Marketing Law Commons^™

Coercive Appointments Of Counsel In Civil Cases In Forma Pauperis: An Easy Case Makes Hard Law, William B. Fisch

Faculty Publications

The power to appoint an unwilling attorney, whether judicial or statutory in origin, has been challenged in principle on three grounds, founded in the Federal Constitution and its state counterparts: (i) that to require the lawyer to serve constitutes involuntary servitude, within the meaning of the thirteenth amendment;' (ii) that it constitutes an unlawful taking of property, or at the very least constitutes a taking for a public use which requires just compensation, under the fifth amendment;8 and (iii) that to subject attorneys as a class to such an obligation constitutes discrimination which would deny them equal protection of the …

European And American Antitrust Regulation Of Pricing By Monopolists, Gregory B. Adams

Vanderbilt Journal of Transnational Law

Article 86 of the Treaty of Rome outlaws any "abuse ... of a dominant position within the common market or a substantial part of it." The EEC prohibition is similar to the developed meaning of "monopolization" in section 2 of the Sherman Act, requiring both market power and improper conduct. This Article analyzes the type of conduct that is considered improper: specifically, the pricing practices that constitute abuse under article 86, or monopolization under section 2.

Article 86 provides examples that help determine what abuse is:

Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase …

Market Incentives For Safety, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In the heated atmosphere generated by inch-high headlines and multimillion-dollar liability suits, two important facts often get lost. First, society's awareness of what ensuring reasonably complete safety would cost rarely matches the intensity of its demands for such assurance. And second, the most powerful forces working to make products and workplaces safer are not the edicts of government but the dynamics of the market. True, there are situations in which the market cannot by itself create effective incentives for safety, but in the vast majority of cases it can-and does. Drawing on his extensive research into the regulation of risk, …

The Resale Price Maintenance Compromise:A Presumption Of Illegality, Michael D. Mckibben

Vanderbilt Law Review

This Note explores several problems with recent RPM decisions: (1) the effect of the per se rule on producers' rights to control their marketing strategies; (2) inconsistent use of the plural action requirement as a foil for avoiding or invoking the per se rule; (3) the suppression of benign or pro-competitive activities because of the rule; (4) the difficulties with free rider marketing; and (5) the obstacles to advice and planning that recent decisions have created. This Note contends that a new standard, a rebuttable presumption against legality, would alleviate most, if not all, problems that the inflexible per se …

The Insider Trading Sanctions Act Of 1984 And Its Effect On Existing Law, Donald C. Langevoort

Vanderbilt Law Review

The legislative history of the Act shows that its principal drafters regarded those who trade on material confidential information as "thieves," deserving substantial penalties. The adoption of the Act is an expression that the existing laws should be used aggressively to curb the misuse of information. Unfortunately, such a result-oriented direction fits uncomfortably within the confining conceptual structure for rule 10b-5 built in recent years by the Supreme Court. Lower courts therefore must flesh out the law of insider trading based on inconsistent mandates, which will make the future path of the law both unpredictable and interesting.

The Fair Market Value Of Federal Coal, David A. Gulley

West Virginia Law Review

No abstract provided.

False Advertising: A Discussion Of A Competitor's Rights And Remedies, Gary Schuman

Loyola University Chicago Law Journal

No abstract provided.

Coping With The Time Dimension In Products Liability, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Damages For Insider Trading In The Open Market: A New Limitation On Recovery Under Rule 10b-5, John B. Grenier

Vanderbilt Law Review

The Elkind court's adoption of a "disgorgement measure" of damages for insider trading on undisclosed misrepresented material information in the open market is basically sound. In allowing compensation to the extent practicable, the Second Circuit chose the best solution among the available alternatives. The decision's paramount problems arise in its shifted emphasis to deterrence; the court has neither provided plaintiffs with a sufficient incentive to sue nor created the level of deterrence that some cases might require. Future courts, however, can remedy this situation if they follow Elkind and also award punitive damages in cases in which plaintiffs' losses exceed …

The Role Of Warranties And Product Standards In Solar Energy Development, William H. Lawrence, John H. Minan

