Law Commons^™

Is Competition Always Good?, Maurice Stucke

Scholarly Works

Competition is the backbone of U.S. economic policy. The U.S. Supreme Court observed, “The heart of our national economic policy long has been faith in the value of competition.” Competition advocacy is also thriving internationally. Promoting competition is broadly accepted as the best available tool for promoting consumer well-being. Competition officials, who regularly try to protect the public from anticompetitive special interest legislation, are justifiably jaded about complaints of excess competition. Although the economic crisis has prompted some policymakers to reconsider basic assumptions, the virtues of competition are not among them.

Nonetheless to effectively advocate competition, officials must understand when …

Is Intent Relevant?, Maurice Stucke

Scholarly Works

The role of intent in federal antitrust cases has been characterized as “unsettled” and “controversial.” Many lower courts, scholars, and practitioners recognize that intent evidence is relevant in antitrust cases. But jurists and scholars oriented by neoclassical economic theory disagree.

Using the developments in the behavioral economics literature, this Article reexamines the relevancy of intent evidence in civil antitrust cases. The analysis is organized around two issues: First is intent legally relevant in civil antitrust cases? Second if intent evidence is relevant, for what purpose?

Intent evidence, this Article concludes, is relevant. The behavioral economics experiments confirm what many have …

Beyond Ruggie’S Guiding Principles On Business And Human Rights: Charting An Embracive Approach To Corporate Human Rights Compliance, Robert C. Blitt

Scholarly Works

To what extent should or must a corporation contemplate international human rights law? Following a brief discussion of the increasing influence of transnational corporations and global business transactions, as well as the growth of the international human rights system, this Article uses the 2011 United Nations’ Guiding Principles on the effective prevention of, and remedy for, business-related human rights harm as a jumping-off point for addressing the most recent developments related to identifying and regulating business-related human rights practices. After identifying an emerging divide between endorsement and criticism of the Guiding Principles, the Article concludes with a forward-looking view, arguing …

Tunisia: Springtime For Defamation Of Religion, Robert C. Blitt

Scholarly Works

No abstract provided.

Fortify Yourself, George Kuney

Scholarly Works

No abstract provided.

Foreword, Joan Macleod Heminway

Scholarly Works

No abstract provided.

Behavioral Antitrust And Monopolization, Maurice Stucke

Scholarly Works

One hot topic is whether Google has violated the antitrust laws. Another important topic is how behavioral economics can enrich antitrust policy. This Essay examines two implications of behavioral economics on antitrust monopolization law. The Essay first discusses trial-and-error learning as an entry barrier. This is timely given the current debate over the entry barriers of the search engine market.

The Essay next discusses behavioral exploitation to maintain a monopoly. The behavioral economics literature can help explain the European Commission’s tying claims against Microsoft, why the Commission’s original remedy failed, and the benefits and risks of the Commission’s remedy involving …

The Implications Of Behavioral Antitrust, Maurice Stucke

Scholarly Works

Behavioral economics is now mainstream. It is also timely. The financial crisis raised important issues of market failure, weak regulation, moral hazard, and our lack of understanding about how many markets actually operate.

As behavioral economics (with its more realistic assumptions of human behavior) goes mainstream in academia and the business world, one expects lawyers and economists to bring the current economic thinking to the competition agencies. How should the competition agencies respond?

This paper examines how competition authorities can consider the implications of behavioral economics on four levels: first as a gap filler, i.e., to help explain “real world” …

Teaching With Pacer: Improving Understanding By Harnessing Transparency, George Kuney

Scholarly Works

The article discusses teaching law school courses with the Public Access to Court Electronic Records (PACER) system and both student and instructor e-writing projects relating to that system.

The case method of instruction in its classic form does not capture the context and intricacies of bankruptcy practice, especially in United States Chapter 11 cases. What is often missing is the rich compilation of detail found in the mountain of filings that is a Chapter 11 case, whether large or small. These details often evidence the shifting loyalties, relationships, interests, and emotions of the participants. These dynamics are largely lost in …

Just Do It! Specific Rulemaking On Materiality Guidance In Insider Trading, Joan Macleod Heminway

Scholarly Works

Insider trading has been in the news on a relatively constant basis in the new millennium. Raj Rajaratnam and associates, Mark Cuban, and Martha Stewart have been among the many subjects of legal actions involving insider trading since the Enron debacle in 2002. Some of these cases have been garden-variety insider trading cases; others have exposed confusing and evolving elements of U.S. insider trading doctrine. Most recently, the STOCK Act — a law providing for an express congressional prohibition on insider trading — has made headlines. Public reporting in connection with both recent legal actions and the introduction and passage …

A Portrait Of The Insider Trader As A Woman, Joan Macleod Heminway

Scholarly Works

This revised draft book chapter describes the interrelationship between gender and U.S insider trading law and explores (anecdotally and through extensions of existing gender studies outside the insider trading realm) the potential roles and significance of gender in that context. Although women have become more visible as participants in the securities markets and as alleged and actual transgressors of insider trading rules, the role of women in insider trading is still ill understood, except anecdotally. In sum, the portrait of the insider trader as a woman is a work in process.

