Law Commons^™

Albrecht After Arco: Maximum Resale Price Fixing Moves Toward The Rule Of Reason, Roger D. Blair, Gordon L. Lang

Vanderbilt Law Review

For some time, both economic and legal commentators have recognized the economic irrationality of the Supreme Court's ruling in Albrecht v. Herald Co. which prohibited the imposition of maximum resale prices by a supplier on its resellers. Ordinarily, unwise decisions receive critical reviews and eventually lose their force as they are over-ruled explicitly or by implication in subsequent decisions. In order for this evolution to occur, however, the Court must be presented with an opportunity to alter its earlier rulings. Recently, the Supreme Court had just such an opportunity to revisit the Albrecht rule in Atlantic Richfield Co. v. USA …

Retracing The Antitrust Roots Of Section 1972 Of The Bank Holding Company Act, Daniel Aronowitz

Vanderbilt Law Review

In 1956 Congress enacted the Bank Holding Company Act' (BHCA) to provide safeguards against undue concentration in the control of banking activities. Congress intended the regulations to protect the economy from anticompetitive combinations of banking and non- banking enterprises held under singular control. Still concerned with the faded "line" between banking and commerce, in 1970 Congress in- creased the scope' of the BHCA with a series of amendments, including an anti-tying provision.

Specifically, 12 U.S.C. section 1972 prohibits anticompetitive practices that "require bank customers to accept or provide some other service or product or refrain from dealing with other parties" …

Bringing Meaning To Interest Balancing In Transnational Litigation, Spencer W. Waller

Vanderbilt Journal of Transnational Law

This Article contends that the current state of the debate over the balancing of interests in the extraterritorial application of United States law is outmoded and in need of serious reexamination. Most commentators and scholars continue to focus on the area of jurisdiction to prescribe, the acceptability of the effects test, and the development of lists of United States and foreign interests to be balanced by a United States court before exercising jurisdiction.

Professor Waller contends that this debate is no longer productive. Extraterritoriality, with some limitations for the interests of other states, is an accepted feature of United States …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MEDICAL MALPRACTICE ABROAD BY UNITED STATES PHYSICIAN IN CONNECTION WITH DEPARTMENT OF STATE REGULATIONS GOVERNING TORT CLAIMS PROVIDED FOR AN INVESTIGATIVE PROCEDURE FOLLOWED BY AGENCY DECISION--AGENCY FOR INTERNATIONAL DEVELOPMENT HOLDS NO CONSTITUTIONAL OBLIGATIONS TO EVALUATE MEDICAL MALPRACTICE CLAIM ON THE MERITS AND IN ACCORD WITH MINIMAL DUE PROCESS. Tarpeh-Doe v. United States, 904 F.2d719 (D.C. Cir. 1990).

THE FOREIGN CORRUPT PRACTICES ACT DOES NOT CREATE AN IMPLIED PRIVATE RIGHT OF ACTION THAT KENTUCKY TOBACCO GROWERS COULD USE TO RECOVER DAMAGES FROM COMPANIES THAT ALLEGEDLY ENGAGED IN CORRUPT PRACTICES TO THE DETRIMENT OF GROWERS. THE ACT OF STATE DOCTRINE, HOWEVER, DOES …

Franchising And The Collective Rights Of Franchisees, Robert W. Emerson

Vanderbilt Law Review

Assume that you are the franchisee of a nationwide restaurant chain. Your franchisor has acted contrary to what you believe to be in your best interest. For the franchisor, bigger is better: more outlets and discount programs mean higher sales volume and consequently additional franchise fees and royalties, with royalties typically being based on gross sales-not franchisee net profits. You are concerned that the franchisor is oriented more toward expansion than the well-being of existing franchisees. Franchisor assistance is less than you expected, but royalties and other charges seem steep.Facing a strong franchisor that appears not to worry about an …

