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The state cannot tell religious bodies what to preach, how to preach or when to preach. Separation of church and state is a two-way street, though. Religious groups cannot dictate to or control the government. They cannot cause the government to adopt their particular doctrines as policy for everyone, they cannot cause the government to restrict other groups, etc.

The biggest threat to religious freedom is not the government — or at least, not the government acting alone. We very rarely have a situation where secular government officials act to repress any particular religion or religion in general. More common are private religious organizations acting through the government by having their own doctrines and beliefs codified into law or policy. Thus, the separation of church and state ensures that private citizens, when acting in the role of some government official, cannot have any aspect of their private religious beliefs imposed upon others.

Local officials cannot require certain religious practices on the part of government employees, for example by hosting specific, approved prayers. Government leaders cannot make members of other religions feel like they are unwanted or are second-class citizens by using their position to promote particular religious doctrines. This requires moral self-restraint on government officials, and even to a degree on private citizens — a self-restraint which is necessary for a religiously pluralistic society to survive without descending into religious civil war.

It ensures that the government remains the government of all citizens, not the government of one denomination or one religious tradition. The separation of church and state is a key constitutional liberty which protects the American public from tyranny. It protects all people from the religious tyranny of any one religious group or tradition and it protects all people from a government intent on tyrannizing some or any religious groups. Share Flipboard Email. Information Appropriation. Empirical studies suggest that appropriation by dominant platforms is having this effect.

See supra section I. Outside of the merger context, appropriation of sensitive business information by a rival is more difficult to cognize as an antitrust harm. Exclusionary conduct cases are generally governed by the rule of reason. Close The standard follows a burden-shifting approach: In the first stage, the plaintiff must show a significant anticompetitive effect.

Close If the plaintiff succeeds, then the defendant must demonstrate a legitimate procompetitive justification. Close If the defendant succeeds in doing so, then the plaintiff can show that the restraint is not reasonably necessary or that the objectives could be achieved by less restrictive alternatives. An exclusionary conduct case based on information appropriation is especially unlikely to succeed under the current antitrust framework because establishing anticompetitive effects purely on innovation-based harms is extremely challenging under the consumer welfare standard.

Close In part this is because static harms are easier to measure than innovation harms, a fact that tends to bias antitrust analysis towards a focus on price and output effects. Indeed, the antitrust agencies have focused on innovation harms in merger cases. In United States v.

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Bazaarvoice, Inc. C N. Close In part this is also because dynamic harms can involve significantly greater indeterminacy, such that conduct that yields short-term price reductions might also lead to long-term losses in innovation. It is true that the Justice Department prevailed in United States v.

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Microsoft by focusing on innovation-based harms. Microsoft, 87 F. Close Since Microsoft , however, the antitrust agencies have not brought a single case involving a pure-innovation theory of harm in a monopolization case.


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Indeed, the Supreme Court recently made it even more difficult for plaintiffs to successfully allege even price-based anticompetitive effects in certain cases. In Ohio v. American Express Co. Google LLC, No. The Shift Away from Structural Remedies. The merger guidelines strongly disfavored behavioral remedies. Close The guidelines, by contrast, established a preference for a combination of structural and conduct remedies. Close In practice, the Obama Administration proved reluctant to issue strong structural remedies in vertical cases; it approved two major vertical deals—both described by critics as raising significant anticompetitive concerns—by issuing primarily conduct remedies.

Close Concerns that Live Nation has failed to abide by the remedies in any meaningful sense have prompted the Justice Department to open a Section 2 investigation, examining whether Live Nation is indeed using its control over concert facilities to pressure customers to also use its ticketing service and retaliating against those who decline its ticket service but still seek access to the concert facility. Times Apr. Close Comcast, too, has violated the conduct remedies that enforcers imposed when permitting the merger.

