Law Commons^™

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

Michigan Law Review

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy that improvements in the market for large public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This Article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000 through 2004 with the recoveries in bankruptcy reorganizations during the same period. Controlling for company …

Antitrust Modesty, Daniel A. Crane

Michigan Law Review

Given Hovenkamp's influence and intellect, the publication of The Antitrust Enterprise is a major event, particularly since he sets out, according to the book's jacket, to provide "the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago." Nevertheless, one could quibble with the jacket's claim. Richard Posner substantially updated his own authoritative and compact exposition of antitrust law in 2001. In a 2003 book review, Hovenkamp called Posner's second edition a "marvelous and important book." So, before beginning a review of Hovenkamp's new work, it seems necessary …

Brand New Deal: The Branding Effect Of Corporate Deal Structures, Victor Fleischer

Michigan Law Review

Consider the unusual legal structures of the following four deals: When Google went public in 2004, it used an Internet auction to sell its stock to shareholders. When Ben & Jerry's went public in 1984, it sold its stock only to Vermont residents. Steve Jobs's contract with Apple entitles him to an annual cash salary of exactly one dollar. Stanley Works, a Connecticut toolmaker, considered reincorporating in Bermuda to reduce its tax liability. Under public pressure, it changed its mind and remains legally incorporated in Connecticut. What do these deals have in common? In each case, the legal infrastructure of …

Antitrust Standing In Private Merger Cases: Reconciling Private Incentives And Public Enforcement Goals, Joseph F. Brodley

Michigan Law Review

This article examines a vital problem of private antitrust enforcement - the standing of private merger litigants - where the unresolved tension between public antitrust goals and the private interests of litigants threatens enforcement breakdown. Private merger enforcement is at risk not because courts have determined that such enforcement is undesirable, but because courts have failed to see the problem as an issue of systems design requiring effective integration of public and private enforcement. Instead they have focused on particular elements of antitrust standing - feared abuses by wrongly motivated plaintiffs - neglecting system-wide effects and jeopardizing the health of …

Labor Law Successorship: A Corporate Law Approach, Edward B. Rock, Michael L. Wachter

Michigan Law Review

In this article, we take an approach fundamentally different from that of the labor law commentators. We start from a broader perspective than is common: successorship is as important an issue for corporate law as it is for labor law. Given that the two principal inputs to the firm are labor and capital, it would be surprising if the laws for labor law successorship were completely different from the laws for corporate law successorship. To the extent that differences exist, those differences should hinge upon differences between the employees' and the creditors' relationships with the firm.

European Merger Control: Legal And Economic Analyses On Multinational Enterprises, Volume 1, Michigan Law Review

Michigan Law Review

A Review of European Merger Control: Legal and Economic Analyses on Multinational Enterprises, Volume 1 edited by Klaus Hopt

Survival Of Rights Of Action After Corporate Merger, Michigan Law Review

Michigan Law Review

Once a corporation ceases to exist, most courts permit neither primary nor derivative suits to be brought in its name. If a merger precipitates that corporate demise, courts usually hold that standing to sue, like other assets of the "merged" corporation, passes to the surviving corporation. This Note ponders the merit of that rule of passage.

Section I categorizes the cases defining the rule of passage. Some courts have steadfastly adhered to the rule and denied standing to the merged corporation's shareholders. Other courts, fearing that the rule would preclude meritorious actions, have created exceptions allowing these shareholders to sue …

United States V. Falstaff Brewing Corporation: Potential Competition Re-Examined, Michigan Law Review

Michigan Law Review

This Note will examine and criticize the perceived potential competition doctrine suggested by the Court. Then, it will discuss the questions raised in the concurrences concerning the use of subjective evidence and the role of incipient competitive effects. Finally, an alternative approach that focuses on the acquisition of or the possibility of acquiring small, "toehold" firms will be proposed.

