of laws\nit is indisputable that the only way that a title can rise to the level of\nlaws\nis for such title to be enacted\nby Congress\nCongress intentionally and deliberately established the procedures and requirements for codification of the laws into the U\nS\nCode\nBy the plain language of its Preface, the Code was not intended to be a\nreplicate substitute for the law. The Preface expressly contemplates something more\nthe Office of the Law Revision Counsel\ndevelop and keep current an official and positive codification\nThe Code, itself, contemplates recourse to the Statutes at Large until such time as a title is duly enacted\nuntil\nduly enacted by Congress\nit cannot be used as positive law\nUntil\nduly enacted by Congress into\nlaw, it can only “look like” a law\nAlthough\nGovernment fails to recognize the difference between unenacted titles of the Code and their actual Statutes at Large, the Supreme Court makes it explicitly clear\nThough the appearance of a provision has the force of law...it is the Statutes at Large that provides the ‘legal evidence of law\nTo pursue the path that Congress did not mean what it said leads\ninto lawless\nterritory\nenactment is an absolute necessity for the creation of a valid law\nIf a title has not been enacted by Congress, it is merely prima facie evidence of the laws contained in it.", "role": "user" }, { "content": "unenacted\nprima facie\nOnly\nenactment by Congress\nbecome\nlaw\nlegal\nlaws\nindisputable\nonly way\nrise\nlaw\nenacted\nCongress\nintentionally\ndeliberately\ncodification\nU\nS\nCode\nCode\nnot\na\nreplicate substitute\nexpressly contemplates\nmore\nOffice of the Law Revision Counsel\nofficial\npositive codification\nCode, itself\nrecourse\nStatutes at Large\nduly enacted\nduly enacted\nCongress\npositive law\nduly enacted\ninto\nlaw\nonly “look like” a law\nGovernment\nrecognize the difference\nactual Statutes at Large\nSupreme Court\nexplicitly clear\nappearance\nhas the force of law\nStatutes at Large\nlegal evidence of law\nlawless\nterritory\nenactment\nabsolute necessity\nmerely prima facie evidence", "role": "assistant" } ]