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” because United presumably saw them as unfit only for the job they were seeking, and not from “a broad class of jobs.”47 This decision dramatically
clauses in their rules because they do not receive a deference pay-off when they do. We conclude, therefore, that if courts want to capture the potential
’ scopes do not in fact overlap, there is no conflict to resolve. If the two regimes’ scopes do overlap, however, then the court selecting between them
they are autonomous in the sense that they do not have to submit their plans to the legislature like advisory commissions or wait until there is a
to answer these questions themselves. Then there is the problem of forum shopping, which undermines federalism values by enabling litigants to
what makes them competitive theories of the nature of legal content. If (7) is in the same boat as (1)-(6), then it is a substantive theory of legal
value that they attach to the execution of their idiosyncratic vision. Investors, by contrast, value control because it allows them to minimize
creation of these customary norms and the difficulties inherent in establishing their exist- ence suggest that they should have only persuasive, not