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Articles 1 - 30 of 30
Full-Text Articles in Law
Judicial Activism, Economic Theory And The Role Of Summary Judgment In Sherman Act Conspiracy Cases: The Illogic Of Matsushita, James F. Ponsoldt, Marc J. Lewyn
Judicial Activism, Economic Theory And The Role Of Summary Judgment In Sherman Act Conspiracy Cases: The Illogic Of Matsushita, James F. Ponsoldt, Marc J. Lewyn
Scholarly Works
The proper role of neoclassical economic theory in the resolution of antitrust disputes will continue to be debated into the next administration. The Reagan Administration has succeeded in persuading the Supreme Court to incorporate laissez-faire assumptions and goals into Sherman and Clayton Antitrust Acts jurisprudence in at least three major decisions, although the long-range importance of the holdings in two of those cases remains somewhat in doubt.
One of those decisions, however, reflects more than just a disagreement about application is of the antitrust laws. In Matsushita, the Court, ordering summary judgment for defendants at the urging of the Justice …
Is "Internal Consistency" Foolish?: Reflections On An Emerging Commerce Clause Restraint On State Taxation, Walter Hellerstein
Is "Internal Consistency" Foolish?: Reflections On An Emerging Commerce Clause Restraint On State Taxation, Walter Hellerstein
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Before 1983, the Supreme Court had never uttered the phrase "internal consistency" in a state tax opinion. Since 1983, however, the Court has invoked the principle of "internal consistency" on four separate occasions in adjudicating the validity of state taxes under the commerce clause. Indeed, by 1987, the Court could refer almost casually to the "internal consistency" criterion as "the test ... we have applied in other contexts." The Court's talk of "internal consistency" cannot be dismissed as mere rhetoric. Three of the four taxes that have been put to the "internal consistency" test have flunked it; cases approving taxes …
Competition And-Or Efficiency: A Review Of West German Antimerger Law As A Model For The Proposed Treatment Of Efficiency Promotion Under Section 7 Of The Clayton Act, James F. Ponsoldt, Christian Westerhausen
Competition And-Or Efficiency: A Review Of West German Antimerger Law As A Model For The Proposed Treatment Of Efficiency Promotion Under Section 7 Of The Clayton Act, James F. Ponsoldt, Christian Westerhausen
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The purpose of this Article is to demonstrate the need for legislative change in the Clayton Act. Such change should be based upon the merger control legislation enacted in the Federal Republic of Germany ("Germany"), which explicitly recognizes an appropriate role for the efficiency effects of mergers but, at the same time, often subordinates the role of efficiency to the quite separate goal of protecting competitive markets, when those goals conflict. This Article first will briefly summarize the existing state of United States antimerger law, insofar as Section 7 of the Clayton Act and its history incorporate efficiency considerations. The …
Utility Gross Receipt Taxes And Inter-Exchange Telecommunications Carriers, Walter Hellerstein
Utility Gross Receipt Taxes And Inter-Exchange Telecommunications Carriers, Walter Hellerstein
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This article addresses whether there is any continuing justification for applying state utility gross receipts taxes to interexchange telecommunications carriers. First, the article explores the historical basis for imposing special taxes on utilities, including telecommunications companies, and observes that such levies were designed as a quid pro quo for the special rights and privileges the state granted to utilities. Next, it traces the evolution of the telecommunications industry and demonstrates that the historical rationale for imposing gross receipts taxes on the telecommunications industry no longer applies to the competitive segment of the industry in which interexchange carriers operate. The article …
Three Strikes And They're Out At The Old Ball Game: Preemption Of Performers' Rights Of Publicity Under The Copyright Act Of 1976, David E. Shipley
Three Strikes And They're Out At The Old Ball Game: Preemption Of Performers' Rights Of Publicity Under The Copyright Act Of 1976, David E. Shipley
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Presently, broadcasters and cable television companies deal directly with the two baseball leagues and the individual clubs, which in turn purport to sell all of the rights regarding the televising of the games. The players wanted to be a part of those contracts to get a bigger share of the television revenues. In the Baltimore Orioles case both sides sought a judicial resolution of their rights in the telecasts. The baseball players' demand was based on their rights of publicity in their performances. This common law right allegedly precluded the clubs and the leagues from contracting with the broadcasters for …
Introduction: A Retrospective Examination Of The Reagan Years, James F. Ponsoldt
Introduction: A Retrospective Examination Of The Reagan Years, James F. Ponsoldt
