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Volume 69, Number 1

The Commensurability Myth in Antitrust

Jan. 15, 2016—The Commensurability Myth in Antitrust ABSTRACT Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much...

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Incarceration Incentives in the Decarceration Era

Jan. 15, 2016—Incarceration Incentives in the Decarceration Era ABSTRACT After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration...

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The Regulatory Contract in the Marketplace

Jan. 15, 2016—The Regulatory Contract in the Marketplace ABSTRACT For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract—a nineteenth-century concept that stands more...

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The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit

Jan. 15, 2016—The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit ABSTRACT The United States Constitution grants Congress broad authority to issue patents and effect patent policy, and Congress primarily delegates this authority to two actors: the United States Patent and...

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The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant

Jan. 15, 2016—The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant ABSTRACT For fifty years, Griffin v. California has denied prosecutors the tactical ability to comment on a defendant’s invocation of her Fifth Amendment right to silence as substantive evidence of guilt. However, a defendant’s right to silence is...

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