Law Commons^™

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

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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 …

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 …

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 …

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

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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

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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 …

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 …

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 …

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 …

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 …