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David V. Snyder
This paper considers how promissory estoppel jobs are undertaken in two jurisdictions that ought not to need promissory estoppel. The purpose is to achieve a better understanding of systematic decisions to enforce promises and to discover the doctrinal combinations possible in mixed Civil Law/Common Law jurisdictions. This bilateral comparison allows an examination of the different philosophical and moral bases for according promises legal force, whether founded on contract and will or on delict and injury. The differing functions of formalities are also discussed. More particularly, Scotland does not have promissory estoppel but has a remarkable doctrine allowing the enforceability even of unilateral, gratuitous promises. In addition, the Scots law of personal bar, which is similar to estoppel and waiver, fulfills other jobs associated with promissory estoppel. Louisiana, on the other hand, long claimed to reject promissory estoppel but then reversed course and adopted the doctrine about twenty-five years ago. The comparison of these two legal systems affords an opportunity to observe the doctrinal mixes and philosophical choices that have long drawn comparative law scholars to mixed jurisdictions. It also reveals the roles that promissory estoppel can play and how it is not entirely tethered to the problems of the consideration doctrine.
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Robert Vaughn
The author describes recent post-employment provisions that restrict lobbying activities to influence the federal government by former employees of the executive and legislative branches of the federal government. These regulations implement the reforms intended by passage of the Honest Leadership and Open Government Act of 2007, as well as President Obama's Executive Order on Ethics Commitments by Executive Branch Personnel, issued on January 21, 2009. The provisions affect many lobbying activities, including attempts to influence executive policy. For example, the restrictions seek to prevent high-ranking former employees from using the information and contacts that they acquired during periods of government service to benefit private interests. Extensive lobbying creates an appearance that favors may be exchanged between private citizens and public officials. Post-employment restrictions on the executive branch reflect concerns about a "revolving door," through which, on the one hand, government regulators leave to work directly for regulated entities or to represent their interests and, on the other hand, employees of regulated interests become employees of the relevant regulatory agencies. The first sections of the chapter examine restrictions on the activities of former executive branch employees by moving from more general to more specific regulations. Enforcement of these provisions may involve criminal sanctions, civil penalties, and, in some instances, administrative action. Recent restrictions on the lobbying activities of the legislative branch - Members, officers, and higher-paid staff of the Congress - reflect themes similar to those supporting executive branch restrictions. The final section of the chapter addresses these restrictions, including the changes introduced by the Honest Leadership and Open Government Act of 2007 (HLOGA).
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Richard J. Wilson
This paper arose from a presentation at the McCoubrey Centre for International Law at Hull University in the United Kingdom, at a conference on "Law and Security, Post 9/11". The conference took place in February of 2005 and represents reflections on the author’s personal experience in the representation of Omar Khadr, a Canadian citizen who was captured by U.S. and Northern Alliance forces near Khost, Afghanistan, in July, 2002. He was held at Bagram Air Force Base for several months, and transferred to Guantanamo Bay, where he has been held ever since. He was 15 years old at the time of his capture. The article discusses who was at Guantanamo as of the date of its writing, why the U.S. government's detention policy unfolded the way it did, who the client was, and what the ideal outcome of his case would be.
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Jonathan Baker
This chapter discusses the FTC’s court challenge, in 2001, to the proposed merger of two baby food producers, Heinz and Beech-Nut. The chapter describes the economic issues at stake in the litigation, with a particular focus on the possibility that efficiencies could justify a merger in an industry in which post-merger concentration would be high.
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Jonathan Baker
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. The authors document this shift and provide examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. The authors show using merger enforcement data and a survey conducted of merger practitioners that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. The authors then argue in favor of reinvigorating horizontal merger enforcement by partially restoring the structural presumption and by requiring strong evidence to overcome the government’s prima facie case. The authors propose several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated vs. unilateral anti-competitive effects.
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Jonathan Baker
This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of US firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare--particularly in deterring the harms from anticompetitive conduct across the economy--appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.
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Jonathan B. Baker
Antitrust law has long been concerned that the loss of a firm, through merger or exclusion, may improve the prospects for tacit or express collusion in a concentrated market. In merger law, this perspective has been codified as a presumption of anticompetitive effect arising from high and increasing market concentration. Antitrust law’s structural presumption has been eroding in the courts, however, in part because its economic underpinnings increasingly are seen as unsettled. This article explains how coordinated competitive effects analysis can be reconstructed around the role of a maverick firm that constrains prices when industry coordination is incomplete. Providing this explanation helps distinguish precompetitive mergers from anticompetitive ones, and may aid in the analysis of alleged exclusion. It also provides a new economic justification for the structural presumption and points toward a continuing role for that presumption when the maverick cannot be identified or when it is not possible to determine the effect of a merger on the maverick’s incentives. The resulting approach to coordinated competitive effects analysis is illustrated with an extended example involving oligopoly conduct in the US passenger airline industry.
