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Full-Text Articles in Law

Non-Compete Legislation Is Getting Worse With Latest Revisions, Nathan B. Oman Sep 2019

Non-Compete Legislation Is Getting Worse With Latest Revisions, Nathan B. Oman

Nathan B. Oman

No abstract provided.


Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese Sep 2019

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Alan J. Meese

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise ...


Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese Sep 2019

Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese

Alan J. Meese

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Supreme Court reversed Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), which had banned minimum resale price maintenance (“minimum RPM”) as unlawful per se. For many, Leegin was a straightforward exercise of the Court’s long-recognized authority, implied by the Sherman Act’s rule of reason, to adjust antitrust doctrine in light of new economic learning. In particular, Leegin invoked the teachings of transaction cost economics (“TCE”), which holds that many non-standard agreements, including minimum RPM, are voluntary mechanisms that reduce the transaction costs that manufacturers incur when they rely upon independent dealers to distribute their goods. For instance, proponents of TCE, including Nobel Laureate Oliver Williamson, have asserted that minimum RPM can prevent free riding and ensure that dealers engage in an optimal amount and type of promotion. Invoking these and other possible benefits, the Leegin Court ruled that minimum RPM could produce “redeeming virtues” and thus did not satisfy the normal test for per se condemnation. In so doing, the Court adhered to the rule of reason’s requirement, articulated in Standard Oil Co. v. United States, 221 U.S. 1 (1911), that courts adjust antitrust doctrine when “more accurate economic conceptions” undermine previous decisions.

However, some have chosen to resist Leegin to the utmost. In particular, scholars, enforcement officials, and forty-one state attorneys general have sought to convince Congress and/or state legislatures to reinstate the per se rule by statute, for instance, and have contended that minimum RPM is unlawful per se under existing state antitrust laws. Many have also argued that, pending Leegin’s reversal, courts should subject minimum RPM to a “quick look” rule of reason, whereby the practice is presumed unlawful, immediately casting upon the defendant a burden of justification. Perhaps because of these efforts, legislation that would have reversed Leegin and codified Dr. Miles was proposed by Congress in 2011.

There is, of course, a long history of Congress overriding straightforward applications of the Sherman Act, sometimes at the behest of special interest groups that benefit from such exemptions. However, those who resist Leegin and seek to reinstate the per se rule against minimum RPM do not rely upon the power of legislatures to pass wealth-reducing legislation. Instead they argue that Leegin “got it wrong” when applying basic antitrust principles animating the rule of reason. For these advocates, then, a new per se ban on minimum RPM would merely undo Leegin’s mistake.

This article refutes the various arguments that Leegin’s detractors have made for reinstating Dr. Miles and/or “quick look” treatment. TCE, it is shown, undermined the central premise of the per se rule, namely, that minimum RPM is economically indistinguishable from a naked horizontal cartel between dealers. This realization casts upon those who resist Leegin a burden of articulating and supporting an alternative rationale for per se condemnation. As the Article shows, Leegin’s detractors have not met this burden. Instead, their various arguments contradict TCE, basic antitrust principles, or both. Taken to their logical conclusion, these arguments would require the Court to abandon decades of jurisprudence based upon TCE and/or the long-standing test for per se illegality. However, Leegin’s detractors have offered no argument in favor of such radical changes.

Thus, far from correcting Leegin’s purported antitrust error, reimposition of the ban on minimum RPM would constitute a rejection of the “more accurate economic conceptions” that should drive antitrust doctrine and thus be akin to a welfare-reducing special interest exemption from the Sherman Act. Such exemptions are read narrowly, to minimize the impact of special interest influence in the legislative process. Indeed, even if Congress or the states do codify a per se ban on minimum RPM, state and federal courts will have various doctrinal strategies at their disposal to minimize the wealth-reducing impact of such legislation by, for instance, reading any amendment narrowly and restricting the class of plaintiffs who can challenge such agreements. As a result, resistance to Leegin may be more than merely misguided; it may also be futile


White Collar Crime: A Legal Overview, Paul Marcus Sep 2019

White Collar Crime: A Legal Overview, Paul Marcus

Paul Marcus

No abstract provided.


Crowdfunding Without The Crowd, Darian M. Ibrahim Sep 2019

Crowdfunding Without The Crowd, Darian M. Ibrahim

Darian M. Ibrahim

The final crowdfunding rules took three years for the Securites and Exchange Commission to pass, but crowdfunding—the offering of securities over the Internet—is now a reality. But now that crowdfunding is legal, will it be successful? Will crowdfunding be a regular means by which new companies raise money, or will it be relegated to a wasteland of the worst startups and foolish investors? This Article argues that crowdfunding has a greater chance of success if regulators abandon the idea that the practice does (and should) employ “crowd-based wisdom.” Instead, I argue that crowdfunding needs intermediation by experts that ...


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Christopher Byrne

No abstract provided.


They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield Sep 2019

They Can Do What!? Limitations On The Use Of Change-Of-Terms Clauses, Peter A. Alces, Michael M. Greenfield

Peter A. Alces

No abstract provided.


