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Wednesday, March 3, 2004

Law and Economics in TRO-Land
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Well, the DC Circuit's Triennial Review decision--and reactions to it--will provide much fodder for bloggers over the next days and weeks. [Note to myself: Don't overindulge yourself and get bogged down in bloggerville.]

But it's hard to resist this one. John Conyers, ranking Democrat on the House Judiciary Committee, is quoted in today's Communications Daily [subscription required] as saying the court "once again showed that it is out of touch with mainstream economic concerns." Come again? As a long-standing member of the Judiciary Committee, Conyers should know better. What the court is supposed to do is interpret the law written by Congress to make sure the agency is acting consistent with its congressionally-delegated authority. The court's role is not to get touchy-feely "with mainstream economic concerns", whatever that means. That would be an odd role for the court to play. What is it supposed to do? Consult the President's Council on Econnomic Advisors, or Congress's Joint Economic Committee?

What the court did do in the TRO case is recognize that one of the principal statutory purposes of the 1996 Act is the stimulation of investment in new facilities, and that to the extent the FCC requires excessive unbundling of incumbent network facilities, this sensisble statutory goal is defeated. Interpreting a law in a way that takes proper account of the fundamental understanding of economic incentives that undergirds a statutory provision is sound judicial decision-making. And good law and economics.

posted by Randolph May @ 10:51 AM | General

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