These incidents raise broader questions about the relative efficacy and administrative costs of imposing conduct remedies over structural ones. Close —even as the agencies are institutionally structured to serve as enforcers rather than regulators. Stark information asymmetries between enforcers and platforms suggest that enforcing conduct remedies in digital markets will prove even more challenging. Close Given that rebalancing away from an exclusive reliance on conduct remedies in favor of structural remedies could mitigate these administrability costs and challenges, the case for structural separations in digital markets is worth assessing.

Adjusting Competition to Regulation? But in the decades since, courts and enforcers have drastically contracted the basis for antitrust liability in cases involving dominant firms. Meanwhile, even innovation harms seem to go unaddressed under the consumer welfare framework, although innovation is central to dynamic efficiency and long-term welfare. Close In instances when vertical mergers are scrutinized, moreover, growing reliance on conduct remedies has stretched the antitrust agencies beyond their institutional capacities, enabling exclusionary conduct.

Billing, U. Trinko, U. Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small. In light of these trends, the question of whether structural separations should be recovered as a tool of competition policy is salient because digital platform markets seem to favor monopolistic market structures. Growing empirical research shows that dominant tech platforms enjoy uniquely durable market power. Close Network effects and the self-reinforcing advantages can lead to winner-take-all dynamics, where markets tip early and potential entrants face significant barriers.

Close Expectations that the tech sector would be sufficiently fast-moving and rapidly innovating so as to justify a relatively hands-off approach to antitrust were too rosy. The question of how to adjust expectations of competition to the reality of its absence has an analogue.

As formerly monopolistic sectors were opened up to competition, a wave of scholarship in the s and s explored how the legal regime governing these markets should adjust accordingly. Telecommunications Policy, 24 Yale J. It overlooks the fact that the emergence of competition undermines many of the basic rationales for regulation. Close Specifically, these scholars asked: When should an increasingly competitive market lead us to abandon regulations whose justifications depend on monopoly market structure?

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And which traditional tools should apply? These questions animate this Article, with a focus on one of these tools: structural separations. As Part III will discuss, structural separations have been a mainstay tool applied to network industries and dominant intermediaries.

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While much of the focus—and criticism—of the public utility regime has centered on rate regulation, vertical separations have been less closely studied. Close Separations differ from rate regulation and several other regulatory tools in that separations are ex ante rules whose application does not require continuous government intervention or constant monitoring.

Insofar as a primary criticism of the public utility era is that many of the regulations proved too unwieldy for courts and enforcers to implement, structural separations appear far more appealing. Close Contrasted with other public utility tools, separations reduce regulatory burden and reflect humility about the capacity of public officials to manage business conduct. Two of these separations were implemented through statute, See infra sections III.

MapR Accelerates the Separation of Compute and Storage | MapR

Close two through agency regulations, See infra sections III. Close and one as an antitrust remedy. To be sure, this list is not exhaustive; lawmakers and enforcers have implemented structural prohibitions in a variety of other contexts. Close This section seeks to offer a representative sample across a few network industries to identify the range of concerns that arise when companies that play an infrastructure role in distribution networks integrate into lines of business that rely on those networks.

By , a handful of railroads had captured the market for anthracite coal. Close Through controlling both the tracks and the coal, railroads came to engage in the same kinds of discriminatory conduct that Congress had outlawed through the Interstate Commerce Act. Close Independent coal companies found, for example, that the railroads refused to provide them with sufficient cars to transport their coal to market, Note, Present Status of the Commodities Clause of the Hepburn Act, 1 St.


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  6. Louis L. Close giving the railroad-owned coal superior access to markets. Seeking to rectify this runaround, Congress included in the Hepburn Act a provision separating the function of transportation from the function of ownership over goods. Close While this specific prohibition was introduced last-minute in the Senate and therefore did not generate extensive debate, See 40 Cong. Discussions from May 7th to May 9th were conducted under the fifteen-minute rule with the Senate in the Committee of the Whole. This was by no means the first time that the separation of transportation and industry had been proposed.

    This separation had been advocated by an Pennsylvania legislative report. The House of Representatives made the same recommendation in See H.