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Jonathan Baker and Timothy F. Bresnahan
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Daniel Bradlow
The Reconciliation and Development Project (R&D Bonds) was originally conceived as an attempt to involve the South African expatriate community in the process of national reconciliation that began with the end of apartheid. It has evolved into a broader effort to create a financial instrument capable of raising financing from both expatriates and the domestic market for small scale revenue generating development projects that will produce jobs, services, and opportunities for poor and historically disadvantaged South Africans. Through this evolution, it has become clear that the project, which if implemented will be unprecedented, has the potential to teach some interesting and generally applicable lessons on the roles that private financial markets can play in attracting both domestic and international funding for sub-commercial development projects and in promoting reconciliation in post-conflict societies. The chapter is divided into three sections. The first section describes the genesis of the R&D Bonds Project. The second discusses the design of the R&D Bonds. The final section highlights some of the interesting development financing issues that arise from the project.
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Angela J. Davis
This chapter focuses on the trial story behind the high profile case of People v. Orenthal James Simpson. As the author points out, the Simpson case focused attention on some of the most important issues in the criminal justice system, including class and race disparities, DNA evidence, and police perjury. The author here focuses on the issue of race--its significance in the trial and how it affected the advocacy of the lawyers. She discusses the emotional conflicts over race within the defense and prosecution teams and compares and contrasts the approaches that each side ultimately decided to take. The author examines how race affected the choice of lawyers, venue and jury selection, the direct and cross-examination of the trials most controversial witness, and the closing arguments. She suggests that the strategic decisions about race made by both sides may have largely determined the outcome of the case.
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N. Jeremi Duru
The National Football League (the "NFL" or the "League"), like the National Basketball Association (the "NBA") and Major League Baseball ("MLB"), has a long history of racial exclusion.' And like these other long standing American professional sports leagues, desegregation among players preceded desegregation among coaches. As slowly increasing numbers of minorities assumed NBA head coaching positions and MLB managing positions toward the end of the twentieth century, however, minority NFL coaches were less likely to receive head coaching opportunities than their basketball and baseball counterparts. Indeed, as of 2002, only two of the NFL's thirty-two head coaches were minorities, and only five, including those two, had held head coaching positions during the League's modem era. Four years later, however, the NFL had more than tripled its number of minority head coaches and shone as a model for other athletic institutions seeking to provide head coaching candidates equal employment opportunities. This article seeks to explore the history of racial exclusion in the NFL, the particular barriers minority coaches seeking NFL head coaching positions have faced, and the effort to level the playing field for such coaches. Part I of this article traces the NFL's initial expulsion of African Americans, its eventual reintegration, and the patterns accompanying that reintegration. Part I1 explores the travails of the NFL's first three post-reintegration coaches of color as well as statistical evidence revealing that, as of 2002, NFL coaches of color generally suffered inferior opportunities despite exhibiting outstanding performance. Part III examines the campaign launched by attorneys Cyrus Mehri and Johnnie L. Cochran, Jr. to alter NFL teams' hiring practices, the creation of the Rooney Rule (the "Rule"), and the birth of the Fritz Pollard Alliance of minority coaches, scouts, and front office personnel in the NFL. Finally, Part IV traces the Rooney Rule's success in creating equal opportunity for coaches of color in the NFL.
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Susan Franck
International investment and international investment agreements have experienced a particular level of growth in the past few decades. With that growth and the granting of affirmative dispute resolution rights to foreign investors, international investment conflict has become increasingly highlighted; and one particular methodology - namely investment treaty arbitration - has become particularly visible. Reliance on this single option for resolving conflict has a unique set of systemic implications. This chapter therefore takes a more systemic look at investment treaty conflict and, in an effort to provide an appropriate historical and doctrinal framework, approaches to dispute resolution broadly. It asks for a reconsideration of Appropriate Dispute Resolution (ADR) methods for resolving investment treaty conflict and highlights the costs and benefits of particularized dispute resolution methods, including preventative, negotiated, facilitated, fact-finding, advisory and imposed ADR mechanisms. The chapter ultimately argues that, while arbitration has utility, the challenge for the future will be to move beyond investment treaty arbitration to a more holistic approach to conflict management that considers other opportunities, particularly the collaborative design of sustainable dispute resolution systems.
