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Antitrust Review Of The At&T/T-Mobile Transaction, Maurice Stucke, Allen Grunes Dec 2011

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice Stucke, Allen Grunes

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In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …


The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg D. Polsky, Andrew Lund Dec 2011

The Diminishing Returns Of Incentive Pay In Executive Compensation Contracts, Gregg D. Polsky, Andrew Lund

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For the past 30 years, the conventional wisdom has been that executive compensation packages should include very large proportions of incentive pay. This incentive pay orthodoxy has become so firmly entrenched that the current debates about executive compensation simply take it as a given. We argue, however, that in light of evolving corporate governance mechanisms, the marginal net benefit of incentive-laden pay packages is both smaller than appreciated and getting smaller over time. As a result, the assumption that higher proportions of incentive pay are beneficial is no longer warranted.

A number of corporate governance mechanisms have evolved to duplicate …


Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post Dec 2011

Cross-Cultural Readings Of Intent: Form, Fiction, And Reasonable Expectations, Deborah Waire Post

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No abstract provided.


Ncaa Transgender Student-Athlete 'Policy': Analysis, Shawn Crincoli Nov 2011

Ncaa Transgender Student-Athlete 'Policy': Analysis, Shawn Crincoli

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No abstract provided.


Injecting Law Student Drama Into The Classroom: Transforming An E-Discovery Class (Or Any Law School Class) With A Complex, Student-Generated Simulation, Paula Schaefer Oct 2011

Injecting Law Student Drama Into The Classroom: Transforming An E-Discovery Class (Or Any Law School Class) With A Complex, Student-Generated Simulation, Paula Schaefer

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Gem Finch, Boone Radley, and Pickle Harris are just three of the characters who play a dramatic – and key – role in my e-discovery focused pre-trial litigation class. I did not originally invite them into the class for the drama. I was interested in their email. In 2009, I was planning a pre-trial litigation class that would include e-discovery issues. But I could not find a pre-packaged case that included ESI – the electronically stored information that is the mainstay of e-discovery practice. The case materials included in most pre-trial litigation books involved car accidents and simple contract disputes. …


Transactional Lawyers And Inadvertent Disclosure, Paula Schaefer Oct 2011

Transactional Lawyers And Inadvertent Disclosure, Paula Schaefer

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The problems associated with inadvertent disclosure are often thought to be unique to litigators. The American Bar Association and most states seem to subscribe to that view. Model Rule of Professional Conduct 4.4(b) and equivalent rules in a majority of states provide that if a confidential document is inadvertently disclosed, the receiving lawyer is only obligated to notify the lawyer who made the mistake. Whether the receiving lawyer must return the document or take other steps, the Rule’s comment provides, “is a matter of law beyond the scope of these Rules.” In other words, if the disclosing lawyer wants the …


Crony Capitalism And Antitrust, Maurice Stucke Oct 2011

Crony Capitalism And Antitrust, Maurice Stucke

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In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T‑Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice’s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile?

This Essay examines the recent …


The Freewheelin' Judiciary: A Bob Dylan Anthology, Alex B. Long Oct 2011

The Freewheelin' Judiciary: A Bob Dylan Anthology, Alex B. Long

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This paper, presented as part of a symposium on Bob Dylan and the Law at the Fordham University School of Law, explores the ways in which judges have used the lyrics of Bob Dylan in their opinions.


Behavioral Antitrust, Maurice Stucke, Amanda P. Reeves Oct 2011

Behavioral Antitrust, Maurice Stucke, Amanda P. Reeves

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Competition policy is entering a new age. Interest in competition laws has increased world-wide, and the United States no longer holds a monopoly on antitrust policy. In the aftermath of the financial crisis, the question for competition authorities is whether and to what extent does bounded rationality, self-interest and willpower matter. This article explores how the behavioral economics literature will advance competition policy. With increasing interest in the United States and abroad in the implications of behavioral economics for competition policy, this Article first provides an overview of behavioral economics. It next discusses how the assumption of rational, self-interested profit …


Samantar And Executive Power, Peter B. Rutledge Oct 2011

Samantar And Executive Power, Peter B. Rutledge

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This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …


