Law Commons^™

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Journal Articles

A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer welfare and the natural price decrease that follows from employer restraints of trade cause underenforcement of antitrust law against anticompetitive employer conduct. Such a result is anomalous, because the consumer welfare standard that permeates antitrust law should protect employees as much as customers that purchase goods.

To solve the under-enforcement problem, this Note proposes that courts analyzing a restraint of …

The Failed Superiority Experiment, Christine P. Bartholomew

Journal Articles

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …

The Insurability Of Claims For Restitution, Christopher French

Journal Articles

Does and should a wrongdoer’s liability insurance cover an aggrieved party’s claim for restitution (e.g., a claim for the disgorgement of ill-gotten gains)? This article answers those questions. It does so by first answering the question of whether claims for restitution are covered under the terms of liability insurance policies. Then, after concluding that they are, it addresses the question of whether claims for restitution should be insurable as a matter of public policy and insurance law theory. There are long-standing legal and equitable principles that, on the one hand, dictate that a wrongdoer should not be allowed to benefit …