Rethinking Antitrust Injury, Roger D. Blair, Jeffrey L. Harrison

Vanderbilt Law Review

Substantive changes in antitrust law since 1977 have had a dramatic impact on the vitality of antitrust enforcement.' Recent "procedural" changes now seem likely to have as great an influence. In the procedural area, the emphasis has been on antitrust standing and anti-trust injury. As a result of recent judicial interpretations of these requirements, antitrust plaintiffs face increasingly formidable hurdles. As courts focus on questions of standing and injury, important discussions about whether a practice should be held to a per se or rule of reason standards frequently are immaterial. If there is no qualified plaintiff,the substantive issue need never …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent current aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped in topical categories, and references are given for further research:

Constitutionality of the Immigration Marriage Fraud Amendments Upheld over Challenge by Deportable Alien and United States Spouse

Anetekhai v. Immigration and Naturalization Service

876 F.2d 1218 (5th Cir. 1989)

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Standing Granted to Challenge Hostile Takeover between Foreign Firms under United States Antitrust and Securities Laws

Consolidated Gold Fields PLC v. Minorco, …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Agency for International Development's Adoption of Policy Placing Abortion-Related Restrictions on Grants to Nongovernmental Organizations Upheld DKT Memorial Fund Ltd. v. Agency for International Development 887 F.2d 275 (D.C. Cir.1989)

Federal Long-Arm Statute Authorizes Assertion of Personal Jurisdiction over Foreign Holder of United States Patent in Patent Ownership Suit National Patent Development Corporation v. T.J. Smith & Nephew Ltd. 877 F.2d 1003 (D.C. Cir.1989) (en banc)

Venue over Alien Defendants in Antitrust Suit Proper in any United States Federal District Court under Alien Venue AcT-Go-Video, Inc. v. Akai Electric Co., Ltd. 885 F.2d 1406(9th Cir. 1989)

INS Oral Notice to …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Picketing Outside Foreign Embassies is Protected Speech Under the First Amendment and Restrictions on this Speech Must Serve a Compelling Government Interest and be Narrowly Tailored to the Specific Situation--Boos v. Barry, 108S.Ct. 1157 (1988).

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Notions of Comity and the Act of State Doctrine Preclude U.S. Federal Courts from Exercising Jurisdiction over the Actions of Foreign Corporations when Those Actions Constitute a Violation of U.S. Antitrust Laws but are Protected by Legislation in a Foreign Country--O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d Cir.1987).

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Case Digest

Materiality Standard for Concealment or Misrepresentation under Immigration and Nationality Act § 1451(a) is Sufficient to Influence an Immigration and Naturalization Service Decision; The Test of Good Moral Character under § 1101(f)(6) Does Not Require a Finding of Materiality for any False Testimony --Kungys v. United States, 108 S. Ct. 1537 (1988)

The Broad Subpoena Power of the Immigration and Naturalization Service does not Authorize Issuance of a Blanket John Doe Subpoena to Gather Information Regarding Unidentified Aliens--Peters v. United States, 853 F.2d 692 (9th Cir.1988)

Routine Strip Searches of Detained Juvenile Aliens Violate Juveniles' Fourth Amendment Rights--Flores …

The Antitrust State-Action Doctrine After Fisher V. Berkeley, Daniel J. Gifford

Vanderbilt Law Review

In February 1986 the United States Supreme Court in Fisher v. Berkeley' upheld the validity of a municipal rent control ordinance against a contention that the Sherman Act preempted the ordinance. In an eight-to-one decision, the Court effectively gave the coup de grace to its earlier attempt to apply the federal antitrust laws to municipalities and political subdivisions. It also may have finally ended the remarkable series of disingenuous state-action decisions that had become an almost regular part of the Court's calendar since Goldfarb v. Virginia State Bar' in 1975.Fisher holds a promise of restoring to the state-action exemption a …

The Exuberant Pathway To Quixotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

By holding that antitrust claims are arbitrable, the United States Supreme Court may have wanted to minimize, if not eliminate, the possibility that dilatory practices could thwart the international arbitral process. Faced with a potentially ruinous contractual relationship and the prospect of arbitration, a disgruntled party (like Soler) might find that it has no other remedy than postponing the day of reckoning. Raising the possibility that the entire transaction is illicit because of antitrust violations at least generates delay and might undermine the arbitration, staving off the possibility of resolution.

