Law Commons^™

Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt

The Ohio State University Moritz College of Law Working Paper Series

Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.

Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

In recent years, the Federal Trade Commission (“FTC” or the “Commission”) has investigated several settlement agreements between pioneer and generic drug manufacturers involving “reverse payments.” In the view of the FTC, reverse payments are cash that a pioneer drug manufacturer pays to a generic manufacturer who has challenged the patent(s) protecting the pioneer drug, in exchange for the generic manufacturer’s agreement to delay market entry. Such payments sometimes occur in the settlement of patent infringement actions. The Commission has been extremely skeptical of reverse payments, viewing them as objective indicia of intent to illegally share monopoly profits that the delayed …

Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The first three months of this year have witnessed extensive enforcement activity by Italy’s Autorità Garante per la Concorrenza ed il Mercato (“AGCM”). In the closing 90 days of the chairmanship of Professor Tesauro, former Advocate General at the European Court of Justice, the AGCM initiated a number of investigations for infringement of EC competition rules in various key markets: natural gas, telecommunication services, pharmaceuticals and postal services. The cases reported below are of particular interest since they are the first examples of enforcement of EC competition rules by the AGCM in the new “modernised” system of European enforcement.

Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On December 20 and 22, the Spanish Competition Tribunal (Tribunal de Defensa de la Competencia, or TDC) dismissed three actions that were brought by Uni2 and WorldCom (both alternative fixed operators) against the three Spanish mobile operators (Telefonica Moviles, Vodafone, and Amena) for abuse of a dominant position. The complaints alleged that the three mobile operators applied a price squeeze on the corporate market segment and discriminatory pricing practices as regards mobile termination services. In particular, according to Uni2 and WorldCom, during the period of 2000-2002, the three Spanish mobile operators offered retail services to corporate clients (including pricing terms …

Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

The US Federal Trade Commission(FTC) has announced sweeping changes to the Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those governing transactions involving partnerships and LLCs, that will come into effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to reconciling the HSR analysis of LLCs, partnerships and other unincorporated entities with that of corporations, the new rules will make a number of technical adjustments and codify some informal FTC interpretations. The changes will make some transactions reportable that have historically be exempt; this effect will be offset to some extent by new exemptions from …

Antitrust And Competition Law Update: Tetra Laval--A Landmark Judgement On Ec Merger Control, Ulrich Quack, Claus-Dieter Ehlermann, James Burling, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 15 February 2005, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in the Tetra Laval/Sidel merger case.2 The ECJ’s judgment establishes two significant principles that apply beyond the facts of this particular case:The judgment confirms that the Court of First Instance (CFI) for all practical purposes will continue to be the ultimate arbiter of disputes about the Commission’s use of evidence and economic assessment in merger control proceedings. The ECJ has signaled that it will generally not entertain appeals asserting that the CFI engaged in excessive scrutiny of the Commission’s assessment and therefore overstepped the permissible …

A Response To Professor Goldberg: An Anticompetitive Restraint By Any Other Name..., Timothy J. Muris

George Mason University School of Law Working Papers Series

In ignoring the facts of the Three Tenors case and the transactions costs of legal rulemaking, Professor Goldberg would unnecessarily complicate antitrust law to the detriment of consumers. Contrary to his assertions, the FTC’s opinion does not favor ownership over contract. The parties could have chosen to coordinate Three Tenors products and promote a “brand,” but their contract explicitly provided otherwise. For a small class of cases – in which the parties restrain basic forms of competition such as price or advertising without a claim of consumer benefit – antitrust law avoids the costs of finding market power. In any …

Institutions, Incentives, And Consumer Bankruptcy Reform, Todd Zywicki

George Mason University School of Law Working Papers Series

Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary …

Mario Monti’S Legacy For Competition Policy In Article 82, Claus-Dieter Ehlermann, John Ratliff

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Commissioner Mario Monti’s impact on Article 82 of the EC Treaty during his period as EC Competition Commissioner has not been as revolutionary as his impact on other areas of EC competition law. Nonetheless, the European Commission has done serious work on Article 82 cases, notably taking several important decisions: Microsoft in the area of refusal to supply and tying and Michelin II on rebates. The European Court of Justice (ECJ) and the Court of First Instance (CFI) have also made important contributions to the law on Article 82 with their judgments in IMS Health and in appeals from these …

Major Events And Policy Issues In Ec Competition Law 2003-2004 Part 2, John Ratliff

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

This paper is the second and final part of the overview of ‘‘Major Events and Policy Issues in EC Competition law in 2004’’, following from last month’s journal. This part of the paper is divided into three sections: (1) Recent Commission decisions on cartels, co-operation, distribution and abuse of dominant position, including notably the Microsoft decision; (2) an outline of current policy issues, including possible extension of in-house privilege and possible Art.82 EC guidelines; (3) a survey of some areas of particular interest.Notably, the Commission’s recent drive topromote cempetition in the liberal professions with a decision involving Belgian Architects; recent …

Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan

Rutgers Law School (Newark) Faculty Papers

This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial, (2) Separately measuring Social Security’s long-term balance is inappropriate and misleading, (3) The methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

Soft Regulators, Tough Judges, Gerrit De Geest, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Judges have a tendency to be more demanding than regulators. In the United States, a majority of the courts has adopted the rule that the unexcused violation of a statutory standard is negligence per se. However, the converse does not hold: compliance with regulation does not relieve the injurer of tort liability. In most European legal systems, the outcome is similar. We use a framework in which, on the one hand, the effects of tort law are undermined by insolvency and evidence problems and, on the other hand, regulation is expensive in terms of monitoring and information gathering. We show …

Taxing Utility, Terrence Chorvat

George Mason University School of Law Working Papers Series

In order to assess the efficiency of a tax, we should examine its effect on the behavior of individuals. In general, the less a tax affects behavior, the more efficient it is thought to be. The standard example of a non-distorting tax is a lump-sum tax, which does not change with the behavior of the taxpayer. However, this article demonstrates that behavioral distortions can and do arise from a change in even a lump-sum tax. The only truly non-distortionary tax would be one based on utility itself. Utility, which has been used as a norm for distributional analysis, is also …

Cross-Examining The Brain: A Legal Analysis Of Neural Imaging For Credibility Impeachment, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied …

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.

Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest …

Does Obscenity Cause Moral Harm?, Andrew Koppelman

Public Law and Legal Theory Papers

This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm - a concept that modern scholarship finds hard to grasp. Liberals have not even understood the concept of moral harm, and so …

Interstate Recognition Of Same-Sex Marriages And Civil Unions: A Handbook For Judges, Andrew Koppelman

Public Law and Legal Theory Papers

Same-sex marriage is here. Massachusetts now recognizes such marriages, and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont recognizes "civil unions," and California recognizes "domestic partnerships," that have virtually all the rights of marriage. Are these statuses exportable? Will same-sex unions be recognized in other states? The answer should not be mysterious. There is a well developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, the answer is, it depends. This …

Antitrust And Competition Law Update: Hsr Filing Thresholds Increased For Inflation Acquisitions Unreportable Up To $53.1 Million Effective March 2, 2005, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

For the first time since the passage of the HSR Act in 1976, the Federal Trade Commission has published new HSR thresholds adjusted for inflation, slightly reducing the overall number of transactions that will require premerger notification filings. The new, higher thresholds will become effective on March 2, 2005. See 70 F.R. 5020 (January 31, 2005). These threshold raises match changes in the gross national product, and will be readjusted annually going forward, as required by the 2000 amendments to the Hart-Scott-Rodino Antitrust Act of 1976. As of the effective date, acquisitions will be reportable under the HSR Act only …

Implications Of The Court Of First Instance’S Microsoft Order, Sven Völcker, Cormac O'Daly

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 22 December 2004, the President of the European Court of First Instance issued an order rejecting Microsoft’s application for a suspension of the remedies imposed by the European Commission in its decision of 24 March 2004, effectively forcing Microsoft to provide interoperability information to rival server operating systems suppliers, and to offer an “unbundled” version of its Windows operating system without the Windows Media Player. The President found that, while Microsoft had established a prima facie case on the merits, it had not proved that it would suffer serious and irreparable harm from immediate implementation of the remedies ordered …

Disappearing Defendants V. Judgment Proof Injurers: Upgrading The Theory Of Tort Law Failures, Giuseppe Dari-Mattiacci, Barbara Mangan

George Mason University School of Law Working Papers Series

Do injurers’ insolvency and victims’ reluctance to sue affect accident prevention in the same way? Are these circumstances less of a problem under the negligence rule than under strict liability? We argue, contrary to the literature, that the answer is, in most cases, negative and make three main points. First, the judgment proof problem and the disappearing defendant problem are shown to have different effects on injurers’ behavior and hence yield dissimilar levels of social welfare. Second, when these two problems occur simultaneously they may have offsetting effects. Third, the negligence rule is superior to strict liability only under some …

Major Events And Policy Issues In Ec Competition Law, 2003–2004 (Part 1), John Ratliff

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

This paper is designed to offer an overview of the major events and policy issues related to Arts 81, 82 and 86 EC in the last year. The paper follows the format of previous years and is divided into three sections: — A general overview of major events (legislation and notices, European Court cases and European Commission decisions). — Anoutlineofcurrent policy issues, including legal privilege, private actions and Art.82 guidelines. — Discussion of certain areas of specific interest, notably competition and the liberal professions, energy, sport and media and certain international issues.

Antitrust And Competition Law Update: Brazil Adjusts Merger Notification Thresholds, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Ridge

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Brazilian merger notification requirements, traditionally a major hurdle for multinational mergers, have just become less burdensome. In an unexpected development last Wednesday, the Brazilian antitrust authority (“CADE”) announced a new interpretation of the Brazilian merger notification thresholds that may reduce foreign merger filings in Brazil by more than 90%. CADE reversed 10 years of precedent by declaring that, in line with the approach of many other jurisdictions worldwide, the Brazil notification threshold of 400 million Reales should henceforth be assessed in terms of Brazilian turnover rather than worldwide turnover. (ADC Telecommunications Inc. / Krone International Holding Inc., announced January 19, …

Information Exchanges Between Competitors: The Italian Competition Authority’S Recent Practice, Antonio Capobianco, Stefano Fratta

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

In 2004, two cases on exchanges of information between competitors were decided by the Italian competition authority (“AGCM” – the Autorità Garante per la Concorrenza ed il Mercato). This revived a lively debate on the conditions in which these practices should be prohibited and whether they are anticompetitive per se. Over the years, the AGCM has taken a firm stand against such practices, in some cases beyond that taken by the European Commission and the European Court. This article reviews the rules and outlines the innovative approach that the AGCM has recently adopted.

Regulation Nms: Has The Sec Exceeded Its Congressional Mandate To Facilitate A “National Market System” In Securities Trading?, Dale A. Oesterle

The Ohio State University Moritz College of Law Working Paper Series

The SEC is currently holding hearings on sweeping changes to the micro-structure of the country's securities trading markets - modifying the trade through rule, for example. Professor Oesterle argues that the SEC should not be in the business of so structuring the country's securities markets in the first place. In the piece he chronicles the SEC's expansive interpretation of its power under Congress's 1975 National Market System Amendments to the 1934 Securities and Exchange Act and questions whether Congress intended to grant the SEC such a mandate.