Digital Commons Network^™

Antitrust 2025, Maurice Stucke

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Antitrust policy in the United States has roughly twenty to thirty year cycles. So if past cycles are reliable indicators of future ones, we are at (or approaching) a new antitrust policy cycle, with 2025 being the approximate midpoint.

Any new policy cycle will be defined by three fundamental questions: a. What is competition? b. What are the goals of competition law? c. What should be the legal standards to promote these goals?

Rather than predict the state of antitrust policy in 2025 (such as more or less cartel enforcement), this Essay maps two scenarios based on these three fundamental …

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions And Treble Damages, Alex B. Long

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Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute …

One New President, One New Patriarch And A Generous Disregard For The Constitution: A Recipe For The Continuing Decline Of Secular Russia, Robert C. Blitt

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The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church–state relations in the Russian Federation.

Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation’s constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine …

Clinical Legal Education At A Generational Crossroads, Dean Rivkin

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Clinical legal education is at a crossroads. With studies like the Macrate Report, Carnegie Foundation Report “Educating Lawyers,” and Best Practices for Legal Education there is greater focus on experiential learning. Consequently, clinics are at an inflection point regarding their future. Three distinct generations will determine the path forward: Baby Boomers, Generation X, and Millennials. Each generation brings a different set of preferences, biases, perspectives and strengths to the table. Given the changes in legal academia, what will the future hold for clinical legal education?

The following are four essays by clinicians from the three generations. They each relay their …

Should New Bills Of Rights Address Emerging International Human Rights Norms? The Challenge Of 'Defamation Of Religion', Robert C. Blitt

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The emerging international human rights norm of “defamation of religion,” an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument …

How Do (And Should) Competition Authorities Treat A Dominant Firm's Deception?, Maurice Stucke

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This Article discusses deception and its potential anticompetitive effects. Since deception lacks any redeeming ethical, moral, or economic justifications, and trust in the marketplace is paramount, multiple laws seek to deter and punish deception. Although the federal antitrust laws seek to deter acts of unfair competition, which historically included a competitor’s deception, some federal courts, recently have erected hurdles for antitrust plaintiffs injured by a monopolist’s deception. Such hurdles are contrary to the Sherman Act's legislative aim, the common law antecedents of the Sherman Act, and other congressional policies. Moreover, the courts’ legal standards for evaluating a monopolist’s deception involving …

Politics Of The Headscarf In Turkey: Masculinities, Feminism, And The Construction Of Collective Identities, Valorie K. Vojdik

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No abstract provided.

Vacating Chrysler, George Kuney

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This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …

"You Crossed The Fog Line!" - Kansas, Pretext, And The Fourth Amendment, Melanie Wilson

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This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using "fog-line" traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer …

Something Judicious This Way Comes... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael J. Higdon

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With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

Understanding The New Tennessee Small Business Investment Company Credit Act: Stimulating Economic Growth At The Intersection Of Free Market Capitalism And Government Intervention, Brian Krumm

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No abstract provided.

Don't Mistake The Proxy For The Rule: Alter Ego Liability In Tennessee, George Kuney

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No abstract provided.

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

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The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …

When The Case Gives You Lemons ... Using Negative Authority In Persuasive Legal Writing, Michael J. Higdon

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No abstract provided.

Estate Planning For The Baby Boomer, Amy Morris Hess

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No abstract provided.

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Macleod Heminway

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As a reaction to perceived and actual regulatory failures at the Securities and Exchange Commission (the SEC), from mistakes that contributed to the financial crisis to the Bernard Madoff affair, the SEC has been engaged in an operational transformation process. The growing literature on management and leadership in times of change -- change leadership literature -- offers a number of potentially valuable lenses through which we may assess reform at the SEC.

With the thought that securities regulators and others may learn valuable lessons about the SEC’s restructuring and reorganization from experts in change leadership, this Article explores a selected …

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, Eric Franklin Amarante

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If an underwriter knows that a prospectus contains a material misrepresentation, may that underwriter use the prospectus to sell securities, or would that expose the underwriter to liability under Rule 10b-5(b)? The First Circuit’s surprising and rather disconcerting answer was delivered on March 10, 2010 in Securities and Exchange Commission v. Tambone. In Tambone, the First Circuit held that the SEC could not hold underwriters liable for such misrepresentations if they did not draft the prospectus. Ostensibly, this holding is nothing more than a judicial check on the SEC’s enforcement powers under Rule 10b-5(b). However, the practical result of this …

Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Macleod Heminway

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In response to U.S. corporate failures involved in the current global financial crisis, traditional corporate finance vehicles and tools were widely used in new ways and for new purposes. Of course, one object of the U.S. government’s investment and intervention in, and exercise of influence over, private enterprise during the crisis was to provide for or ensure the provision of adequate capital funding. But its investment, intervention, and influence also represented a new way to oversee and otherwise regulate key business enterprises in the financial services and automotive sectors. This Article reviews certain aspects of the use of preferred stock, …

Is There An Unreasonable Accommodation? Is There A Due Hardship?, Alex B. Long

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No abstract provided.

