Law Commons^™

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice Stucke, Allen Grunes

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In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …

Crony Capitalism And Antitrust, Maurice Stucke

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In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T‑Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice’s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile?

This Essay examines the recent …

Injecting Law Student Drama Into The Classroom: Transforming An E-Discovery Class (Or Any Law School Class) With A Complex, Student-Generated Simulation, Paula Schaefer

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Gem Finch, Boone Radley, and Pickle Harris are just three of the characters who play a dramatic – and key – role in my e-discovery focused pre-trial litigation class. I did not originally invite them into the class for the drama. I was interested in their email. In 2009, I was planning a pre-trial litigation class that would include e-discovery issues. But I could not find a pre-packaged case that included ESI – the electronically stored information that is the mainstay of e-discovery practice. The case materials included in most pre-trial litigation books involved car accidents and simple contract disputes. …

Transactional Lawyers And Inadvertent Disclosure, Paula Schaefer

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The problems associated with inadvertent disclosure are often thought to be unique to litigators. The American Bar Association and most states seem to subscribe to that view. Model Rule of Professional Conduct 4.4(b) and equivalent rules in a majority of states provide that if a confidential document is inadvertently disclosed, the receiving lawyer is only obligated to notify the lawyer who made the mistake. Whether the receiving lawyer must return the document or take other steps, the Rule’s comment provides, “is a matter of law beyond the scope of these Rules.” In other words, if the disclosing lawyer wants the …

Behavioral Antitrust, Maurice Stucke, Amanda P. Reeves

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Competition policy is entering a new age. Interest in competition laws has increased world-wide, and the United States no longer holds a monopoly on antitrust policy. In the aftermath of the financial crisis, the question for competition authorities is whether and to what extent does bounded rationality, self-interest and willpower matter. This article explores how the behavioral economics literature will advance competition policy. With increasing interest in the United States and abroad in the implications of behavioral economics for competition policy, this Article first provides an overview of behavioral economics. It next discusses how the assumption of rational, self-interested profit …

The Freewheelin' Judiciary: A Bob Dylan Anthology, Alex B. Long

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This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.

Proceed At Your Peril: Crowdfunding And The Securities Act Of 1933, Joan Macleod Heminway

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A promising Web-based funding model for small business firms has emerged over the past few years. Crowdfunding (as this model has come to be known) actually includes a variety of business models, all of which use the Internet to fund business ventures by connecting promoters of businesses or projects needing funding with potential funders. Most of these funders are not professional investors; instead, they are just members of the Internet “crowd” that like the business idea of a particular entrepreneur and want to help him or her out with a nominal amount of funding — even $10.

Some (but not …

To Lynch A Child: Bullying And Gender Non-Conformity In Our Nation's Schools, Michael J. Higdon

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“Lynching is a terror that has many forms; there is the lynching of men’s spirits as well as their bodies.” -- Richard Wright

In January 2010, a 9-year old boy named Montana Lance hung himself in a bathroom at the Texas elementary school he attended. Although certainly shocking, such acts are unfortunately becoming less and less unusual. In fact, the suicide of Montana Lance is very reminiscent of what happened in April 2009 when two 11-year-old boys, one in Massachusetts and one in Georgia, likewise committed suicide just days apart. What would cause these children to end their lives? The …

Why More Antitrust Immunity For The Media Is A Bad Idea, Maurice Stucke, Allen Grunes

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With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. The Federal Trade Commission, for example, in recent hearings inquired as to whether antitrust immunity is necessary for newspapers’ collaboration and under what circumstances, if any, antitrust immunity for certain joint conduct could be justified.

Our essay explores why relaxing the federal antitrust laws for traditional media will not help consumers or the marketplace of ideas. We discuss the past problems with antitrust immunity generally and for the media industries specifically. We address the failures of the Newspaper Preservation Act, how deregulation …

Foreword: Divine Operating System?, Glenn Harlan Reynolds

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This Foreword to a Tennessee Law Review symposium on the implications of a federal constitutional convention surveys a number of proposals for reining in the growth of federal government power and spending, ranging from the creation of a new house of Congress with the sole power to repeal bills, to more mundane proposals such as a balanced budget amendment and term limits.