The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces Sep 2019

The Confluence Of Bulk Transfer And Fraudulent Disposition Law, Peter A. Alces

Peter A. Alces

No abstract provided.


Roll Over, Llewellyn?, Peter A. Alces Sep 2019

Roll Over, Llewellyn?, Peter A. Alces

Peter A. Alces

No abstract provided.


Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces Sep 2019

Reinventing The Wheel, Marion W. Benfield Jr., Peter A. Alces

Peter A. Alces

No abstract provided.


Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces Sep 2019

Surreptitious And Not-So-Surreptitious Adjustment Of The U.C.C.: An Introductory Essay, Peter A. Alces

Peter A. Alces

No abstract provided.


Reconsidering Consideration In The Restatement (Third) Of Suretyship, Peter A. Alces Sep 2019

Reconsidering Consideration In The Restatement (Third) Of Suretyship, Peter A. Alces

Peter A. Alces

No abstract provided.


Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne Sep 2019

Is It Time For The Restatement Of Contracts, Fourth?, Peter A. Alces, Christopher Byrne

Peter A. Alces

No abstract provided.


On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch Sep 2019

On The Ucc Revision Process: A Reply To Dean Scott, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


Generic Fraud And The Uniform Fraudulent Transfer Act, Peter A. Alces Sep 2019

Generic Fraud And The Uniform Fraudulent Transfer Act, Peter A. Alces

Peter A. Alces

No abstract provided.


Introduction To The Revision Of Article 2 Of The Uniform Commercial Code Symposium, Peter A. Alces Sep 2019

Introduction To The Revision Of Article 2 Of The Uniform Commercial Code Symposium, Peter A. Alces

Peter A. Alces

No abstract provided.


Fraud Bases Of Bulk Transferee Liability, Peter A. Alces Sep 2019

Fraud Bases Of Bulk Transferee Liability, Peter A. Alces

Peter A. Alces

No abstract provided.


Clearer Conceptions Of Insider Preferences, Peter A. Alces Sep 2019

Clearer Conceptions Of Insider Preferences, Peter A. Alces

Peter A. Alces

No abstract provided.


Commercial Codification As Negotiation, Peter A. Alces, David Frisch Sep 2019

Commercial Codification As Negotiation, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


Commenting On "Purpose" In The Uniform Commercial Code, Peter A. Alces, David Frisch Sep 2019

Commenting On "Purpose" In The Uniform Commercial Code, Peter A. Alces, David Frisch

Peter A. Alces

No abstract provided.


A Critical Analysis Of The New Uniform Fraudulent Transfer Act, Peter A. Alces, Luther M. Dorr Sep 2019

A Critical Analysis Of The New Uniform Fraudulent Transfer Act, Peter A. Alces, Luther M. Dorr

Peter A. Alces

No abstract provided.


An Agenda For Reform Of The Article 9 Filing System, Peter A. Alces, Robert M. Lloyd Sep 2019

An Agenda For Reform Of The Article 9 Filing System, Peter A. Alces, Robert M. Lloyd

Peter A. Alces

No abstract provided.


An Essay On Independence, Interdependence, And The Suretyship Principle, Peter A. Alces Sep 2019

An Essay On Independence, Interdependence, And The Suretyship Principle, Peter A. Alces

Peter A. Alces

In this article, Professor Peter A. Alces investigates the tension that exists between the independent and interdependent nature of contractual relations arising in suretyship agreements and letter of credit transactions. This discussion is particularly timely as the American Law Institute is currently revising both the Restatement of the Law of Suretyship and Article 5 of the Uniform Commercial Code, "Letters of Credit." This article discerns a basic incongruity between the two revisions' treatment of interrelated multiple party rights and discusses the consequences that this incongruity can be expected to have upon commercial transactions.


Abolish The Article 9 Filing System, Peter A. Alces Sep 2019

Abolish The Article 9 Filing System, Peter A. Alces

Peter A. Alces

No abstract provided.


The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl Sep 2019

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better ...


Allocating Power Between Courts And Arbitrators - And Why Scholars Of Federal Courts Should Care, Aaron-Andrew P. Bruhl Sep 2019

Allocating Power Between Courts And Arbitrators - And Why Scholars Of Federal Courts Should Care, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber Aug 2019

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Daniel A Farber

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than ...


Mistake In Contract Law, Melvin A. Eisenberg Aug 2019

Mistake In Contract Law, Melvin A. Eisenberg

Melvin A. Eisenberg

Develops the legal rules that should govern mistake in contract law on a functional basis. Types of mistake that are relevant in contract law on the basis of their character; Reasons of efficiency and morality that apply to cases in which a non-mistaken party knew or had reason to know that a payment was mistakenly made; Distinction between mistaken factual assumptions and evaluative mistakes.


Commercial Law Information Resources, Adeen Postar Aug 2019

Commercial Law Information Resources, Adeen Postar

Adeen Postar

No abstract provided.


Money Norms, Julia Y. Lee Jul 2019

Money Norms, Julia Y. Lee

Julia Lee

Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists ...