CategoryPrint

The prevailing test for predation under section 2 of the Sherman Act is the Areeda-Turner rule, which condemns pricing below a dominant firm's own average variable cost. This rule is both underinclusive and overinclusive, and is not generalizable to cases of nonprice predation. Alternative rules are also flawed. Those based on behavior do not address predation before the victim has been destroyed...

Contributing to a lively debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This approach breaks from the existing securities regulation framework to draw directly on insurance markets and insurance law. The author prescribes a framework to permit companies, on an...

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be...

The Supreme Court held in Grutter v. Bollinger that the attainment of a diverse student body could justify the use of race in admissions decisions in higher education. This decision did not, however, address whether student body diversity could justify race-conscious student assignment policies at the public primary and secondary school level. Several circuit courts dodged this issue prior to...

Police misconduct is a sadly recurring phenomenon in the United States, frequently commented upon by mass media, legislators, the courts, and legal scholars. Incremental steps have been taken to remedy persistent police misconduct, most notably and recently by Congress' passage of 42 U.S.C. § 14141. Section 14141 grants the Department of Justice (DOJ) the authority to pursue relief against law...

Pro bono has undergone a profound transformation. Whereas for most of American legal history, pro bono was ad hoc and individualized, dispensed informally as professional charity, within the last twenty-five years it has become centralized and streamlined, distributed through an elaborate institutional structure by private lawyers acting out of professional duty. Pro bono has thus emerged as the...

Twenty-five years have passed since courts first adopted “market share liability,” a theory under which a plaintiff unable to identify the manufacturer of the product that caused his injury can recover on a proportional basis from each manufacturer that might have made the product. Courts have severely restricted the reach of this potentially powerful theory by insisting that it can apply only to...

A debate continues to rage in the academy and on the U.S. Supreme Court about the propriety of originalism as a methodology of constitutional interpretation. In federalism cases both the majority and the dissent on the current Court appear to have embraced originalism, yet their agreement ends there: The Court has consistently divided 5–4 in such cases. What explains the disagreement among...

In this Comment, the author considers the popular critique of the Great Case of Johnson v. M’Intosh as racist myth-making. After unpacking Johnson’s uncomfortable marriage of conquest and discovery, Seifert juxtaposes the opinion with Virgil’s Aeneid, western literature’s most famous, and famously ambivalent, establishment narrative. This comparison compels a different theoretical approach to the...

Courts have regularly relied on the “special characteristics” of radio and television broadcasts to justify government regulation of the content in those media that has never been allowed for the print media. However, the convergence of media delivery platforms (print, broadcast, telephone, cable, and Internet) has put a severe strain on the viability of this medium-centric model for speech...

In the administration of a state or federal probation system, a criminal defendant who is placed on probation often signs a "consent-to-search" agreement. This agreement contains a clause in which the probationer consents to suspicionless, warrantless searches of his person and residence for the duration of his probationary term. Searches pursuant to these agreements have generated a number of...

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable because, when "civil courts undertake to resolve [doctrinal] controversies .... the hazards are ever present of inhibiting the free development of religious doctrine and of...

Since the tragedy of September 11, the federal government's actions have resulted in a serious erosion of liberties. In expanding authority for electronic eavesdropping and in claiming unprecedented authority to detain individuals without due process, the government has taken powers that previously have been limited to foreign intelligence gathering and activities in foreign countries and has...

In 1999, California enacted legislation allowing same-sex couples to register with the State as domestic partners. Although the new legal status initially entailed few legal rights or obligations, incremental 2001 legislation granted some significant legal rights of marriage to registered domestic partners. In 2003, the legislature acted again, extending almost all the state law incidents of...