The Role of Section 2 of the Sherman Act in International Patent Fraud: “Walk Softly and Carry a Big Stick”

This Article analyzes the monopolistic implications of Mannington Mills and considers the point at which international patent fraud may be determined unlawful monopolization or an unlawful attempt to monopolize

Simplifying the Choice of Forum: A Response to Professor Clermont and Professor Eisenberg

Every now and again, an article appears that provides new insights into a familiar topic. The recent Cornell Law Review article by Professor Kevin M. Clermont and Professor Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, is such a rare article. In defending current transfer practice under section 1404(a) of the Federal Judiciary Code, Professor Clermont and Professor Eisenberg present a wealth of empirical data. Their findings provide valuable information not only about transfer practice in federal civil cases, but also about forum selection in the federal courts. Professor Clermont and Professor Eisenberg have written a clear and original article. And I disagree with almost all of their conclusions. I disagree with Professor Clermont and Professor Eisenberg on the following points. First, by including cases where courts have entered default judgments, Professor Clermont and Professor Eisenberg exaggerate the effect, if any, that the choice of forum has on the outcome of a case. Second, Professor Clermont and Professor Eisenberg do not demonstrate that transfers lead to more accurate outcomes. Instead, their data only supports the conclusion that a defendant\u27s chance of winning a case improves if the defendant has selected the forum through a transfer motion. Third, Professor Clermont and Professor Eisenberg understate the costs of transfer under the open-ended standard currently employed in section 1404(a) litigation. Fourth, if Professor Clermont and Professor Eisenberg are correct that forum shopping is both pervasive and effects outcomes, Congress or the courts should address this problem directly by limiting the geographic choices available to a plaintiff who files a federal court suit. Such an approach would address any inequities resulting from forum shopping far more universally and efficiently than the case-by-case transfers currently employed under section 1404(a)

An Original Misunderstanding: Akhil Amar and Fourth Amendment

The Supreme Court\u27s modern Fourth Amendment decisions rely on two central assumptions about the original understanding of the amendment. First, the Court and most modern commentators have presumed that the Fourth Amendment prefers searches and seizures pursuant to a specific warrant. Second, even where law enforcement activities do not require a warrant, the Court has presumed that the Fourth Amendment imposes a global reasonableness requirement on all searches and seizures. In a series of influential writings, Professor Akhil Amar has advocated a restructuring of Fourth Amendment law, based on a very different account of Fourth Amendment history. Professor Amar writes that the Fourth Amendment was enacted to limit warrants. According to Professor Amar, the framers viewed warrants as dangerous, because a warrant would provide a defense to law enforcement officers in a trespass damages action. Rather than imposing a warrant preference rule, Professor Amar asserts that the Fourth Amendment imposes a global reasonableness requirement on all searches and seizures. This article concludes that Professor Amar\u27s account receives little support from historical sources. Contrary to Professor Amar\u27s assertion, the framers did not believe that all warrants were dangerous. The framers actually intended that law enforcement officers must obtain a specific warrant before entering a house. Nor does the historical record support Professor Amar\u27s claim that the Fourth Amendment imposed a global reasonableness requirement on all searches and seizures. For example, the Fourth Amendment was not even mentioned in early federal ship seizure cases. The real Fourth Amendment envisioned by the framers was actually a narrow document - much less sweeping in scope than either the traditional account or Professor Amar\u27s understanding of history. The framers were focused on a single, narrow problem - unlawful physical invasions of houses by government agents. The Fourth Amendment was enacted to address this problem with a precise, bright-line rule. Before entering a house, law enforcement officers typically would need to obtain a specific warrant. But what about searches or seizures that did not involve a physical entry into a house? Outside of house searches, the Fourth Amendment was simply inapplicable