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Full-Text Articles in Law

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp Dec 2010

Leegin, The Rule Of Reason, And Vertical Agreement, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision overturned the longstanding rule of per se illegality for resale price maintenance and applied a rule of reason. One might think that the question whether a vertical “agreement” exists between a manufacturer and a dealer should not be affected by the mode of analysis to be applied after an agreement is found. First one asks whether an agreement exists, and determines whether the per se rule or rule of reason applies only after receiving an affirmative answer. Nevertheless, ever since Colgate the Supreme Court has generally taken a more restrictive approach on the agreement ...


Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek ...


Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank Jan 2010

Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank

Faculty Scholarship at Penn Law

No abstract provided.


The Distortionary Effect Of Evidence On Primary Behavior, Gideon Parchomovsky, Alex Stein Jan 2010

The Distortionary Effect Of Evidence On Primary Behavior, Gideon Parchomovsky, Alex Stein

Faculty Scholarship at Penn Law

In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their likelihood of prevailing in court. Because adjudicators must base decisions on observable and verifiable information—or, in short, evidence—rational actors will always strive to generate evidence that can later be presented in court and increase their ...


When The Government Is The Controlling Shareholder: Implications For Delaware, Marcel Kahan, Edward B. Rock Jan 2010

When The Government Is The Controlling Shareholder: Implications For Delaware, Marcel Kahan, Edward B. Rock

Faculty Scholarship at Penn Law

No abstract provided.


The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp Jan 2010

The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In its Twombly decision the Supreme Court held that an antitrust complaint failed because its allegations did not include enough “factual matter” to justify proceeding to discovery. Two years later the Court extended this new pleading standard to federal complaints generally. Twombly’s broad language has led to a broad rewriting of federal pleading doctrine.

Naked market division conspiracies such as the one pled in Twombly must be kept secret because antitrust enforcers will prosecute them when they are detected. This inherent secrecy, which the Supreme Court did not discuss, has dire consequences for pleading if too much factual specificity ...


Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve Jan 2010

Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Foreword: Procedure As Palimpsest, Catherine T. Struve Jan 2010

Foreword: Procedure As Palimpsest, Catherine T. Struve

Faculty Scholarship at Penn Law

No abstract provided.


Redeeming The Missed Opportunities Of Shady Grove, Stephen B. Burbank, Tobias Barrington Wolff Jan 2010

Redeeming The Missed Opportunities Of Shady Grove, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

Shady Grove Orthopedic Associates v. Allstate Insurance Co., a closely watched case decided in the 2009–10 Term, presented the Court with an opportunity to speak to two related problems under the Rules Enabling Act that have languished for decades without proper resolution. The first involves a broad interpretive question: How can the limitations on rulemaking authority contained in the Act be applied in a manner that reflects the separation-of-powers concerns that animated them while also exhibiting respect for the state regulatory arrangements that govern much of our economic and social activity? The second problem involves the intersection of the ...