Ipse Dixit

On March 2, 1974, a group of antitrust scholars met at the Airlie House in Warrenton, Virginia, and changed the consensus position on antitrust policy in the United States. "The Day Antitrust Died?" is a special feature of the Ipse Dixit podcast, examining that historical moment. In this episode, we interview Frederic M. Scherer, Professor of Public Policy and Corporate Management in the Aetna Chair, Emeritus at the John F. Kennedy School of Government at Harvard University. In 1974, Scherer had just left the International Institute of Management, Science Center Berlin and was about to become the director of the Federal Trade Commission's Bureau of Economics. He describes his experiences at the Airlie House Conference, how it affected his antitrust scholarship, and its broader effect on antitrust policy.

Keywords: Business and Government Policy, Law and Legal Institutions, Science¸ Technology and Public Policy

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On March 2, 1974, a group of prominent antitrust scholars convened a conference at the Airlie House in Warrenton, Virginia to discuss the future of antitrust theory and policy. At the time, the prevailing position on antitrust policy favored deconcentration of industry and relatively aggressive antitrust enforcement. But "Chicago-school" economists and lawyers challenged that consensus position, arguing that the goal of antitrust policy should be efficiency and the promotion of consumer welfare. Ultimately, the challengers prevailed, and antitrust enforcement precipitously declined.

This special feature of the Ipse Dixit podcast, hosted by Ramsi Woodcock and Brian L. Frye, investigates whether the Airlie House Conference was "the day that antitrust died." In order to answer that question, we will interview scholars who attended the conference, as well as scholars who have studied its aftermath and effects on antitrust theory and policy.

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In 1974, Republican Governor Francis Williams Sargent and Lieutenant Governor Donald Rathbun Dwight of Massachusetts released "The Sargent/Dwight Record: A Darned Good Record in Darned Bad Times" in support of their unsuccessful re-election campaign.

Sargent was elected Lieutenant Governor of Massachusetts in 1966, under Governor John Volpe, and became Governor in 1969, when President Nixon appointed Volpe Secretary of Transportation. Sargent and Dwight successfully ran for Governor and Lieutenant governor in 1970. Among other things, they dealt with the busing controversy, rejecting the demands of anti-busing advocates, and created the weekend prison furlough program. In 1974, Sargent and Dwight were defeated and succeeded by Democratic Governor Michael Dukakis and Lieutenant Governor Thomas P. O'Neill III.

The record consists of 20 tracks separated by lock-grooves, each addressing a different policy issue.

Side 1:

1. Jobs
2. Cost of Living
3. Taxes
4. Property Taxes
5. Mass Transportation
6. Highways
7. Crime & Gun Control
8. Prisons
9. Welfare
10. Education

Side 2:

1. Consumer Protection
2. Government Management (Lt. Gov. Don Dwight)
3. Human Services
4. Health Care
5. Children
6. Women
7. Business Climate (Lt. Gov. Don Dwight)
8. The Elderly
9. Environment
10. Patronage

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In this episode, Matthew Bruckner, Associate Professor of Law at Howard University School of Law, discusses his scholarship on access to bankruptcy protection for financially distressed institutions of higher education, including his recent work on bankruptcy and public colleges. Bruckner begins by describing the bankruptcy protection for organizations, and explaining why institutions of higher education effectively lack access to bankruptcy. He argues that Congress should reform federal lending law to enable institutions of higher education to reorganize. Bruckner also observes that public colleges have even more limited access to bankruptcy protection than private colleges. Listeners may be interested in his articles "Higher Ed ‘Do Not Resuscitate’ Orders" and "Bankrupting Higher Education." Bruckner is on Twitter at @Prof_Bruckner.