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The Antitrust Bulletin and its readers are fortunate to receive the views of the distinguished contributors to this two-issue symposium, and to receive those views in 1988, potentially a watershed year in antitrust, rather than several years earlier. Some of the authors focus upon particular antitrust issues, whereas others have chosen to take a broader view of the Reagan Administration's efforts and impact on antitrust. The articles reflect some differences of opinion, of course. The symposium as a whole, however, is marked by the recognition that the most suitable antitrust policy must balance government intervention, on the one hand, with …
The Relationship Of The Court And Defense Counsel: The Impact On Competent Representation And Proposals For Reform, Richard Klein
The Relationship Of The Court And Defense Counsel: The Impact On Competent Representation And Proposals For Reform, Richard Klein
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This Article examines the impact of the trial court upon the quality of legal assistance provided the indigent criminal defendant. The court, when confronted with public defenders so overburdened with cases that they have not had the time to adequately prepare, all too often exacerbates the situation by refusing to permit counsel additional time for investigation and preparation. The trial judge may be affected by administrative pressures to dispose of cases, move the calendar, and get pleas. The defender's overload is therefore compounded by the court's overload, and the situation results in the sacrifice of the indigent defendant's right to …
Is Disparity A Problem?, Michael Wells
Is Disparity A Problem?, Michael Wells
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Part I describes aspects of the historical and doctrinal background of judicial federalism. Part II examines the Court's treatment of the parity issue and shows how the Court's ambiguity permits both sides of the debate to avoid revealing their true objectives. Part III demonstrates that some, but not all, of the allocation doctrine can be explained in terms of a conflict between the plaintiff's litigating interest and the state's interest in maintaining the integrity of the state judicial process. A significant body of cases, however, does not fall within this framework. In these cases the Court seems to prefer state …
Stirring The Ashes: Race Class And The Future Of Civil Rights Scholarship, Fran Ansley
Stirring The Ashes: Race Class And The Future Of Civil Rights Scholarship, Fran Ansley
Scholarly Works
No abstract provided.
Women In Religious Congregations And Politics, Leslie C. Griffin
Women In Religious Congregations And Politics, Leslie C. Griffin
Scholarly Works
No abstract provided.
Exclusive Federal Jurisdiction For Implied Rule 10b-5 Actions: The Emperor Has No Clothes, Margaret V. Sachs
Exclusive Federal Jurisdiction For Implied Rule 10b-5 Actions: The Emperor Has No Clothes, Margaret V. Sachs
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Courts have long assumed the existence of exclusive federal jurisdiction over private actions implied from section 10(b) of the Securities Exchange Act of 1934 and rule 10b-5. The result is not only to restrict forum choice for rule 10b-5 claimants but also to generate a host of questions concerning the extent of federal authority: whether rule 10b-5 actions are exempt from the claim and issue preclusive effects of state court decisions; whether state courts can hear defenses and state-created claims that involve rule 10b-5; and whether federal courts can stay rule 10b-5 actions in deference to state court litigation. In …
Addendum: Civil Rights In Jeopardy, Martin A. Schwartz, Eileen Kaufman
Addendum: Civil Rights In Jeopardy, Martin A. Schwartz, Eileen Kaufman
Scholarly Works
No abstract provided.
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes: Retained Interests, Custodial Accounts And Contractual Transactions—A New Approach, Sidney Kwestel, Rena C. Seplowitz
Scholarly Works
No abstract provided.
Suggestions For The Limited Acceptance Of Compulsory Jurisdiction Of The International Court Of Justice By The United States, Louis B. Sohn
Suggestions For The Limited Acceptance Of Compulsory Jurisdiction Of The International Court Of Justice By The United States, Louis B. Sohn
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In the last few years quite a few international lawyers have been complaining about the 1985 termination (with effect on April 7, 1986) by the United States of its 1946 declaration accepting the compulsory jurisdiction of the International Court of Justice. Little attention has been paid to the fact that during the forty years since the making of this declaration many other states have changed their declarations, often several times, in order to adept them to the Court's jurisprudence and to new circumstances. By 1985, the United States declaration was in fact obsolete, and some of the reservations contained in …
A Lost Episode Of "Meeting Of The Minds": Posner, Kelman, Holmes, And Pascal, Paul J. Heald
A Lost Episode Of "Meeting Of The Minds": Posner, Kelman, Holmes, And Pascal, Paul J. Heald
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SCENE ONE: Mr. Allen enters first, carrying a sheaf of photocopied papers, and sits behind the desk. Next enter Mr. [Richard] Posner, Mr. [Blaise] Pascal, Mr. [Oliver Wendell] Holmes, and Mr. [Mark] Kelman all carrying similar papers. Holmes and Posner take seats to Allen's right; Kelman and Pascal seat themselves to Allen's left.
