Current Issue

Volume 72, Issue 3 (December 2022)

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Articles

Reviving Bank Antirust

Jeremy C. Kress | PDF

After decades of disuse, antitrust is back. Renewing the United States’ longstanding distrust of concentrated economic power, antimonopoly scholars have documented widespread harms of corporate “bigness” and inspired policy initiatives to de-concentrate the U.S. economy. To date, however, the new antitrust movement has largely overlooked a key cause of commercial concentration: the rapid consolidation of the U.S. banking sector. More than thirty thousand banks served local communities a century ago, but today just six financial conglomerates control half of the U.S. banking system. Bank consolidation, in turn, has spurred conglomeration throughout the economy. As the Supreme Court recognized in 1963, “[C]oncentration in banking accelerates concentration generally.”

This Article contends that scholars and policymakers have neglected bank antitrust law for the past forty years and thereby encouraged excessive consolidation in the banking sector and the broader economy. It argues that policymakers’ current approach to bank antitrust—premised on a narrow conception of consumer welfare—has failed in two critical respects. First, it has failed on its own terms, as bank mergers have increased the cost and reduced the availability of basic financial services. Second, because of its limited focus on consumer prices, the prevailing standard has ignored numerous nonprice harms stemming from bank consolidation, including diminished product quality, heightened entry barriers, and greater macroeconomic instability. To correct these shortcomings, this Article proposes a roadmap for reviving bank antitrust. It recommends strengthening the analytical tools used to identify anticompetitive bank mergers and rejecting a narrow focus on consumer prices in favor of a more comprehensive analysis of the costs that bank consolidation imposes on society. Reviving bank antitrust in this way is critical to enhancing competition in the financial sector and throughout the U.S. economy.

The Lost Right to Jury Trials in “All” Criminal Prosecutions

Andrea Roth | PDF

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the U.S. Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum, which cited the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable. Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions. Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the U.S. Department of Justice in federal criminal court. The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, implications for state defendants, and the Sixth Amendment right to counsel.

Note

United, We Stand: Expelling Autocratic States from the European Union

Zachary Sanfilippo | PDF

Since 2010, the Fidesz party has systemically and blatantly undermined Hungary’s democratic institutions. Led by the autocrat Orbán, Fidesz has rigged Hungary’s elections, packed its courts, and violated its citizens’ human rights. So far, it has done so without any real consequence from the European Union. This state cannot stand. The inefficacy of the EU’s current attempts to discipline Hungary suggests that a stronger remedy is necessary: expulsion. This Note argues that allowing expulsion of materially breaching Member States has not been foreclosed by CJEU jurisprudence and, indeed, advances the EU Treaties’ purpose of “ever closer union.” Should Member States retain their sovereign expulsion right, Article 60 VCLT operates as its guiding law. Using this framework, Hungary’s recent autocratic actions have violated the values of democracy, rule of law, and human rights contained in Article 2 TEU, which is an essential provision of “ever closer union.” As such, Hungary has likely materially breached its treaty obligations, and so is liable for expulsion. Whether there is the political will to achieve the required unanimity to effect expulsion remains unclear. What is clear is that keeping autocracies in the Union risks the legitimacy and long-term survival of the EU project.