The Tax Man's Ethics: Four Of The Hardest Ethical Questions For An Irs Lawyer, Michelle M. Kwon

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The traditional approach to legal ethics often is characterized to mean that lawyers must zealously advocate for their clients’ objectives tempered only by the bounds of the law. In contrast to the traditional approach, the public interest approach to legal ethics extends a government lawyer’s professional ethical duties from the agency client to the public at large to further the public interest. Commentators, in advocating either the traditional approach or the public interest approach to government lawyering, disagree about whether a government lawyer owes some sort of duty to the public and if so, the nature and scope of that …

Crisis In The Mortgage Finance Market: The Nature Of The Mortgage Loan And Regulatory Reform, Thomas E. Plank

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No abstract provided.

A More Critical Use Of Fairness Opinions As A Practical Approach To The Behavioral Economics Of Mergers And Acquisitions, Joan Macleod Heminway

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This paper responds to Professor Donald C. Langevoort's essay entitled "The Behavioral Economics of Mergers and Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)). Together with Professor Langevoort's essay and another responsive work written from the standpoint of behavioral psychology – Eric Sundstrom's "Tall Steps, Slippery Slopes & Learning Curves in the Behavioral Economics of Mergers & Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)) – this paper preliminarily explores solutions to behavioral issues in the context of mergers and acquisitions.

Specifically, this paper contends that changes in the contents, construction, use, and assessment of fairness opinions may …

Responding To Welfare Privatization: New Tools For A New Age, Wendy A. Bach

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Privatization of the operation of public benefit programs in the wake of welfare reform has diminished the effectiveness of traditional approaches to advocacy. A case study from New York City of how private contractors succeeded in reducing welfare roles while imposing punitive policies on poor families offers a glimpse of possible new advocacy tools. Requiring contract-monitoring bodies that involve community members and advocates could help facilitate transparent contracting processes and reshape social welfare programs to serve clients.

An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton

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A proper understanding of the nature of the inherent powers begins with separating whether the judiciary has any constitutional power to overrule Congress from the judiciary’s power to act in the absence of congressional action, i.e. in the interstices of federal statutes and rules. Separating out these two very different types of powers helps clarify that the inherent powers of federal courts are actually both broader and shallower than have been previously thought: Congress has near plenary authority in this area, but the courts have a great deal of leeway to act when Congress has not.

An examination of the …

I Can Has Lawyer? The Conflict Between The Participatory Culture Of The Internet And The Legal Profession, Lucille Jewel

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The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show …

You're Doing It Wrong: How The Anti-Law School Scam Blogging Movement Can Shape The Legal Profession, Lucille Jewel

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One of the biggest social advancements that the Internet has given us is the capacity for an individual’s idea to reach a mass audience. Internet-based communication forms, particularly blogs, enable an idea to gain credence without the involvement of traditional mass media outlets, such as newspapers or television stations. With no “top-down” filter that controls what ideas get disseminated, the Internet can amplify voices speaking from outside the mainstream culture that perhaps would not be heard under the traditional media system. The open network structure of the Internet also allows ideas to reach broad audiences and enables individuals, operating independently, …

Sustaining Reform Efforts At The Sec: A Progress Report, Joan Macleod Heminway

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Many recent articles written by U.S. legal practitioners and law scholars in the wake of the financial crisis address regulatory reforms included in or omitted from the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and related agency initiatives. In contrast, this article focuses on institutional reforms - specifically those instituted at the U.S. Securities and Exchange Commission (SEC) since President Barack Obama took office in January 2009.

In an article published in the Villanova Law Review last year, I assessed the early reform efforts at the SEC in the Obama era from the vantage point of change …

Deep Irony - The Law Of The Gift, Iris Goodwin

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No abstract provided.