Antitrust Comes Full Circle: The Return To The Cartelization Standard, Nolan E. Clark

Vanderbilt Law Review

Antitrust law has been with us since 1890, the year that Congress passed the Sherman Antitrust Act. In the course of this ex-tended period, antitrust law has achieved an exalted status in the pantheon of American jurisprudence.' Nevertheless, for decades,Sherman Act doctrines have been murky and confused. This confusion was not, however, historically inevitable. When enacted, the Sherman Act had a clear focus. Fortunately, as the Sherman Act approaches its centennial, the Supreme Court has given encouraging signs that it is once again returning to the original focus of the statute.

As originally conceived, the Sherman Act prohibited two related …

Rule 10b-5-Application Of The In Pari Delicto Defense In Suits Brought Against Securities Brokers By Customers Who Have Traded On Inside Information, Mark G. Strauch

Vanderbilt Law Review

This Note advocates that courts should permit tipper defendants to assert the in pari delicto defense in private 10b-5 cases against tippee plaintiffs unless one of the first three exceptions to the analytical framework applies. Part II of this Note discusses the purpose and application of the in pari delicto defense and the four situations in which courts have rejected it. Part II also illustrate show courts analyze the in pari delicto defense in contract, anti-trust, and non-10b-5 securities cases. Part III provides a general background on the purpose of the Securities and Exchange Act of 1934 and rule 10b-5, …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration--Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Comment

The instant decision marks the first time a court has considered whether to apply the United States domestic policy of preserving antitrust issues for judicial determination to an international contract containing a mandatory arbitration clause. The First Circuit's decision to apply domestic policy undermines the preeminent goal of the Convention, which is to encourage arbitration …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Preliminary Injunction to Prevent a Party from Taking Action in a Foreign Jurisdiction that would Destroy United States Jurisdiction does not Violate Principles of Prescriptive Jurisdiction or International Comity--Laker Airways,Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir.1984).

International Carriers are Subject to the Private Laws of a Foreign State when Carriers are Party to Trade Agreements with that Foreign State and are Doing Business within its Territorial Jurisdiction--British Airways Boardv. Laker Airways, Ltd., [1984] 3 W.L.R. 413; 23 I.L.M. 727.

Court of International Trade has Jurisdiction over Claims Challenging Regulations Governing the Importation of Goods Bearing …

Recent Decisions, Lucy C. Gratz, Laurel C. Williams

Vanderbilt Journal of Transnational Law

Arbitration Transnational Antitrust Claims are Nonarbitrable under the Federal Arbitration Act and Article II (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards--Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 723 F.2d 155 (1st Cir.1983), cert. granted, 105 S. Ct. 291 (1984).

Lucy C. Gratz

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International Banking--The International Banking Act of 1978 Limits the States' Ability to Regulate Foreign Bank Entry, "Conference of State Bank Supervisors v. Conover," 715 F.2d 604 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1708 (1984).

Laurel Comstock Williams

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

THE UNITED STATES MAY EXERCISE JURISDICTION OVER PERSONSON A "STATELESS" VESSEL WITHOUT SHOWING A NEXUS BETWEEN THE VESSEL AND THE UNITED STATES--United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983).

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ALIEN RETAINS RIGHT TO DEPORTATION PROCEEDING AFTER RETURNING FROM AUTHORIZED DEPARTURE NOTWITHSTANDING THAT IMMIGRATION AND NATURALIZATION SERVICE PERMISSION TO DEPART WAS STYLED AS AN "ADVANCE PAROLE"--Joshi v. District Director, Immigration and Naturalization Serv., 720 F.2d 799 (1983).

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NO VIOLATION OF INTERNATIONAL LAW WHEN EQUIPMENT LOCATED IN UNITED STATES RECORDS TRANSNATIONAL TELECOMMUNICATIONS--United States v. Romano, 706 F.2d 370 (2d Cir. 1983).