Keywords: Bankruptcy, Higher Ed, College, Universities, Bankrupt, Debtor, Healthcare, Chapter 11, Higher Education, Reorganization, nonprofit, for-profit, restructure, Title IV, Medicare, HHS, CMS, reorganize, fly-by-night, profiteer, chapter 9, Code

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In 1972, the Republican National Committee released an LP of excerpts from speeches by Vice President Spiro T. Agnew on RCA/Victor. The album was produced by Joseph Habig and William Mulligan. It featured the following subjects

Side 1:

1. The Greatest Issue in America Today
2. A Word to Law Abiding Americans
3. Challenge to the Hippies
4. "Effete Corps of Impudent Snobs"
5. In Defense of the Courts of the Land
6. Some Thoughts on the Democratic Party
7. A Word to America's Detractors

Side 2:

1. Some Examples of the Vice President's Wit
2. The Vice President Explains Our Asian Policy
3. In Answer to Critics of This Asian Policy
4. The Future of the Republican Party
5. The Responsibilities of Television
6. Confidence in America's Future

Agnew graduated from the University of Baltimore School of law in 1947, and first ran for political office in 1956. In 1962, he was elected Baltimore County Executive, in 1966 he was elected Governor of Maryland, and in 1968, he became Richard Nixon's running mate, and was elected Vice President.

In early 1973, the United States Attorney for the District of Maryland began investigating Agnew on suspicion of conspiracy, bribery, extortion and tax fraud, beginning when he was Baltimore County Executive and Governor of Maryland. On October 10, 1973, Agnew pleaded no contest to a single felony charge of tax evasion and resigned from office. He was replaced by House Minority Leader Gerald Ford.

In 1974, Agnew was disbarred by the Maryland Court of Appeals. Unable to practice law, he founded Pathlite, Inc., a business consultancy. In 1976, he published The Canfield Decision, a novel about an American Vice President. The novel was commercially successful, but Agnew was criticized for the protagonist's explicit anti-semitism.

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In this episode, Melissa Milewski, Senior Lecturer in American History at the University of Sussex, discusses her excellent book "Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights" (2018), which was published by Oxford University Press. Milewski begins by describing her pioneering research into civil litigation between black and white southerners from the end of the Civil War to the beginning of the Civil Rights era, including her extensive use of state archives. She observes that African-American litigants won civil actions against whites far more frequently than might be expected. And she reflects on what this history of civil litigation can tell us about race relations, racial ideology, and the role of the judicial system. Milewski is on Twitter at @MilewskiMelissa. You can buy a copy of her book here. Highly recommended!

Keywords: Jim Crow, Social Inquiry, civil law

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In this episode, Derek H. Kiernan-Johnson, Professor of Legal Writing at the University of Colorado Law School, discusses his article "The Potemkin Temptation or, The Intoxicating Effect of Rhetoric and Narrativity on American Craft Whiskey," which was published in Legal Communication & Rhetoric, the Journal of the Association of Legal Writing Directors. Kiernan-Johnson begins by briefly describing the history of whiskey production in the United States, from the colonial era to the present "craft distiller" craze. Then he describes the emergence of "Potemkin distillers," or putative craft distillers who actually purchase mass-produced generic whiskey and deceptively sell it as an "artisanal" product. He explains how and why they use narrative strategies to obscure their misleading practices, and provides some tips about how to identify ersatz craft whiskies. He closes with some regulatory proposals that could help protect consumers.

Keywords: Typography, Narrative, Persuasion, Rhetoric, Judicial Decisionmaking, Graphic Design

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In this episode, Agnieszka McPeak, Associate Professor of Law at Duquesne University School of Law, discusses her article "Disappearing Data," which was published in the Wisconsin Law Review. McPeak describes the civil discovery process, which imposes certain obligations on parties to civil actions to preserve and produce documents and other data to opposing parties. She observes that the trend toward application that produce "ephemeral data" and the concept of "privacy by design" are in tension with the traditional expectations of civil discovery. And she argues that courts should take a fact-specific approach to evaluating how to resolve that tension. McPeak is on Twitter at @socmediaJD.

Keywords: social media, spoliation, preservation, Snapchat, ephemeral, electronically stored information, discovery, electronic discovery, e-discovery, Federal Rules of Civil Procedure

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