In the law a constant stream of actual cases, more novel and more tortuous than the mere imagination could contrive, are brought up for decision-that is, formulae for docketing them must somehow be found. Hence it is necessary first to be careful with, but also to be brutal with, to torture, to fake and to override, ordinary language .... I
not pass on its savings in a market with fewer buyers than under competition. After all, only a monopolist can offer a discount, which, after running off rivals, invariably ends, replaced by competition-free price hikes. 10 When I finished my recitation, the judge set forth the jarring costs of finding a violation of the Sherman Act: millions of dollars change hands, businesses shut down, people lose jobs. The judge was unsurprised that my arguments had been lifted from a professor, since that's what professors do: they see it as their job to expand the law in their field. It's not, however, he cautioned, what courts do. The Sixth Circuit ruled unanimously in favor of defendants, affirming Judge McRae's decision below. 11 The full import of this encounter in the judge's chambers was largely lost on me until my employer, California Western School of Law [CWSL], was proposing a merger with University of California at San Diego [UCSD]. Throughout the merger discussions (2007-2011), CWSL faculty, administrators, and lay board members debated whether, in hammering out a workable arrangement with UCSD, legal barriers would arise if CWSL faculty turned out to be "fiduciaries" of the school. If faculty were fiduciaries, then it was
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