Balancing on the Edge of the Merits

I have posted a draft of my newest article - Striking an Efficient Balance: Making Sense of Antitrust Standing in Class Action Certification Motions - on SSRN.

My thesis is that a district court judge considering a motion for class certification in an antitrust class must preserve the bargaining relationship of both the putative plaintiff class and the defendant(s) through an analysis of both the Article III and antitrust standing doctrines. In the article, I demonstrate the adverse impact an imprudently certified class will have on the consuming public as a whole. I propose that by considering the antitrust standing (and thus antitrust injury) of a putative plaintiff class at the certification stage of the litigation, efficient conduct – and thereby consumer welfare – will be achieved.

The trouble is that ascertaining antitrust standing can be quite complicated, almost always invoking issues typically reserved for the merits of a case. This is problematic, because a district court judge is bound by the Supreme Court's admonishment to avoid "inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974).

I welcome any comments on the piece.

Hardball in the Preparation Market

It's a cage match. Behemoth Barbri and wiry newcomer Themis are mano a mano in the market for Pennsylvania bar review courses. Earlier this week, I saw an e-mail from a Themis rep calling out Barbri's rep for talking trash. I do love competition.

The price for the Themis course is $1395. Would you like New Jersey with that? Themis will throw in New Jersey prep for $100. You may want to add a state essay review for $795 for a total cost of $2280. Compare Barbri's price at $2850. It took some clicking around to even find the price on BarBri's site.

I confess I'm not over my own bar exam prep experience. I resented Barbri's monopoly. Even more, I was horrified by my own perfectly inelastic demand for its product.

Liberal Tendencies: Nature or Nurture?

My friend Buce at Underbelly had this to say about Sorting in the Academy.

Big Soup

Another child of the capitalist system has grown up to darken the horizon. It's Big Soup.

The Campbell Soup Company is serious about causing you to buy soup. And 'causing' seems to be the right word. Ilan Brat, in a piece titled The Emotional Quotient of Soup Shopping, published in the Marketplace section of today's Wall Street Journal, tells the story of the Campbell Soup Company's two-year-long project to cause you to buy more soup.

It turns out that there are squads of folks dedicated to finding out how you feel about soup. And it turns out that they can't simply rely on the method that suggests itself: asking you how you feel about soup. How come? Campbell CEO Doug Conant notes, ruefully one suspects, that when folks are asked why they eat soup or why they don't, they "say they don't think of it." That seems to be good news. It's unclear what exactly a world would look like in which all of us had sound and articulable reasons for why we do or don't eat soup, but it seems like it would be worse than this one.

There are other challenges for the soup investigators. For example, they can't get reliable information from folks about which soup labels are memorable, which are effective, and which aren't. Not that they haven't tried. But when they conducted interviews for the purpose, the interviews "didn't fully capture their [the interviewees] unconscious responses." That also seems to be good news for those of us not in the Campbell Soup Company's executive suites. If there is one thing we can yet have a reasonable expectation of privacy about, it would be impressions we don't know we have, but do.

What's a soup company to do? Apparently, use neuromarketing techniques to ferret out consumers' hidden impressions. Neuromarketing techniques have their limitations (more good news). For example, researchers can measure emotional responses in subjects, but not what the underlying emotions are. Also, the generally small sample sizes convenient for neuromarketing testing means oulier data can be mistaken for the norm. Be that as it may, here's how Campbell has used neuromarketing techniques:

"Researchers interviewed about 40 people at their homes and later in grocery stores. The team [of researchers] also clipped small video cameras to the testers [the folks corralled for the interviews and the study] at eye level and had them later watch tape of themselves shopping for soup. Special vests captured skin-moisture levels, heart rate, depth and pace of breathing, and posture [while the testers faced the grocery shelves filled with soup cans]. Sensors tracked eye movements and pupil width."

The upshot of this research? The Campbell folks think they can "boost sales by triggering more emotional responses in stores and prompting more people to focus on more soups."

And they came up with this: aside from the three iconic labels, rendered that way by Andy Warhol (chicken noodle; tomato; and cream of mushroom), new labels will feature steam rising from the "larger, more vibrant pictures of soup", which now will be contained in "modern, white bowls." Also, the spoon that heretofore held up the soup in the foreground of the labels, having been condemned as "unemotional", will go away.

I suppose this is all all right, or in any case, the way things are. But I confess a hope that at least some of the testers faced up to the shelves while hooked up to the electronics and got amorous thoughts about past lovers. That way, and mindful of the inability of the technology to detect particular emotions, researchers may have attributed really strong emotional responses, erroneously, to a bisque label or some such.

With Friends Like These...

This weekend's Wall Street Journal features a story on the state of assisted suicide in Switzerland. Specifically, the story discusses a particular player in the assisted suicide tourism market in that country, Dignitas, and dilates on the possiblity that its founder, Ludwig A. Minelli, may, by his relative extremism, cause a backlash among the generally tolerant Swiss against following the logic of free choice over ending one's life all the way to where it natually goes.

It seems that many causes and movements come to grief for the exertions of their most radical advocates. William F. Buckley, Jr., who wrote a sympathetic historical novel on the life of Joe McCarthy, was of the opinion that McCarthy, by seeing a communist nearly every place but the mirror, undermined the legitimate effort of discovering and turning out the actual communists history has shown were in place throughout the government in the 1950's.

And then there is Global Warming. The East Anglia emails (featuring Penn State professor Michael Mann; Go State!) and the unfounded prediction for the geologically imminent melting of the Himilayan ice sheets, has gone a long way toward establishing the American public's contemptuous serenity in the face of unrelenting doom talk. There have been protestations that the core science that establishes the fact of anthropogenic Global Warming (sometime recently reflagged as Climate Change; presumably as a hedge in case the practicioners of the science get the overall direction wrong) is an uncontroversial thing. We are told that the alarmist predictions and the ethically questionable behavior have been in the service of bringing us round to the realities of our peril. The end, that is, justified those means. But an unsurprising thing happened on the way to the success of that program: the architects of it failed to fool all of the people all of the time. And lost trust and legitimacy is not regained by chastising the folks from whom it is needed by telling us there would be no need to lie to us if we weren't so stupid and foolishly unconcerned.

The sort of folks who devote themselves entirely to a cause are not well suited to reminding themselves that incremental advances are a better outcome than risking the utter rejection of their cause that often comes with appearing unhinged. This is unsurprising. If, to take the example of Global Warming, a person really believes the earth will soon suffer cataclysmic damage if radical changes are not immediately adopted, it surely would seem foolish to that person that he should observe ethical guidelines not drafted with an existential threat in mind.

But surely that person would object to another adopting her own existential cause and so turning her pre-justified methods loose on him (think Torquemada, et. al. or Al Qaeda, with existential here taking on its most profound meaning). So the defense of one's methods comes down to an assertion of the correctness of one's cause. And with respect to that, history bows its weary head.