Vanderbilt Law Review

This Article examines the use of warranties and product standards in solar marketing as ways to bring about the needed confidence in and acceptance of solar equipment. The first part of the Article analyzes relevant warranty law from the perspectives of solar sellers and buyers. Some government and private groups have argued that warranties can provide the needed impetus for solar development, and there is thus a great tendency today to view warranties as the means to encourage solar usage. The premise advanced in this part of the Article, however, is that warranty law, operating independently, is unlikely to instill …

Products Liability--An Analysis Of Market Share Liability, David A. Fischer

Faculty Publications

In Sindell v. Abbott Laboratories the Supreme Court of California created the market share liability theory of recovery for products liability cases. The innovative Sindell theory, which applies to certain products liability cases in which causation is either questionable or difficult to prove, departed significantly from the traditional tort principles of causation and liability. The theory allows plaintiffs to recover damages for their injuries, but it discounts the defendant's liability by the probability that it did not cause the harm.

Extending The Boundaries Of Strict Products Liability: Implications Of The Theory Of The Second Best, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Restrictions On Electric Utility Advertising, Michigan Law Review

Michigan Law Review

This Note reconsiders the constitutionality of New York's restriction on advertising by electric utilities. Section I explains how and why the Supreme Court's current analysis of the first amendment distinguishes commercial speech from other forms of speech. Section II looks at what protection is due commercial speech and weighs the competing interests in the specific context of utility advertising. The Note concludes that states may restrict utility advertising to encourage energy conservation.

Attorney Solicitation: The Scope Of State Regulation After Primus And Ohralik, David A. Rabin

University of Michigan Journal of Law Reform

The purpose of this article is to analyze the opinions in Primus and Ohralik, to delineate the scope of permissible state regulation in the wake of those two decisions, and to recommend specific changes in existing state solicitation rules. Part I examines the general nature of attorney solicitation law - by whom it is made and how it is enforced. Part II describes the statutory and constitutional aspects of solicitation law prior to Primus and Ohralik. Part III discusses the Court's holdings in Primus and Ohralik, and the changes in current statutory schemes required by the two …

Fairness And Unfairness In Television Product Advertising, Michigan Law Review

Michigan Law Review

The first section of this Note explores the impact of television product advertising on viewer attitudes. The next two sections set forth the statutory basis on which the Federal Communications Commission and the Federal Trade Commission could provide for the effective presentation of contrasting points of view on controversial issues implicitly or explicitly raised by television product advertising, could ensure that the implicit messages of such advertisements are delivered fairly and without deception, and could counter the adverse effects of such advertising. The purpose of these sections is not to predict actual regulatory behavior, for in fact the FCC and …

State Regulation Of Alien Land Ownership, William B. Fisch

Faculty Publications

In the 1970's, due to a number of factors only one of which is the new-found wealth of the oil-producing nations, the volume of foreign direct investment in the United States has increased dramatically. The magnitude of this capital inflow, while it is doubtless beneficial in many respects, has caused widespread alarm over the possibility of a loss of economic sovereignty. Over the last several years efforts have been made to establish a national system of control over such investment. These efforts are continuing, but so far without conspicuous success.

The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review

Michigan Law Review

Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …

Design Defect Litigation Revisited, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Book Reviews, Joseph J. Norton, L. Harold Levinson

Vanderbilt Journal of Transnational Law

When considered as an installment in the unfolding of Friedmann's views, based on his earlier writings, the conclusion to the book under review is to be cherished. When considered, on the other hand, solely in context of the contributed chapters of the same volume, the conclusion does not emerge as Friedmann at his most forceful or persuasive. To find the best of Friedmann, we need only sample his prolific contributions to the law reviews, whether on the United States involvement in the Vietnam conflict, the judgment of the International Court in the South West Africa cases, the risks to humanity …

Recent Decisions, Mark A. Schneider

Vanderbilt Journal of Transnational Law

This landmark decision is the first time that the Court of Justice has ordered a party abusing a dominant position to correct that abuse constructively, by requiring the monopolizer to sell to the complaining and injured party sufficient quantities to satisfy that party's requirements. Although not novel when compared with United States antitrust law, this is one large step beyond previous decisions within the EEC. The wide spectrum of remedies available under American law, ranging from criminal prosecution, to administrative orders, and to civil suits where the broad powers of equity are available, has not previously been applied within the …

Billboard Control Under The Highway Beautification Act Of 1965, Roger A. Cunningham

Michigan Law Review

Although the advertising control provisions of the Highway Beautification Act of 1965 have been the subject of unremitting controversy from the date of enactment until the present time, only three substantive amendments to title I have been adopted in the intervening years. These are the amendments to subsections ( d) and (j) and the addition of a new subsection (n) all of which were adopted in 1968.