Samantar, Official Immunity And Federal Common Law, Peter B. Rutledge Oct 2011

Samantar, Official Immunity And Federal Common Law, Peter B. Rutledge

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This essay examines the theoretical underpinnings of the immunity of foreign government officials following the Supreme Court's recent decision in Samantar. Part of a forthcoming symposium with the Lewis and Clark Law Review, the paper tackles the federal common law in the Court's decision and, more broadly, international civil litigation. It criticizes the Court's unexamined assumption that its federal common law power extended to create an immunity that, at best, coexists only uncomfortably alongside the legislative framework of the FSIA. It explains the problematic implications of this assertion of federal common law, both for suits against foreign officials and for …


To Lynch A Child: Bullying And Gender Non-Conformity In Our Nation's Schools, Michael J. Higdon Jul 2011

To Lynch A Child: Bullying And Gender Non-Conformity In Our Nation's Schools, Michael J. Higdon

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“Lynching is a terror that has many forms; there is the lynching of men’s spirits as well as their bodies.” -- Richard Wright

In January 2010, a 9-year old boy named Montana Lance hung himself in a bathroom at the Texas elementary school he attended. Although certainly shocking, such acts are unfortunately becoming less and less unusual. In fact, the suicide of Montana Lance is very reminiscent of what happened in April 2009 when two 11-year-old boys, one in Massachusetts and one in Georgia, likewise committed suicide just days apart. What would cause these children to end their lives? The …


Proceed At Your Peril: Crowdfunding And The Securities Act Of 1933, Joan Macleod Heminway Jul 2011

Proceed At Your Peril: Crowdfunding And The Securities Act Of 1933, Joan Macleod Heminway

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A promising Web-based funding model for small business firms has emerged over the past few years. Crowdfunding (as this model has come to be known) actually includes a variety of business models, all of which use the Internet to fund business ventures by connecting promoters of businesses or projects needing funding with potential funders. Most of these funders are not professional investors; instead, they are just members of the Internet “crowd” that like the business idea of a particular entrepreneur and want to help him or her out with a nominal amount of funding — even $10.

Some (but not …


Why More Antitrust Immunity For The Media Is A Bad Idea, Maurice Stucke, Allen Grunes Jul 2011

Why More Antitrust Immunity For The Media Is A Bad Idea, Maurice Stucke, Allen Grunes

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With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. The Federal Trade Commission, for example, in recent hearings inquired as to whether antitrust immunity is necessary for newspapers’ collaboration and under what circumstances, if any, antitrust immunity for certain joint conduct could be justified.

Our essay explores why relaxing the federal antitrust laws for traditional media will not help consumers or the marketplace of ideas. We discuss the past problems with antitrust immunity generally and for the media industries specifically. We address the failures of the Newspaper Preservation Act, how deregulation …


From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr. Jul 2011

From Oglethorpe To The Overthrow Of The Confederacy: Habeas Corpus In Georgia, 1733-1865, Donald E. Wilkes Jr.

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This Article will provide, for the first time, a comprehensive account of the writ of habeas corpus in Georgia not primarily focused on use of the writ as a postconviction remedy. The Article covers the 132-year period stretching from 1733, when the Georgia colony was established, to 1865, when the Confederate States of America was finally defeated and the American Civil War came to a close.


Values As Part Of The Clinical Experience, Jaime Baker Roskie Jul 2011

Values As Part Of The Clinical Experience, Jaime Baker Roskie

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This essay is based on a short talk I gave at the “Practically Grounded” conference hosted by Pace Law School’s Land Use Law Center. This piece discusses the University of Georgia (UGA) Land Use Clinic, specifically why and how I interact with my students in the classroom about values as part of the clinic experience. It attempts to tie my own teaching methods to those suggested in Best Practices for Legal Education.


Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck Jul 2011

Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck

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One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …


Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal Jul 2011

Contract And Procedure, Peter B. Rutledge, Christopher R, Drahozal

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This paper examines both the theoretical underpinnings and empirical picture of procedural contracts. Procedural contracts may be understood as contracts in which parties regulate not merely their commercial relations but also the procedures by which disputes over those relations will be resolved. Those procedural contracts regulate not simply the forum in which disputes will be resolved (arbitration vs litigation) but also the applicable procedural framework (discovery, class action waivers, remedies limitations, etc.). At a theoretical level, this paper explores both the limits on parties' ability to regulate procedure by contract (at issue in the Supreme Court's recent Rent-A-Center decision) and …


The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett Jun 2011

The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett

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This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …


The Iaaf Hyperandrogenism Regulations And Discrimination, Shawn Crincoli Jun 2011

The Iaaf Hyperandrogenism Regulations And Discrimination, Shawn Crincoli

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No abstract provided.