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Susan Franck
This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.
Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis is on the question of an appellate body for international investment disputes. The authors also seek ways to streamline and improve the system, channeling the benefits of free trade and investment flows to people in both the developing and emerging markets. The Appendices provide readers with extensive background material to place the chapters into context. Selected sections include concise commentaries to further illuminate the timely themes covered by the chapters. The volume is singular in its success at bringing together so many exceptional individuals on a question of growing import-how to improve the international law regime to increase prosperity and further global development. If a reader wants to know what the influential voices in international law are saying right now, and in a concise and readable format, this is the publication to have. -
Susan Franck, Karl P. Sauvant, Michael Chiswick-Patterson, Rainer Geiger, José E. Alvarez, M. Sornarajah, Patrick Juillard, Jeswald W. Salacuse, Giorgio Sacerdoti, Anna Joubin-Bret, Hugo Perezcano Díaz, Michael K. Tracton, Christoph Schreuer, Howard Mann, Katia Yannaca-Small, Barton Legum, Jan Paulsson, Asif H. Qureshi, Shandana Gulzar Khan, Christopher Brummer, and Brian J. Rapier
This volume brings together significant contributions from leading voices in academia, the legal profession and government on the increasingly important topic of international investment and the legal system in which it operates. With the burgeoning size of international capital flows matched only by an explosion in international agreements intending to regulate the field, there is increasing potential for incoherence amongst and between treaties and arbitral decisions.
Appeals Mechanism in International Investment Disputes compiles, compares and contrasts the analysis and arguments of the leading scholars, practitioners and government officials on the future of the international investment law regime. Its special emphasis is on the question of an appellate body for international investment disputes. The authors also seek ways to streamline and improve the system, channeling the benefits of free trade and investment flows to people in both the developing and emerging markets. The Appendices provide readers with extensive background material to place the chapters into context. Selected sections include concise commentaries to further illuminate the timely themes covered by the chapters. The volume is singular in its success at bringing together so many exceptional individuals on a question of growing import-how to improve the international law regime to increase prosperity and further global development. If a reader wants to know what the influential voices in international law are saying right now, and in a concise and readable format, this is the publication to have. -
Claudio Grossman
The author argues that a continued focus by the US legal education establishment on standard courses that remain inextricably attached to an autonomous domestic system is inadequate to prepare lawyers for the new interconnected world reality. All legal issues now have both international and domestic features, in the sense that they influence or are influenced by developments in both the domestic and international arenas. In the author’s proposed model, new skills would be identified, social change and awareness would be emphasized, and a cross-cultural perspective would be sought. This can be done by establishing links between the study of domestic and international law through weaving international law concepts into courses considered domestic; by focusing on the different types of legal systems and cultures--common law, civil law, religious law, and customary law--that exist around the world; and by incorporating into the academic agenda an understanding of how culture affects the action of individuals and their relationship with a legal system. By shifting emphasis in these ways the law school curriculum would create a more open and forward-looking legal education that truly participates in the wider world in which law graduates will have to engage.
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David Hunter
The author begins this chapter with a description of then-current (2007-2008) U. S. climate policy as it related to international relations and negotiations in the wake of the Bush Administration’s rejection of the Kyoto Protocol. Acknowledging that future U.S. negotiating positions would depend significantly on the outcome of the 2008 presidential election, he briefly reviews the platforms of the leading U.S. presidential candidates before turning to federal domestic policy. Summarizing the Bush initiatives to tie greenhouse gas (GHG) emissions to economic output and to reduce emissions by voluntary measures, he also discusses the first U.S. Supreme Court case to address climate change, Massachusetts v. EPA (549 U.S. 497, 2007), wherein the high court chided the EPA for ignoring its statutory obligation to execute the Clean Air Act, while refusing to take a stand on whether greenhouse gases cause or contribute to climate change. The author reviews legislation that was then making its way through the 110th Congress, such as Senator Waxman’s Safe Climate Act, and goes on to analyze activities at the sub-national level that collectively had a major impact on U.S. climate policy. The author concludes the chapter by identifying some of the implications of future U.S. climate policy, expected to be more robust post-Bush, for Canada and Canadian climate policy.
