Law Commons^™

Throwing Out The Baby With The Bathwater: A Reply To Professor Twerski, Richard W. Wright

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No abstract provided.

Free Exercise In The Free State: Maryland's Role In Religious Liberty And The First Amendment, Kenneth Lasson

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Maryland arguably holds the distinction of being the state whose early history most directly ensured, and whose citizenry was most directly affected by, the First Amendment's protection of religious freedom. Because of its relatively diverse religious population, Maryland stood out as both a champion of tolerance and a hotbed of discrimination for most of its colonial experience. Similarities have been pointed out between the first provincial government in St. Mary's, Maryland, and the American plan under the Constitution, particularly with respect to religious liberty.

This article offers a brief overview of the religious history of Maryland, focuses on important state …

An Economic Approach To The Determination Of Injury Under United States Antidumping And Countervailing Duty Law, Michael S. Knoll

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No abstract provided.

Price Effects Of Horizontal Mergers, Alan A. Fisher Ph.D., Frederick I. Johnson Ph.D., Robert H. Lande

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When should the government challenge a merger that might increase market power but also generate efficiency gains? The dominant belief has been that the government and courts should evaluate these mergers solely in terms of economic efficiency. Congress, however, wanted the courts to stop any merger significantly likely to raise prices. Substantially likely efficiency gains should therefore affect the legality of mergers to the extent that they are likely to prevent price increases. This standard is more strict than the economic efficiency criterion, because the latter would permit mergers substantially likely to lead to higher prices, if sufficient efficiency gains …

The New Economic Theory Of The Firm: Critical Perspectives From History, William W. Bratton

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No abstract provided.

Of Dreams And Cathedrals: A Tribute To Lewis Collens, Richard Conviser

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No abstract provided.

Aspects Of Labor Law Affecting Labor-Management Cooperation In The Railroad And Airline Industries, Henry H. Perritt Jr.

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No abstract provided.

Electronic Acquisition And Release Of Federal Agency Information: Analysis Of Recommendations Adopted By The Administrative Conference Of The United States, Henry H. Perritt Jr.

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No abstract provided.

The Future Of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, Henry H. Perritt Jr.

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No abstract provided.

A New Litany Of Personal Jurisdiction, Margaret G. Stewart

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No abstract provided.

New Challenges To State Water Allocation Sovereignty (With C. Dumars), A. Dan Tarlock

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No abstract provided.

Remedying The Irremediable: The Lessons Of Gautreaux, A. Dan Tarlock

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No abstract provided.

The Illusion Of Finality In General Water Rights Adjudications, A. Dan Tarlock

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No abstract provided.

Executive Control Over Criminal Law Enforcement: Some Lessons From History, Harold J. Krent

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No abstract provided.

The Evolving Law Of Agency Shop In The Public Sector, Martin H. Malin

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No abstract provided.

Government Liability Under Section 1983: The Present Is Prologue, Sheldon Nahmod

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No abstract provided.

Section 1983 Discourse: The Move From Constitution To Tort, Sheldon Nahmod

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No abstract provided.

Chicago's False Foundation: Wealth Transfers (Not Just Efficiency) Should Guide Antitrust, Robert H. Lande

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My role today will be comparable to the small child's in the classic story of the Emperor's new clothes; I too have a simple truth to tell. The sole goal of antitrust is not to enhance economic efficiency. Increased economic efficiency is not even the primary goal of the antitrust laws. The main purpose of the antitrust laws is to prevent firms from acquiring and using market power to force consumers to pay more for their goods and services. Congress was primarily concerned that corporations would use market power "unfairly" to extract wealth from consumers. These wealth transfers were of …

Ratification And Undisclosed Principals, Arnold Rochvarg

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No abstract provided.

When Should States Challenge Mergers: A Proposed Federal/State Balance, Robert H. Lande

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This article critically analyzes the current system of United States merger enforcement, under which both federal and State antitrust enforcers scrutinizes and potentially can challenge any merger that affects interstate commerce. This article develops and proposes an alternative, a voluntary division of responsibility patterned after the European Union's approach. Under this alternative federal enforcers normally would defer to State enforcers for certain specified mergers, and State enforcers normally would defer to federal enforcers for other specified mergers.