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UNITED STATES MANUFACTURERS HAVE A CAUSE …

Blanket Licensing Of Music Performing Rights: Possible Solutions To The Copyright-Antitrust Conflict, Mary K. Kennedy

Vanderbilt Law Review

This Recent Development compares Buffalo Broadcasting with other blanket licensing decisions and predicts the reversal of Buffalo Broadcasting on appeal. Part II of this Recent Development discusses the organization and operation of the performing rights societies. Part III focuses on the pertinent antitrust principles and the history of antitrust litigation between the performing rights societies and various licensees. Part IV examines recent decisions addressing blanket licenses in which courts have used similar analyses yet reached differing results. Part V analyzes possible solutions to the conflict between antitrust and copyright laws in the blanket licensing context and concludes that resolution of …

Recent Decisions, Timothy J. Peaden, Charles S. Baugh, Marc W. Joseph, Melissa Q. Windham

Vanderbilt Journal of Transnational Law

Antitrust--Noerr-Pennington Extends Immunity from Sherman Act to Foreign Litigation and Foreign Acts that result in Alleged Antitrust Violations, Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358 (5th Cir. 1983).

Antitrust--Foreign Import Cartels are Liable under the Sherman Act although domestic export competitors are shielded with a Webb-Pomerene exemption. Daishowa International v. North Coast Export Co., 1982-2 Trade Cas.64,774 (N.D. Cal.).

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Emerging Financial Centers: Legal and Institutional Framework

Edited by Robert C. Effros

Washington, D.C.: International Monetary Fund, 1982. Pp. xvi, 1150. $35.00.

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The Foreign Corrupt Practices Act

By George C. Greanias and Duane Windsor

Lexington, Massachusetts: Heath and Co.,1982. Pp. ix, 187. $23.95.

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Foreign Commerce and the Antitrust Laws Vols. I-II.

By Wilbur L. Fugate

Boston and Toronto: Little, Brown and Company, 1982. Vol. I, pp. xxiv, 427; vol. II, pp. xxiv, 460. $100.00.

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The Fund Agreement in the Courts: Volume II.

By Joseph Gold

Washington, D.C.: International Monetary Fund, 1982. Pp.xii, 499. $17.50.

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International Capital …

Municipalities And The Antitrust Laws: Home Rule Authority Is Insufficient To Ensure State Action Immunity, David J. White

Vanderbilt Law Review

This Recent Development first considers the evolution of the Parker doctrine in a variety of contexts-with special attention to the Supreme Court's decision in Lafayette and the Court's rationale in Boulder. After discussing the recent lower federal court decisions that based the availability of the Parker exemption upon the existence of general home rule authority under the respective state's constitution, this Recent Development examines the problems posed by the Boulder decision for cities and states contemplating economic regulation tailored to particular local concerns. This Recent Development then analyzes the competing policy interests in the question of a home rule municipality's …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

A Cargo Container Used to Ship Packaged Units is not a "Package" for Purposes of Limiting the Carrier's Liability for Loss under COSGA

Exemption from Compulsory Military Service will not Act as a Bar to Citizenship for an Alien if the Classification was later Changed to Make Him Eligible to Serve

Indeterminate Detension of an Excludable Alien in a Maximum Security Prison, Pending Unforeseeable Deportation, violates International Law

Patentholders do not Violate Antitrust Laws by Licensing only Foreign Patents even though the Patent Dependency created Limits Domestic Competition

Arbitral Tribunal lacks Jurisdiction to Hear the Claims of a Corporation Qualifying …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

International Regulation of Internal Resources By Mahnoush H. Arsanjani Charlottesville: University Press of Virginia,1981. Pp. 558. $37.50.

ANTITRUST AND AMERICAN BUSINESS ABROAD By James R. Atwood and Kingman Brewster, 2nd ed. Colorado Springs: Shepard's/Mc-Graw-Hill, 1981. Pp. 359 and 355.

FAMILY VIOLENCE: AN INTERNATIONAL AND INTERDISCIPLINARY STUDY By John M. Eekelar and Sanford N. Katz Toronto: Butterworth's, 1978. Pp. 572.

THE ARAB STATES AND THE PALESTINE CONFLICT By Barry Rubin Syracuse: Syracuse University Press, 1981. Pp. 298. $22.00.

