Earlier I wrote about exclusive dealings in antitrust law. As I said, the law sanctions some vertical arrangements (for example, between a distributor and a retailer) known as exclusive dealerships.

Why? Well, the idea is that it gives the retailer an incentive to provide good service. Imagine an alternate world where there weren't exclusive dealerships, and two stores opened up selling identical goods next door to one another. We might expect (and want) differentiation between the stores on the basis of a price / service continuum. One store might sell, say, cameras, for a higher price, but with more service. Obviously this isn't a stable equilibrium since everyone would just go to the next door store and buy for a lower price after benefiting from the high service. So we have exclusive dealerships (sometimes, at least). Nothing exciting there.

This reminded me of an interesting Talmudic law concept called G'neivat Da'at or "stealing one's mind." The idea is that it is unlawful for me to walk into a store and ask questions of a salesperson if I don't intend to buy the goods (either at that particular store or at all). The rationale is that the inquiry raises the hopes of the seller and takes the seller's take, and is therefore a form of theft (and morally wrong). This seems pretty similar to the behavior the allowance for exclusive distributorships intends to minimize (visiting a high-service store, purchasing from a low-service store). The neat thing about regulation through Talmudic law, rather than the FCC, is that it's much more efficient. The Talmudic law allows two stores to exist right next to each other, which may be the most convenient place for consumers, without having to worry about free-riding. Anyway, that's just a thought.

For what it's worth, the G'neivat Da'at concept is actually broader than just the salesperson example - it includes the creation of any false or misleading impressions in the marketplace. For students of corporate law, this should sound like a really, really old version of the SEC rule 10b-5.

In case GI Joe isn't realistic enough for your toy taste, you can purchase a captured Saddam Hussein action figure complete with Ace of Spades tee shirt (signifying his position in the DOD most wanted card deck). Check out those biceps!

Ahh, Rick.

My sister says below that:

Rick is the archetype, the every-expatriate, the embodiment of the moving finger that, having writ, moves on. He's the eternal (damaged) I, in the eternal present. How could he possibly ever have been some schlemiel from Hoboken who what? forget to shut off the gas line?

Rick is what, thirty-eight or forty? He was obviously a tough guy of some kind, not a cop or FBI. He's evidently not Irish or Italian, so it seems unlikely that he played a part in the mob anywhere in the East during prohibition. His accent rules out the South and labor-management goon work. His style couldn't be Omaha or Cleveland, so California is the obvious answer. He must have been connected to the hard men who worked for the Chandlers and the other moguls who made Los Angeles -- think Chinatown.

He worked for them, tough but honorable, until they asked him to do something that was more than corrupt, something that was evil, and his only way out was to kill some people who wouldn't let him live and let live. Los Angeles being corrupted as it then was, at least one of those people must have had some bigtime offical connection, although not really of course a US Senator -- maybe an LA councilman. And of course there was a woman, this is Rick after all. She betrayed him but he couldn't kill her, so he had to leave.

Given the intractability of the assumptions that both committed pro-life and committed pro-choice make, the abortion debate is often reduced to rhetoric and word play. Julian Sanchez makes a minor point for the pro-choice side:

. . . the question-begging pro-life locution "unborn children." If you don't share their view about the moral status of the fetus, that's like calling a pile of bricks an "unbuilt house" or, for that matter, a blank screen an "unwritten blog post."

Given this blog's unofficial policy of linking to everything Jeremy Reff writes, I feel bound to note that he has a new post up for the first time in five months. I'm not registered to vote in San Diego myself, but if you are, be sure to read it. And if you aren't, you can read it anyway.

Amanda's defense of State Universities below is a little bit odd. Her (admittedly brief) argument seems to be of the form "State Universities are very important to my family. They're a wonderful thing. And I would think this even if they weren't very important to my family." I know it's a little unfair to pick on somebody as they're going off to celebrate and revel, so I'll hope that the argument simply critique itself.

Something like this argument has also been common among the folks I know who defend rent control in places like Manhattan. The arguer usually begins by explaining how rent control has benefitted them, then insists that rent control is good, then says that they would feel that way even if rent control hadn't particularly benefitted them.

[Oh, and just to get my creds out in the open, state universities are very important to my family too. Both my parents and my beloved sister are employed by a state university, and all three of them have attended one at one time or another. So have I, for that matter, albeit very briefly.]

I don't particularly have a problem with government involvement in the private education market-- either through direct subsidy (which is probably unnecessary) or through regulating the likely capital market failure. In other words, government-guaranteed student loans are great; a "graduate tax" could accomplish the same thing. But it's not clear that we would want to have major government institutions quite so inextricably involved in the marketplace of ideas if it weren't for the funny historical accidents that got us here in the first place.

Lack last time, this emergency doesn't actually affect my apartment building, but it is about three blocks away.

Bored, I've been searching through the Federal Law Clerk Information System and clicked on Judge Kozinski's clerk requirements. Under "Class Standing" Kozinski writes: "Top 10 Percent." Then under "Additional Selection Criteria" he writes "I don't really mean top 10%. I mean top 10, as in people. I'm looking for amazingly intelligent Supreme Court clerk wannabes eager to slave like dogs for an unreasonably demanding boss who'll cut their work to shreds. Dweebs OK."