The Limits Of Procedural Private Ordering, Jaime L. Dodge Jun 2011

The Limits Of Procedural Private Ordering, Jaime L. Dodge

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Civil procedure is traditionally conceived of as a body of publicly-set rules, with limited carve-outs – most commonly, forum selection and choice of law provisions. I argue that these terms are mere instantiations of a broader, unified phenomenon of procedural private ordering, in which civil procedure is no longer irrevocably defined by law, but instead is a mere default that can be waived or modified by contract. Parties are no longer merely selecting between publicly-created procedural regimes but customizing the rules of procedure to be applied by the court – from statutes of limitations, discovery obligations and the admissibility of …


Asymmetrical Jurisdiction, Matthew I. Hall Jun 2011

Asymmetrical Jurisdiction, Matthew I. Hall

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Most people — and most lawyers — would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap — a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction.

In an effort to address this problem, …


Optimal Lead Plaintiffs, Elizabeth Chamblee Burch May 2011

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

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Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse preferences …


Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller Apr 2011

Strategic Default: The Popularization Of A Debate Among Contract Scholars, Meredith R. Miller

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A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether …


Arbitration As Contract: The Need For A Fully Developed And Comprehensive Set Of Statutory Default Legal Rules, Jack Graves Apr 2011

Arbitration As Contract: The Need For A Fully Developed And Comprehensive Set Of Statutory Default Legal Rules, Jack Graves

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This article addresses an increasingly important topic in today’s commercial world—the United States Federal Arbitration Act. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts (often from the perspective of consumer or employment arbitration), this article focuses specifically on commercial, business-to-business arbitration and critically evaluates the Act as a set of default legal rules governing arbitration as a unique contractual business relationship.

The article first looks at arbitration from a contractual default rules perspective, and then employs this perspective to analyze (1) the existing federal statutory scheme, (2) …


Awakening The Press Clause, Sonja R. West Apr 2011

Awakening The Press Clause, Sonja R. West

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The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, …


A More Critical Use Of Fairness Opinions As A Practical Approach To The Behavioral Economics Of Mergers And Acquisitions, Joan Macleod Heminway Apr 2011

A More Critical Use Of Fairness Opinions As A Practical Approach To The Behavioral Economics Of Mergers And Acquisitions, Joan Macleod Heminway

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This paper responds to Professor Donald C. Langevoort's essay entitled "The Behavioral Economics of Mergers and Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)). Together with Professor Langevoort's essay and another responsive work written from the standpoint of behavioral psychology – Eric Sundstrom's "Tall Steps, Slippery Slopes & Learning Curves in the Behavioral Economics of Mergers & Acquisitions" (12 Transactions: Tenn. J. Bus. L. 65 (2011)) – this paper preliminarily explores solutions to behavioral issues in the context of mergers and acquisitions.

Specifically, this paper contends that changes in the contents, construction, use, and assessment of fairness opinions may …


Foreword: Divine Operating System?, Glenn Harlan Reynolds Apr 2011

Foreword: Divine Operating System?, Glenn Harlan Reynolds

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This Foreword to a Tennessee Law Review symposium on the implications of a federal constitutional convention surveys a number of proposals for reining in the growth of federal government power and spending, ranging from the creation of a new house of Congress with the sole power to repeal bills, to more mundane proposals such as a balanced budget amendment and term limits.


The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron Apr 2011

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

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No abstract provided.


Work, Caregiving, And Masculinities, Ann C. Mcginley Apr 2011

Work, Caregiving, And Masculinities, Ann C. Mcginley

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In her book Reshaping the Work-Family Debate, Joan Williams demonstrates the vulnerability of parent workers in working class America. In Chapter 2, "One Sick Child Away from Being Fired," she examines the records of ninety-nine union arbitrations to analyze the problems of working class parents who struggle to juggle their working and parenting responsibilities. Because this chapter is a tour de force in an overall excellent book, and because it suggests an area that Professor McGinley's research has focused on over the past number of years, in this Essay, Professor McGinley limits her discussion almost exclusively to this chapter. …