THE KURDISH QUESTION IN IRAQ By Edmund Ghareeb Syracuse: Syracuse University Press, 1981. Pp. 223. $22.00.

THE CAMBRIDGE LECTURES Edited by Derek Mendes …

Symposium Introduction, Terry Calvani

Vanderbilt Journal of Transnational Law

This Symposium issue of the Vanderbilt Journal of Transnational Law presents a collection of excellent articles on current antitrust law and United States international trade practices by some of the most knowledgeable scholars in the field, all of whom possess not only superb academic credentials but also a wealth of experience in international antitrust practice. Wilbur Fugate, former chief of the Foreign Commerce Section of the Antitrust Division and a distinguished author on antitrust and foreign commerce, opens the Symposium by examining the Webb-Pomerene Act" in light of the very recently enacted Export Trading Company Act of 1982...

The Symposium …

The Export Trade Exception To The Antitrust Laws: The Old Webb-Pomerene Act And The New Export Trading Company Act, Wilbur L. Fugate

Vanderbilt Journal of Transnational Law

This Article discusses the history of the Webb Act as a prelude to a discussion of the new legislation. Because the standards in the new Export Act are similar to those in the Webb Act, the precedents under the Webb Act will remain important for interpreting the new legislation. Furthermore, a review of the Webb Act and of the alternatives proposed over the years gives an insight into the reasoning behind having an export exception to the antitrust laws... This Article will examine the Webb Act and its operation; the courts' treatment of the Webb Act; the manifold suggestions and …

Book Review, Joel Davidow (Reviewer)

Vanderbilt Journal of Transnational Law

Book Review

Antitrust and American Business Abroad James Atwood and Kingman Brewster 2d ed. New York: McGraw-Hill Publishing Co., 1981. Two-volume text. Pp. 359 and 355.

Reviewed by Joel Davidow

International antitrust is one of the gourmet specialties on the menu of United States law. The combination of competition law, international law, and patent law, spiced with complex diplomatic and trade issues as well as a dash of foreign flavor, is irresistible to the connoisseur. The proof: even though few law schools offer a separate course in international antitrust law and few lawyers deal with the subject regularly, articles, hornbooks, …

Updating The Antitrust Guide On International Operations, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

Since the enactment of the antitrust laws, policy makers, scholars, and business executives have debated whether the United States antitrust laws chill export and investment abroad. The terms of the debate have not changed significantly for more than a decade. The law and the government's enforcement policies, however, have changed. Since the United States Department of Justice issued its Guide on Antitrust and International Operations (Guide) on January 26, 1977, law and enforcement policy have become more hospitable to private business decisions that would increase exports and foreign investment.

This Article attempts to update the Guide. It is confined largely …

The Impact Of United States Antitrust Law On The Balance Of Trade, David N. Goldsweig, Kenneth D. Enborg, Thomas F. Walton

Vanderbilt Journal of Transnational Law

This Article explores the underlying propositions that the United States antitrust agencies have created a barrier to the export of United States industrial goods or have impeded their domestic manufacture with respect to this nation's major trading partners. We conclude that neither proposition is well supported by solid evidence, although improved cooperation among Government and business and a less litigious climate are desirable in this area as well as all other industry-government relations." This Article first considers the impact of antitrust enforcement on the export or overseas distribution stage of United States domestic producers and then turns to the effect …

Recent Decisions, David R. Simon, David D. Dowd

Vanderbilt Journal of Transnational Law

Antitrust--Act of State Doctrine Precludes Judicial Review of Cases in which Private Defendant Induces Foreign Sovereign to Boycott Plaintiff's Services and Products

David R. Simon

Plaintiff, a designer and manufacturer of short takeoff and landing (STOL) aircraft, sought damages from defendants for violation of sections 1 and 2 of the Sherman Act. Specifically, plaintiff alleged that defendant's employees falsely disparaged General Aircraft Corporation's (GAC) STOL aircraft products and services by circulating false and misleading performance reports and engaged in a "vendetta" designed to drive GAC out of business because of GAC's refusal to conduct Southeast Asian Helio sales under the …