Section 43(A) Of The Lanham Act: Its Development And Potential, Daniel J. Mulcahy

Loyola University Chicago Law Journal

No abstract provided.

Billboard Regulations, And Aesthetics, Richard Sutton

Cleveland State Law Review

The regulation of outdoor advertising has prompted a surprisingly prodigious amount of controversy and litigation. It has been challenged as a denial of free speech, due process, and equal protection; it has been upheld on nuisance4 and real property grounds, and sustained on the basis of public health, safety, morality, comfort and convenience, aesthetics, and the right to be let alone."

Corrective Advertising And The Ftc: No, Virginia, Wonder Bread Doesn't Help Build Strong Bodies Twelve Ways, Michigan Law Review

Michigan Law Review

This Note will outline the development and theory of corrective advertising. In particular, it will discuss the residual effects of deceptive advertising, which are the basis for a corrective remedy. The Commission's statutory authority to require corrective advertising will then be explored: the analysis will compare corrective advertising with other types of affirmative disclosure required by the Commission and relate it to the present use of divestiture as a trade regulation remedy. Finally, the possible public benefit accruing from corrective advertising will be considered, along with some thoughts on what policies the FTC should pursue in order to maximize that …

Souped Up Affirmative Disclosure Orders Of The Federal Trade Commission, William F. Lemke Jr.

University of Michigan Journal of Law Reform

Under section 5(b) of the Federal Trade Commission Act the Commission is given authority to conduct hearings, make findings and issue cease and desist orders requiring any person, partnership or corporation to cease and desist from use of unfair methods of competition or unfair or deceptive practices in commerce. The Commission also issues consent orders in cases which are concluded by agreement between the Commission and the allegedly offending party. Consent orders have the same force and binding effect as those issued after hearings and findings. Although it is well established that the Commission has very broad discretion and authority …

Bauer & Greyser: Advertising In America: The Consumer View, Robert L. Birmingham

Michigan Law Review

A Review of Advertising in America: The Consumer View by Raymond A. Bauer and Stephen A. Greyser

Regulation Of Prescription Drug Discount Advertising

Washington and Lee Law Review

No abstract provided.

State Trading Monopolies In The European Economic Community, Ernst-Joachim Mestmacker

Vanderbilt Law Review

Governments have long recognized state trading monopolies as convenient devices to achieve political and commercial objectives concurrently, using the leverage of their economic power to political ends and vice versa. The effectiveness of the Boston Tea Party, and its aftermath, in adjusting state trading monopolies to the requirements of free trade settled the problem for the United States only. Thus, when the parties to the Treaty of Rome' agreed to divest themselves of their control over intra-Community trade by the establishment of a customs union, they were faced with the problems posed by their trading monopolies as well. The state …

Boycotts And Restrictive Marketing Arrangements, Richard M. Buxbaum

Michigan Law Review

It is currently a common if still relatively unheralded practice for a "fired" dealer to bring an antitrust action against his former manufacturer-supplier (and perhaps other dealers), alleging that his termination was the result of a boycott. Boycotts-collective efforts to obtain the exclusion of a party from a market-are illegal per se under section 1 of the Sherman Act. Thus, questions concerning the justification for the boycott or the significance of the offender's market position do not arise.

Managerial Problems Of The Enterprise, Douglas C. Basil

Vanderbilt Law Review

The small firm, particularly the newly formed one, is confronted with problems ranging from the shortage of capital to the legal intricacies of organizational form. The technical obstacle of raising capital, obtaining sales outlets, and purchasing equipment must be surmounted. In the final analysis, however, the success of a small business depends upon the managerial ability of its owner.' The purpose of this article is to identify a few of the major management problems of the small enterprise and suggest appropriate solutions. One continuous difficulty is the structuring of the organization. At what point should staff specialization occur? What are …