MR. ALLEN: Gentlemen, I would like to thank you for coming. I know that Mr. Pascal has had an especially difficult trip. I myself just flew in from the coast, and boy are my arms tired (polite chuckles from Posner and Kelman).
As you know, we are …
Test Defamation In The Workplace: False Positive Results In Detecting Lies, Aids, Or Drug Use, Elaine W. Shoben
Test Defamation In The Workplace: False Positive Results In Detecting Lies, Aids, Or Drug Use, Elaine W. Shoben
Scholarly Works
Workplace tests given to applicants or employees can be divided into two general types: (1) Tests with results that measure ability or performance on a continuous, comparative scale and (2) tests with essentially dichotomous results indicating the truth or falsity of some fact about the worker. Aptitude tests or quantified supervisorial ratings fall into the first category. They have been the subject of substantial litigation brought primarily under Title VII of the Civil Rights Act of 1964. In contrast, the second category of workplace tests has received comparatively little judicial attention. This group includes drug tests, other medical tests such …
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth-Circuit, 1983-1987, Martin A. Geer, Paul Reingold
Making Uncle Sam Pay: A Review Of Equal Access To Justice Act Cases In The Sixth-Circuit, 1983-1987, Martin A. Geer, Paul Reingold
Scholarly Works
Traditionally, the “American rule” for the award of attorneys’ fees has provided that parties will bear their own attorney costs absent the exceptional circumstances in which the losing party has acted in bad faith or the litigation has provided a substantial public benefit. For successful parties in litigation against the federal government, the doctrine of sovereign immunity has precluded an award of attorneys’ fees even if the “American rule” exceptions were met. Only the express waiver of immunity will allow a fee award for private parties who prevail against the government in judicial or administrative proceedings. Despite the existence of …
A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel
A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel
Scholarly Works
As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As …
Rationality - And The Irrational Underinclusiveness Of The Civil Rights Laws, Peter Brandon Bayer
Rationality - And The Irrational Underinclusiveness Of The Civil Rights Laws, Peter Brandon Bayer
Scholarly Works
Congress has enacted a series of civil rights laws designed to protect individuals from public an private forms of irrational discrimination. To be lawful, such civil rights statutes must conform with the definition of rationality required by the Fifth and Fourteenth Amendments. Yet, in one fashion, these statutes are as irrational as the behavior they seek to control. The statutes protect only certain classes of individuals in limited instances. This article argues that the existing civil rights laws, although integral to a free society, are but a first step. The statute will never be fully rational, never completely fair, until …
A Democratic Response To Foreign Political Offenses: The Need For Legislation To Counter Anti-Terrorism Excesses, Daniel H. Derby
A Democratic Response To Foreign Political Offenses: The Need For Legislation To Counter Anti-Terrorism Excesses, Daniel H. Derby
Scholarly Works
No abstract provided.
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz
Testamentary Substitutes—A Time For Statutory Clarification, Sidney Kwestel, Rena C. Seplowitz
Scholarly Works
No abstract provided.
Retaliatorily Discharged Employees’ Standing To Sue Under The Antitrust Laws, Gary M. Shaw
Retaliatorily Discharged Employees’ Standing To Sue Under The Antitrust Laws, Gary M. Shaw
Scholarly Works
No abstract provided.
The Case For A Post-Mortem Organ Draft And A Proposed Model Organ Draft Act, Theodore Silver
The Case For A Post-Mortem Organ Draft And A Proposed Model Organ Draft Act, Theodore Silver
Scholarly Works
No abstract provided.
The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz
The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz
Scholarly Works
No abstract provided.
Introduction: International Criminal Law – Lessons From Teaching Strategies, Daniel H. Derby
Introduction: International Criminal Law – Lessons From Teaching Strategies, Daniel H. Derby
Scholarly Works
No abstract provided.
Legal Malpractice, Professional Discipline, And Representation Of The Indigent Defendant, Richard Klein
Legal Malpractice, Professional Discipline, And Representation Of The Indigent Defendant, Richard Klein
Scholarly Works
No abstract provided.
The Dialogue Of The Heart And Head, Lynne Henderson
The Dialogue Of The Heart And Head, Lynne Henderson
Scholarly Works
No abstract provided.
Preface, Dwight Aarons
Nationwide Preclearance Of Section Five Of The 1965 Voting Rights Act: Implementing The Fifteenth Amendment, Dwight Aarons
Nationwide Preclearance Of Section Five Of The 1965 Voting Rights Act: Implementing The Fifteenth Amendment, Dwight Aarons
Scholarly Works
No abstract provided.
A Noble Ideal Whose Time Has Come, Penny White