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Candace Saari Kovacic-Fleischer
This chapter describes the difficulty that the US has had in passing social legislation by viewing it through the changing attitudes of US Supreme Court justices toward employment legislation during five defining eras in the twentieth century: laissez-faire economics and wage and hour legislation, 1905-1941; President Franklin D. Roosevelt’s New Deal Social Security Act, 1935-1937; World War II, 1940-1948; the Civil Rights and Women’s movements, 1963-1978; and the Family and Medical Leave Act of 1993. The US has expanded its view of government’s role in the private workplace over time, though not nearly as quickly as has Europe. The author shows that this lagging behind may be explained in part by America’s long tradition of opposing government power, particularly Federal power, and, in the case of maternity leave, by unhelpful attitudes toward women in the workplace, both of which have stifled social engineering initiatives in the United States.
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Diane Orentlicher
In this essay the author addresses several issues raised by emerging trends in the use of universal jurisdiction. She argues that recent developments raise concerns about how jurisdictional authority should be allocated among states as well as between officials of states and officers of international tribunals. Growing recourse to universal jurisdiction raises questions about whose claim should receive priority when more than one court seeks to prosecute an individual for the same crime. The question has been further complicated by the emergence of a new breed of court, such as the Special Court for Sierra Leone, which is shaped by negotiations that reflect political contexts. These courts, fashioned out of international and national elements, present an alternative to familiar fora for prosecution and re-invigorate incountry justice. Recent developments also present a new variant on the familiar punish-or-pardon quandary: if a nation afflicted by mass atrocities forgoes punishment in the name of national reconciliation, how should other authorities that can prosecute the perpetrators take account of the domestic policy? Since it is now possible to suppose that several courts might assert jurisdiction with respect to the same crime, the author contends that the legal community needs to forge principled rules for reconciling the claims of multiple communities—national, transnational, and international.
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Jamin B. Raskin
In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. To resolve the case, the Court grappled with two key questions. The first was whether the debate on a state-controlled station constituted a 'public forum' for First Amendment purposes, and, second, whether the exclusion of Ralph Forbes from the debate constituted 'viewpoint discrimination.' The Court determined that the debate was a 'nonpublic' forum. The majority also saw no viewpoint discrimination in Forbes’s exclusion. Justice Kennedy, who authored the majority opinion, was principally moved by the trial jury’s finding that Forbes was rejected as a participant by the debate managers not because they disliked his politics but because they correctly deemed his candidacy to be 'not viable.' Thus, the AETC’s exclusion of Forbes was not political viewpoint discrimination but a 'reasonable, viewpoint neutral exercise of its journalistic discretion.' In his dissent, Jamin Raskin concludes that the Court decided both of these questions erroneously and that the Court should have found that Arkansas was required to permit Forbes, a balloted candidate who had nearly become lieutenant governor in the prior election, to participate in the debate.
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Richard S. Ugelow
In this chapter the author reviews the enforcement scheme behind Title VII of the Civil Rights Act of 1964 and uses experience gleaned from a 29-year career as a senior trial attorney and deputy section chief in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice (DOJ) to provide an overview of how the DOJ used its enforcement authority during those years. When the DOJ files a Title VII suit it sues in the name of the United States of America, an action which makes the US “the client” and which has significant consequences for the manner in which litigation is conducted and the type of remedial relief sought. Most often, the United States government pursues systemic changes to the employer’s practices, while the individual charging party seeks individualized relief. The author explains the difference between disparate treatment and disparate impact theories in Title VII liability. Under the disparate treatment theory, the plaintiff has the burden to demonstrate by a preponderance of evidence that the alleged discriminatory conduct was intentional or purposeful. In contrast, the disparate impact theory focuses on the effects of the employment practice or the criteria on which the employment decision is based. Of the two, the latter method is more complex and expensive, and so it usually falls to DOJ rather than private individuals to pursue these cases. In this chapter, the author describes the DOJ’s entry into a lawsuit (United States v. City of Buffalo, 457 F. Supp. 612, 1978) wherein a woman sued the Buffalo, New York Fire Department because of discriminatory employment practices. The litigation, which involved both disparate treatment and disparate impact, illustrates the practical and legal issues the Justice Department addressed in seeking to have women employed as firefighters.
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Padideh Ala'i
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Jonathan B. Baker and Robert Pitofsky
This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC's successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.
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Michael W. Carroll
Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law that will grow in importance in the coming years.
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