Harming Business Clients With Zealous Advocacy: Rethinking The Attorney Advisor's Touchstone, Paula Schaefer

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Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and …

Economists On Deregulation Of The American Legal Profession: Praise And Critique, Benjamin H. Barton

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Both law professors and economists are discussing deregulation of the American legal profession, often without consulting each other. This symposium essay reviews the book length deregulation argument entitled First Thing We Do, Let’s Deregulate All the Lawyers. The essay argues that Let’s Deregulate is a tremendous addition to the literature: it disregards laws various professional shibboleths and offers a crisp and persuasive argument that the current barriers to entry are very, very costly to law students, clients, and society at large. Let’s Deregulate estimates the 2004 lawyers’ earning premium at $64 billion. The estimation is high, but well supported. Even …

The Last Male Bastion: In Search Of A Trojan Horse, Joan Macleod Heminway

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Numerous legal scholars and commentators have written about the paucity of women in the boardroom at influence-wielding U.S. public companies. Fewer have written about the scarcity of female Chief Executive Officers, and fewer yet have written about the relatively low numbers of female executive officers, at U.S. public companies.

This brief essay (an edited version of my remarks offered at the University of Dayton School of Law’s symposium on "Perspectives on Gender and Business Ethics: Women in Corporate Governance") does not endeavor to add to the collective understanding of observed gender disparities in boardrooms and the C-suite — the senior …

Rethinking The Giant Mess That Is Employment Discrimination Law, Alex B. Long

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No abstract provided.

Whither Secular Bear: The Russian Orthodox Church’S Strengthening Influence On Russia's Domestic And Foreign Policy, Robert C. Blitt

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As 2012 presidential elections in Russia draw near, evidence points to a collapse in that country’s constitutional obligation of secularism and state-church separation. Although early signs of this phenomenon can be traced back to the Yeltsin era, the Putin and Medvedev presidencies have dealt a fatal blow to secular state policy manifested both at home and abroad, as well as to Russia’s constitutional human rights principles including nondiscrimination and equality of religious beliefs.

The first part of this article argues that leadership changes in the Russian government and the Russian Orthodox Church (ROC) have triggered an unprecedented deepening of state-ROC …

A Tribute To Bob Lloyd, Douglas A. Blaze

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No abstract provided.

Teaching Contract Drafting Using Real Contracts, Brian Krumm, Sharon Pocock, Shelley Dunck

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No abstract provided.

The Bramble Bush Of Forking Paths: Digital Narrative, Procedural Rhetoric, And The Law, Lucille Jewel

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This Article explores ways to harness the persuasive and narrative power of computer games for practical legal purposes. The mental experiences we have when we play computer games relate to what attorneys do every day. Playing computer games and practicing law both require engagement with interactive plots where the outcomes depend on a series of choices in a complex system.

The analogues between computer games and the practice of law are one reason that lawyers should take a deeper look at this emerging narrative theory. The other reason has to do with the fact that millions of people play computer …

Reconsidering Competition, Maurice Stucke

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In light of the financial crisis and the empirical findings from behavioral economics, policymakers should reconsider the fundamental question: What is competition? Only in understanding competition can one understand what competition can or cannot achieve under certain circumstances.

This Article reexamines one premise of competition, namely the extent to which firms, consumers, and the government are rational and act with perfect willpower. In varying this assumption, the Article maps four scenarios of competition.

Competition authorities should revisit their conception of competition, including the underlying assumptions, to better understand the competitive dynamics in different industries. In engaging in this review, competition …

Innovative Transactional Pedagogies, Joan Macleod Heminway

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Our law schools are embracing in a more powerful way innovative transactional pedagogies that address not only theory, policy, and doctrine, but also legal skills. This transcribed panel discussion explores three of these pedagogies – teaching corporate finance as advanced contract drafting, teaching numeracy, and teaching substance and skill in contract drafting through the use of in-office meetings and analytical memos – and describes how they are being implemented in law teaching. The panel was part of the “Transactional Education: What’s Next?” conference hosted by the Emory University School of Law’s Center for Transactional Law and Practice on June 4-5, …

Employment Retaliation And The Accident Of Text, Alex B. Long

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This Article explores the current and future landscape of employment retaliation law following the Supreme Court’s decisions in Thompson v. North American Stainless, LP and Kasten v. Saint-Gobain Performance Plastics Corp. As the law currently exists, statutory retaliation plaintiffs win or lose largely due to the accident of statutory text rather than the fact that the law is operating as Congress envisioned or as part of a coherent scheme of regulation. In short, the federal approach to workplace retaliation is inefficient, unnecessarily complex, and in need of major reform. Contrary to popular thinking, the article concludes that the text of …