The Extraterritorial Application Of U.S. Securities Fraud Prohibitions In An Increasingly Global Transactional World, Joan Macleod Heminway

Scholarly Works

This draft working paper, prepared for a French academic forum entitled “American Law Today: Identity, Mutations, and Debate,” is a brief essay on the current and potential future extraterritorial reach of Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 adopted by the U.S. Securities and Exchange Commission under Section 10(b). The essay does three principal things. First, it summarizes the key antifraud rules in context. Next, it describes (in brief) the history and current state of the academic and political debate on the extraterritoriality of Section 10(b) and Rule 10b-5 (including commentary on the …

Redefining Summary Judgment By Statute: Has The General Assembly Overruled The Tennessee Supreme Court’S Decision In Hannan?, Matthew Lyon, Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

The Sec’S New Line-Item Disclosure Rules For Asset-Backed Securities: Mots Or Tmi?, Joan Macleod Heminway

Scholarly Works

Despite the lack of a dominant explanation for the level of risk assumed by investors in asset-backed securities in the period preceding the financial crisis, the U.S. Congress proposed and passed new disclosure prescriptions addressing various aspects of the secondary mortgage market as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This essay asks whether certain disclosure provisions embraced in Dodd-Frank and the related regulations of the U.S. Securities and Exchange Commission are merely new and necessary components of a disclosure infrastructure that the SEC has been building for years for the protection of investors and markets …

Modern Chinese Real Estate Law: Property Development In An Evolving Legal System (Chapter 1), Gregory M. Stein

Scholarly Works

This book offers a detailed account of how the Chinese real estate market actually operates in practice, from both legal and business perspectives. My goals are twofold. First, I seek to establish and describe how the Chinese real estate market, with so few written laws, actually functions. How do real estate professionals operate on such a large scale when they are not sure what the applicable law is or how it will be applied? Second, I aim to address the broader question of how a huge nation can achieve such dramatic levels of economic development so rapidly while its legal …

Foreward: The Rise Of Behavioral Law And Economics, Maurice Stucke

Scholarly Works

No abstract provided.

Low Expectations: How Changing Expectations Of Privacy Can Erode Fourth Amendment Protection And A Proposed Solution, Teri Dobbins Baxter

Scholarly Works

Technology has changed the lives of every American, but it has revolutionized the way that young people socialize and become socialized. The increasing use of technology to interact with their peers and shape their identities has led to a change in the way personal information is shared and the privacy expectations that are held with respect to that information. Various studies have found that, in general, younger generations have lower privacy expectations than their older counterparts. This Article considers how these changing attitudes towards privacy among youth have the potential to erode Fourth Amendment protection for everyone. The Article then …

The Modest Impact Of Palazzolo V. Rhode Island, Gregory M. Stein

Scholarly Works

Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.

This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law …

Mobilization And Poverty Law: Searching For Participatory Democracy Amongst The Ashes Of The War On Poverty, Wendy A. Bach

Scholarly Works

In 1964, at the height of the Civil Rights Movement, the federal government launched Community Action, a program that was to be designed and implemented with the maximum feasible participation of the poor. Today in governance theory, we are told once again that participation by affected communities in the mechanisms of governance have the ability to deepen democracy – to yield better policy and to engage new voices in the mechanisms of democracy. Mobilization and Poverty Law: Searching for Participatory Democracy Amongst the Ashes of The War on Poverty turns to history to explore a question central to both governance …

Reconsidering Antitrust's Goals, Maurice Stucke

Scholarly Works

Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?

Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned …

An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Benjamin H. Barton

Scholarly Works

This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious.

The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The …

Article 9 Of The Ucc: Reconciling Fundamental Property Principles And Plain Language, Thomas E. Plank

Scholarly Works

Article 9 of the Uniform Commercial Code, which governs (i) the grant of a security interest in personal property to secure payment or performance of an obligation — a “true security interest” — and (ii) the sale of receivables, incorporates the primary property law principle of nemo dat quod non habet — one cannot transfer an interest in property that one does not have — and its corollary — a transferee can receive what the transferor has and no more. For good policy reasons, however, Article 9 also enacts the innovative exception to nemo dat, the Filing Priority Principle codified …

Lawyers Intentionally Inflicting Emotional Distress, Alex B. Long

Scholarly Works

This article examines the tort of intentional infliction of emotional distress (IIED) as applied to lawyers engaged in the practice of law. IIED claims against lawyers have arisen in a variety of contexts, ranging from a lawyer’s act of disclosing client confidences to a prosecutor to demanding sex from a client in exchange for legal services. Courts have always had difficulty defining the concept of “extreme and outrageous conduct” for purposes of an IIED claim, but IIED claims against lawyers pose even greater definitional problems for courts. In an effort to provide greater clarity, the article advocates that courts should …

Mesa Airlines, Brittany Brent, Lindy Harris

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Solyndra, Brandon Brewer, Matthew Kinsey, Anthony Mendenhall

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Reader's Digest, Walter Machnicki

Chapter 11 Bankruptcy Case Studies

No abstract provided.

In Re Jazz Photo Corp., Archie Carden, Cory Swainston

Chapter 11 Bankruptcy Case Studies

No abstract provided.

In Re Adelphia Communications Corp., Hilari Sheffield, Adam Smith

Chapter 11 Bankruptcy Case Studies

No abstract provided.

New Era Bankruptcy, Holly N. Mancl

Chapter 11 Bankruptcy Case Studies

No abstract provided.

William Edwin Lindsey, Lida Griest, Chris Inklebarger, Sydney Koch

Chapter 11 Bankruptcy Case Studies

No abstract provided.