Corporate Compliance and the Antitrust Agencies’ Bi-Modal Penalties

Calkins discusses individual compared with entity penalties as tools for encouraging corporate law compliance and comments on the relationship between monetary payments as compensation and deterrence

Do Pigs Need Wings? Introductory Thoughts on Law Reviews, Errors, and the Coase Theorem

Ever since shepherd children stumbled upon the Dead Sea Scrolls, a small group of scholars controlled access to these writings. These scholars painstakingly edited and published so far about half the historic texts. Scholars not numbered among the select few complained of the arrogance implicit in limiting access to the original materials. Now the critics have their chance. In late 1991 the Biblical Archaeology Society published a facsimile edition of the previously unpublished scrolls. Professor Robert H. Eisenman, coeditor of the new edition, boasted that this was \u27the last stage in breaking the monopoly\u27 of authorized editors over the scroll texts. One of those authorized editors responded that it would be \u27presumably immoral and unethical\u27 for scholars to work with the newly released texts until he and his colleagues had translated them. He forecast shoddy research. Professor Eisenman was unconcerned: Now we can let free competition determine what the best scholarship is

Antitrust Modernization: Looking Backwards

Once again a national commission is attempting to address problems in antitrust law and enforcement. At this writing, the Antitrust Modernization Commission (AMC) is well underway. The AMC has identified 25 issues for study, and is receiving comments and holding hearings. This brief Article looks backward at previous efforts to use commissions to improve antitrust. It reviews those efforts, evaluates the results, and provides some lessons (and cautions) for other modernizers

The October 1992 Supreme Court Term and Antitrust: More Objectivity Than Ever

Time and again the Rehnquist Court has favored antitrust certainty. When faced with a choice between achieving individualized justice and adhering to relatively clear, generalized rules, it has usually chosen the latter. The certainty of objective evidence has been preferred to the more customized resort to subjective evidence. This pattern continued during the 1992-93 term. Perceived objectivity through generalized rules triumphed in the term\u27s four antitrust cases, Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., Spectrum Sports, Inc. v. McQuillan, Hartford Fire Insurance Co. v. California, and Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. This article will discuss each case in turn. It will be seen that especially in terms of the litigation process at the Court and the quality of the decisions, it was an unsatisfying antitrust year

Developments in Antitrust and the First Amendment: The Disaggregation of \u3cem\u3eNoerr\u3c/em\u3e

A legal doctrine conceived in ambiguity seldom achieves clarity with the passage of time. Such had been the experience with the Noerr-Penningon doctrine, the principal focus of this article. In its first Noerr-Pennington decision in 16 years, Allied Tube & Conduit Corp. v. Indian Head, Inc., the Supreme Court created new uncertainties. However, it also offered hope for resolution of some of the inconsistencies that have plagued the doctrine. It did this by distinguishing sharply between harm caused directly by petitioning activity (for which petitioners may be liable), and harm caused by requested government action (for which petitioners may not), and by recasting the sham exception as being narrower and less important than some courts had held. Whether Allied Tube will eventually lead Noerr-Pennington out of its quagmire remains to be seen. This article will discuss Allied Tube, most of the recent Noerr-Pennington developments, and, for the issues raised by these developments, the implications of the Supreme Court\u27s opinion. In addition, the paper will briefly consider two recent cases that struggle with the tension between competition policy and the first amendment, even though their outcomes did not turn on Noerr. In Superior Court Trial Lawyers Association v. Federal Trade Commission, the D.C. Circuit rebuffed an FTC challenge to a publicized strike by the attorneys who regularly accept court appointments to represent indigent defendants. The court ruled that the first amendment might protect the challenged activity even though Noerr did not. The second case, Michigan Citizens for an Independent Press v. Attorney General of the United States, interprets the Newspaper Preservation Act. That Act embodies a congressional balancing of concerns about concentration and the preservation of diverse reportorial and editorial voices. On August 8, 1988, Attorney General Meese issued a troubling decision applying that Act and approving a proposed Joint Operating Arrangement (JOA) between The Detroit News and the Detroit Free Press. A subsequent challenge to that opinion has been rejected by a district court and, as of this writing, is on appeal