Health Care Allocation For The Elderly: Age Discrimination By Another Name?, Howard C. Eglit

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No abstract provided.

International Competitive Harm And Domestic Antitrust Laws: Forms Of Analysis, David J. Gerber

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No abstract provided.

Note: Insuring Rule 11 Sanctions, Cary Coglianese

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No abstract provided.

Quality Of Care And Market Failure Defenses In Antitrust Health Care Litigation, Thomas L. Greaney

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This article considers quality-based justifications for antitrust challenges to collaboration among health care professionals. It first examines doctrinal developments resisting such justifications and, with a skeptical eye, analyzes attempts to interject quality of care and worthy motive defenses into antitrust appraisals of horizontal restraints of trade. Next the article assesses the economic basis and the risks and benefits of a market failure defense that would allow some quality-enhancing restraints of trade to escape antitrust challenge. Its principle recommendation is that courts recognize a narrow, market failure defense subject to several limiting principles to cabin its reach. The article concludes by …

Non-Profit Housing Organizations, Peter W. Salsich

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This article emphasizes that any solution to the phenomenon of homelessness must include a substantial component of permanent affordable housing and argues that nonprofit organizations can play a crucial role in resolving this housing crisis. The article surveys the variety of forms that community based housing has taken to provide housing for the most neglected groups. Typical problems nonprofit housing organizations have faced in obtaining and maintaining tax-exempt status are discussed. The tax treatment of nonprofit organizations is a significant factor in such organizations’ overall ability to maintain housing units at affordable prices. Also, reviewed is the landlord-tenant relationship when …

Quality-Control Regulation Of Home Health Care, Sandra H. Johnson

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This article examines the comparability of nursing homes and home health care with respect to the quality-control effects of private litigation and state licensure. It explains that the false assumption of broad comparability between nursing homes and home health care could hamper effective regulation of quality in the delivery of home health care.

This article has two main sections, the first of which compares nursing homes and home health care in the context of private litigation. Points of comparison in the litigation context include the barriers to private litigation in long-term care, issues in institutional liability, applicable standards of care, …

From Medicalization To Legalization To Politicization: Cruzan, O'Connor And Refusal Of Treatment In The 1990s, Sandra H. Johnson

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End-of-life decisionmaking is very often accompanied by high stakes and human drama, as evinced in the 1988 decisions of In re Westchester County Medical Center (O’Connor) and Cruzan v. Harmon. This article analyzes these two legal battles both for their place in the jurisprudence of medical treatment decisionmaking of the 1980s and foreshadowing of 1990s conflicts.

The article begins with a discussion of the O’Connor and Cruzan decisions. In O’Connor, the New York Court of Appeals ordered treatment of a significantly brain damaged patient over and above the wishes of the family, requiring “clear and convincing evidence” of the patient’s …

Risk-Utility Analysis And The Learned Hand Formula: A Hand That Helps Or A Hand That Hides?, Barbara Ann White

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Judicial inconsistencies in balancing costs against benefits in legal determinations, sometimes referred to as the Learned Hand Formula, indicate that the implications are not fully understood. The incorporation of more formal economic cost-benefit analysis by some courts has only served to increase the confusion and wariness about fostering such guidelines for social behavior.

This article's purpose is threefold. One is to demonstrate how the use of cost-benefit analysis necessarily imparts the moral and/or political values of the user into his or her decisions. While the cost-benefit technique is itself value-neutral, its application, as will be shown, requires that some moral …

The Antitrust Movement And The Rise Of Industrial Organization, Herbert J. Hovenkamp

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The modern science of industrial organization grew out of a debate among lawyers and economists in the waning years of the nineteenth century. For Americans, the emergent business "trust" provoked a dialogue about how the law should respond. Many of the formal theories of industrial organization, such as the ruinous competition doctrine, the potential competition doctrine, and the post-classical concern about vertical integration, were actually borrowed from the law.

Anglo-American and European economists disputed the proper domain of theory and description in economic analysis. The British approach was exemplified Alfred and Mary Paley Marshall's Economics of Industry, published in …

Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman

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No abstract provided.