University of Colorado Law Review

Volume 75, Issue 3, Summer 2004

FOREWORD

In our lead article, A Different Kind of Labor Law: Vagrancy Law and the Regulation of Harvest Labor, 1913-1924, Ahmed White focuses on the use of criminal vagrancy law as a means of regulating migratory agricultural labor in North Dakota between 1913 and 1924. Professor White examines efforts of the Industrial Workers of the World to assert labor rights in the face of a legal regime that relentlessly controlled migratory labor, denying workers the right to organize or engage in collective bargaining and forcing workers to accept prevailing wages. The piece is based on Professor White's extensive archival research of police magistrate dockets and local newspapers. It provides fresh insights into the conditions that preceded New Deal reforms in federal labor law and the historical use of local criminal laws as a means of controlling disenfranchised social groups.

In our second article, Saving Antitrust, Reza Dibadj answers commentators who regularly criticize antitrust for its wobbly intellectual foundations and ineffectual results. To address this malaise, this article attempts a new path: a systemic deconstruction of antitrust, followed by a reconstruction of the economic and institutional foundations of a competition law. Paradoxically, saving antitrust will require looking beyond its traditions to incorporate learnings from economic regulation. First, the piece attempts to link antitrust's modern woes to two root causes: predominantly laissez-faire economics and limited institutions. Influential commentators have falsely defined antitrust's "consumer welfare" goal according to the strictures of neoclassical price theory, while ignoring antitrust's legislative history. In parallel, they have dismissed valuable modern advances in economics. Institutionally, ex post common law adjudication is ill equipped to set economic policy. Next, the piece lays the groundwork for its proposal. Taking issue with public choice arguments, it posits that despite antitrust's current failings, government intervention is essential to protecting the integrity of markets. Also, as economic regulation has evolved it no longer makes sense to treat antitrust and regulating as separate bodies of doctrine. Finally, the article outlines the economics and institutions of a new competition law. Its economics must rest on empirical and behavioral reality. The goal should be to emulate a monopsonist consumer. Analytical methods must emphasize three elements: structural industry analysis, pragmatic market definitions, and isolation of bottlenecks to competition. A cross-industry Competition Office of limited powers should implement the approach. The ultimate goal is to preserve the integrity of markets; a happy by-product is the reconciliation of antitrust and regulation.

Our third article, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, by Professor Julian Cook, conducts an in-depth examination of the federal plea withdrawal rules and details how the current rules unfairly and adversely impact not only defendant interests in plea withdrawal, but also the fairness and constitutionality of the guilty plea process. Several years ago, Professors Albert Alschuler, Stephen Schulhofer, Robert Scott and William Stuntz wrote a series of well-received law review articles that critiqued the merits and demerits of plea bargaining. However, since then, various events have occurred that necessitate not only a reevaluation of the critical issue raised in those earlier articles, but also a more exhaustive review of the federal guilty plea process as a whole. Professor Cook examines two of those recent events—the 1997 United States Supreme Court decision in United States v. Hyde, and the December 2002 amendments to Rule 11 of the Federal Rules of Criminal Procedure—and details how these events have profoundly and adversely influenced the fairness and legitimacy of the existent plea bargaining and guilty plea processes. Through a novel application of contract law and a discussion of rational choice theory, this article details how the existing guilty plea procedure systematically betrays enforceable plea agreement. More particularly, through an illuminating and comprehensive examination of the federal plea withdrawal rules in light of contractual and constitutional standards, Professor Cook explains why this subterfuge of enforceability unfairly binds defendants to unaccepted plea offers and constricts their ability to pursue more optimal strategies in a manner unseen in standard marketplace contracts.

In our first student comment, Restoring Our Ancient Constitutional Faith, Michael Sink examines the similarities between conservative biblical interpretation and originalist constitutional interpretation. Mr. Sink discusses the perception of the Constitution as a sacred text, thus allowing for the possible cross-application of religious interpretive methods in the constitutional arena. Mr Sink then analyzes a conservative Christian movement known as primitivism, as typified by the American Restoration Movement, whereby individuals attempt to restore the faith and practice of the Christian church as found in the New Testament, all in an effort to determine the values that underlie primitivists' interpretive methods. Finally, Mr. Sink argues that certain forms of originalist interpretation, such as that advocated by Judge Robert Bork, share much in common with primitivism, and that a comparison of the two calls into question whether originalism is really value-neutral.

Our second student comment, A Local Development Agreement on Access to Sacred Lands, by Robert Retherford, looks at background issues and rising Indian voices surrounding land development in the context of an unusual agreement between the City of Boulder, Colorado and a coalition of Indian tribes. Mr. Retherford explores the current national controversy over sacred lands, the cultural roots of the debate over their development, and some of the state and federal laws on the issue. Then, Mr. Retherford describes both the Boulder agreement and the process by which it was reached. The author hopes that the experiences of Boulder and tribes with historical ties to that area can provide a model for other local governments, helping them to reach agreements that forestall controversy and promote cooperation over such lands.

In our third comment, The Academic-Industrial Complex: A Warning to Universities, James Stuart explores the opportunity costs of partnerships between university research departments and deep-pocketed industrial financiers. Mr. Stuart suggests that the norms of the academic research gift culture and the norms of the marketplace might be radically incommensurate. To the extent that these norms are at odds, universities that partner with industry ought to carefully consider how best to balance the attendant equities, including concerns regarding lost objectivity, academic freedom, and the notion that public universities exist to benefit the public. Mr. Stuart concludes with a variety of suggestions that may help ameliorate the tension in such collaborations.

Finally, in Keeping the Home Team at Home: Antitrust and Trademark Law as Weapons in the Fight Against Professional Sports Franchise Relocation, Don Nottingham argues that franchise relocations are bad for sports, effecting fan loyalty and team revenues. Examining the reasons for the rash of National Football League relocations in recent years, Mr. Nottingham concludes that a legislative solution is needed. In order to discourage teams from moving unnecessarily, Mr. Nottingham suggests that Congress should exempt the NFL from antitrust law in the context of franchise locations. Lacking such action by Congress, Mr. Nottingham suggests that the NFL should adopt new trademark rules such that a relocation would entail greater costs to a particular franchise.

THE EDITORS