The "Warren Court" And The Antitrust Laws: Of Economics, Populism, And Cynicism, Thomas` E. Kauper

Michigan Law Review

No one could quarrel with the simple assertion that the so-called "Warren Court" has had a significant, if indeed not extraordinary, impact on the development of the antitrust laws. It could hardly have been otherwise. The fifteen years since 1953 represent virtually one-fourth of the total history of the Clayton and Federal Trade Commission Acts, and one fifth of the time which has elapsed since passage of the Sherman Act. Every Supreme Court decision under the 1950 amendments to section 7 of the Clayton Act, the so-called antimerger law, has come after the accession of Chief Justice Warren to the …

Law And Quantitative Multivariate Analysis: An Encounter, Arnold H. Lozowick, Peter O. Steiner, Roger Miller

Michigan Law Review

This Article chronicles one attempt to blend the sophisticated science of statistics with the mysterious art of the law in an antitrust case. Once again, we hope to provide lawyers with an understanding of a tool which can be used in resolving complex factual questions wherever they arise, not merely in an antitrust context. Although the lawyer will not emerge from this encounter as an accomplished statistician or economist, he may be able to talk to his fellow social scientists and to achieve a more fruitful application of social science techniques to the law.

The Ftc's Power To Seek Preliminary Injunctions In Anti-Merger Cases, James H. Cohen

Michigan Law Review

This Comment will examine the bases and the implications of the Supreme Court's holding. It will point out a number of problems raised by granting the FTC this remedial power, and will suggest that the situations in which preliminary injunctions may be obtained from a court of appeals should be strictly limited.

Marriage And Divorce - Power Of Court To Modify Decree For Alimony Or Property Settlement As Affected By Agreement Of The Parties, Roy L. Rogers

Michigan Law Review

Contracts settling the property interests of a husband and wife or providing for support of the wife or for both of these ends are no doubt valid in all jurisdictions where the parties may contract with each other if the purpose is not to facilitate divorce or future separation. Even at common law, separation agreements could be made, however, through the intervention of a trustee. If not invalid, the contract may ordinarily be enforced in an action on the promise. But, when a divorce is decreed, it is quite often the practice to incorporate in the divorce decree the provisions …

A Reappraisal Of Appraisal Statutes, Norman D. Lattin

Michigan Law Review

Two recent cases, under two of the most carefully framed corporation statutes, have raised again the question of what to do with the shareholder who dissents from fundamental change in his corporation. The appraisal statutes were devised to meet this problem by giving the shareholder, in the limited number of fundamental changes stated in the statute, the right to demand the fair, cash or market value of his share and retire from the company. The statutes of two states have given him this right as almost the exclusive means of protecting his interest in the company if he is dissatisfied …

Taxation - Federal Income Tax - Distinction Between Sale And Tax Exempt Reorganization Under Section 112, Henry J. Merry

Michigan Law Review

The recent Supreme Court decision in Le Tulle v. Scofield, disapproving the views of four out of five circuit courts of appeals, appears to add a new and more specific requirement to the already complex law on the subject of statutory reorganization under the Revenue Act of 1928 -- that the consideration received by the transferor corporation include some stock of the transferee corporation. In the subject case, the Gulf Coast Irrigation Company transferred substantially all its assets to the Gulf Coast Water Company in exchange for $50,000 in cash and $750,000 in mortgage bonds, four-fifths of which matured …

Corporations - Power Of Majority Stockholders To Reorganize By Transfer Of Assets To New Corporation In Exchange For Stock, Kenneth K. Luce

Michigan Law Review

A private corporation is solvent and prosperous but is nearing the time when its charter will expire. The directors call a stockholders' meeting at which the majority of the stockholders vote: first, to form a new corporation and, second, to transfer all the assets of the old corporation to the new corporation in consideration for the entire capital stock of the new corporation and the assumption by the new corporation of all liabilities of the old corporation. The plan further provides that the old corporation is then to be dissolved, and the stock of the new corporation is to be …

The Emergency Railroad Transportation Act, 1933, Edwin C. Goddard

Michigan Law Review

From Munn v. Illinois to the Emergency Railroad Transportation Act of 1933 has been a long journey traveled by the public and the public utilities, notably the largest public utility, the railroads. In 1876 the very term "public utility" was unknown. The idea that the public could break in on laissez faire and regulate any business was to the persons regulated, and to their lawyers, odious. With them agreed Justices Field, Brewer, Peckham, and many another, who predicted that the public would not long tolerate such interference with business. But prophecy is hazardous, and these prophets were wrong.

Trade Restraints -- Anti-Trust Laws -- Common Selling Agency

Michigan Law Review

Many students of the decisions under the Sherman Anti-Trust Act have voiced the opinion that the Supreme Court has been using one measuring stick to determine the legality of a combination of competing industrial units which takes the form of a merger or consolidation with highly centralized management and control of all activities, and quite a different stick for judging a combination formed for the purpose of stabilizing prices and production through cooperation in one form or another between competing units which retain their independence so far as management and control of production and financing are concerned. Thus in the …