For anyone whose curiosity was piqued by Beth's post on toys (and Interested-Participants' thoughts on the antitrust implications of Toys-R-Us specific toys), be sure to check out Judge Wood's opinion in Toys "R" Us Inc v FTC, 221 F3d 928 (7th Cir 2000). Judge Wood is one of the bench's preeminent antitrust scholars, and the opinion touches on lots of interesting facets of the toy business.

Without going into too much detail though, I would just mention that Interested-Participant is probably unrealistically disappointed in the antitrust laws. Again, I refer readers to Judge Wood's opinion for a more thorough analysis, but I think what Interested-Participant is missing is that exclusive dealings are sometimes good. They may result in higher prices, but they have the potential to result in greater product variety and higher levels of service.

How so? Well, Hasbro, let's say, can manufacture a toy. At that point it can start advertising the toy. Or it can ask Toys-R-Us to advertise the toy as part of its general marketing campaign. Now, TRU is going to have some reservations about this, obviously, because they don't want to expend advertising dollars when Walmart is going to carry the same toy. Because TRU is spending money on advertising the toy and Walmart isn't, Walmart can offer the toy for less than TRU. Thus, antitrust laws allow for exclusive dealing arrangements to avoid the free rider problem. This pops up in other contexts as well (more on that later), but the point here is simply that we can't have a per se rule about exclusive dealings when there may be tremendous benefits associated with the facially anticompetitive behavior. Again, it's more complicated than this, but hopefully this explains why we can't just declare the behavior illegal out of hand.

In response to some discussion in class today I find myself reading through the Supreme Court's opinion in Maryland v. Craig, where the court held (over Scalia's dissent) that the defendant's constitutional right to confront witnesses against him does not apply if that person is a child accusing him of child abuse.

Therein lies one of the more O'Connor-esque formulations I have ever read:

We observed in Coy v. Iowa that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 487 U.S., at 1016 . . . We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.

Will's enquiring mind turns below to the subject of Rick Blaine's past. Now I'm no expert on quantum mechanics,

but surely Rick's past exists--by necessity--in that same box with Schroedinger's cat. If it were even possible to suppose that there were one answer and one answer only to the question of what he had done that kept him from returning home then he would be an entirely different character in an entirely different movie: Casablanca, by Pierre Menard.

I don't think I'm doctrinaire; I am sure that some literary characters do have imaginable pasts and futures that their authors did not write. It's not crazy to wonder what Mr. Darcy and Elizabeth Bennet's marriage would be like (although the well-conditioned mind boggles).

But Rick is the archetype, the every-expatriate, the embodiment of the moving finger that, having writ, moves on. He's the eternal (damaged) I, in the eternal present. How could he possibly ever have been some schlemiel from Hoboken who what? forget to shut off the gas line?

Bernstein, Balkin, Bernstein II, Juan Non-Volokh, Balkin II, and Juan Non-II (oh, you can trace it from there if I've neglected any links) have all gotten into a rather large debate on the merits or lack thereof of public universities.

And I wonder how many of them or their families attended public universities. To me, it would be a case of biting the hand that feeds me if I opposed public universities. I'm not sure — there are some random small Arkansas colleges that no longer exist under the names I know them — but I think I'm the first person in my family to attend a private university. And you think I could escape a family gathering alive if I believed in privatizing the state universities? Not a chance. They're a great thing. I wouldn't oppose them if I came from a family of four generations of Chicago students.

(a more substantive post on the wonderfulness of state universities might have existed were I not scrambling to finish a paper and then to leave town for the weekend, travelling with Illinois students to visit LSU people.)

Firstly, I'll second Professor Bainbridge's kudos to Brad Smith. I had the good fortune to listen to Mr. Smith speak earlier this summer . . . it was the first time I ever thought that one might be able to do some good in the field of election law.

Jacob Levy has some slightly unusual criticisms of the proposed Federal Marriage Amendment. And as usual, he's spot-on.

Finally, here's a speech by Paul DePodesta on the rationalist revolution he's part of in baseball. (The link is in google's cache, so it's fragile; read it while it's hot). The link is via Jeremy Blachman, who has luckily recanted his previous heresies.

Diotima, Dan Moore and Tyler Cowen all point to a study showing that when they are particularly fertile, women are likely to rate other women as less attractive. Nature concludes that this says something about the use of cattiness as a competitive tactic. Maybe.

An alternative explanation is that women who are fertile grade feel more attractive themselves, but that we instinctively grade other people's attractiveness relative to our own. There are about a bajillion other possible explanations too. I don't mean to say that this particular made-up explanation is wrong, just that this is a pretty silly game.

UPDATE: Dan Moore suggests that my explanation won't fly because the women in the study didn't downgrade the attractiveness of men. I was too careless in stating my made-up hypothesis above-- maybe women grade people of the same gender as relative to themselves, but don't do the same to people of the opposite sex (since they're not really being judged on the same scale). Or maybe there are two simultaneous effects, and women feel more attractive, therefore downgrading everybody, but also feel more attracted to men because they're feeling more fertile. Some of this could be examined by using controlled groups of homosexual, heterosexual, and bisexual women.

Or maybe this is all a coincidence stemming from a relatively small sample size.