Viva State Employment Law - State Law Retaliation Claims In A Post-Crawford/Burlington Northern World, Alex B. Long

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No abstract provided.

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

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This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …

Whistling Dixie About The Irs Whistleblower Program Thanks To The Irc Confidentiality Restrictions, Michelle M. Kwon

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The Internal Revenue Service has been authorized for many years to pay awards to individuals who blow the whistle on those who do not pay their taxes. But the whistleblower program was underused and ineffective. In 2006, Congress modified the whistleblower program to boost the IRS’s authority to pay cash awards to tax whistleblowers. The premise of the article is that Congress did not go far enough in 2006 in light of the confidentiality restrictions in Internal Revenue Code Section 6103. As currently written, Section 6103 essentially prohibits the IRS from disclosing to the whistleblower tax information of the purportedly …

An Exclusionary Rule For Police Lies, Melanie Wilson

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Although the Supreme Court has often said that truth is an imperative to justice, we now know that police officers, the key investigative component in our criminal justice system, lie. How often do the police lie? No one knows for sure. But credible reports of police lies are common.

Because our legal system treats the police as if they were impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality, the criminal justice system lacks the appropriate structure to expose and effectively deal with …

Book Review - Richard Hyland's Gifts: A Study In Comparative Law, Iris Goodwin

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This essay is a lengthy review of Richard Hyland's Gifts: A Study in Comparative Law (OUP, 2009), a masterpiece of comparative law scholarship.

Lessons From The Financial Crisis, Maurice Stucke

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What lessons can we learn from the financial crisis concerning the issues of systemic risk, firms too big to fail, and the income inequality in the United States today?

In light of the public anger over the financial crisis and bailouts to firms deemed too big to fail, this Essay first addresses the issue of systemic risk posed by mergers generally and those in the financial services industries specifically. The federal government heard concerns in the 1990s about mega-mergers in the financial industry. The Department of Justice, for example, heard concerns that the Citibank-Travelers merger would create an institution too …

Through A Glass Darkly: Using Brain Science And Visual Rhetoric To Gain A Professional Perspective On Visual Advocacy, Lucille Jewel

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American legal culture, tracking the trend within the media culture as a whole, has become inherently more visual. Visual competency is now required for effective persuasion in the courtroom and in a variety of other advocacy settings. The central thesis of this Article is that visual advocacy is here to stay, but that there is a large knowledge gap that prevents advocates from being able to evaluate the professionalism of their own visual arguments and properly respond to the visual arguments submitted by their opposing counsel.

Accordingly, this Article offers a detailed outline of the knowledge bases that attorneys need …

Money, Is That What I Want?: Competition Policy & The Role Of Behavioral Economics, Maurice Stucke

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Although the behavioral economics and happiness economic literature are hot areas in legal and economic scholarship, the U.S. policymakers, until recently, have not embraced the literature. That is changing with the financial crisis. Policymakers are re-examining the assumptions underlying many neoclassical economic theories embedded in their policies.

This article addresses one cornerstone of neoclassical economic theory, namely that rational consumers pursue their economic self-interests. It is commonly associated with Adam Smith’s famous statement: “It is not from the benevolence of the butcher, the brewer, or the baker, that we can expect our dinner, but from their regard to their own …

When A Monopolist Deceives, Maurice Stucke

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This essay uses one context - a monopolist’s deceptive advertising or product disparagement - to illustrate how competition authorities and courts should evaluate a monopolist’s deception under the federal antitrust laws. Competition authorities should target a monopolist’s anticompetitive deception, which courts should treat as a prima facie violation of the Sherman Act without requiring a full-blown rule of reason analysis or an arbitrary, multi-factor standard.

The Best Of Times, The Worst Of Times: Securities Regulation Scholarship And Teaching In The Global Financial Crisis, Joan Macleod Heminway

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This short piece is an annotated version of remarks that I gave to introduce a roundtable discussion on securities regulation scholarship at the University of Maryland School of Law program on “Corporate Governance and Securities Law Responses to the Financial Crisis” held on April 17, 2009. The piece represents my current thoughts about what it is like to teach, research, and write in the area of securities regulation. Ultimately, the message I deliver is a positive one; there is much opportunity for securities regulation teachers and scholars in an environment like the one we have been wrestling with since at …

Constructing Citizenship Without A License: The Struggle Of Undocumented Immigrants In The U.S. For Livelihoods And Recognition, Fran Ansley

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No abstract provided.