Racist Antitrust, Antiracist Antitrust

eroG .v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors

Estimating the Holdout Problem in Land Assembly

Well over a century ago, legal and policy analysts realized that the days of purely individual action in matters of business and labor were over, and that legal rules must adapt to the social and economic power of large corporations. Among the rules that changed were archaic limitations on joinder of claims and parties in litigation and laissez faire “liberty of contract” doctrines invalidating labor legislation. Recently, lawyers representing large corporate employers have urged a revival of old rules limiting class actions and labor rights. But, as this Article will show, it is not at all clear that their clients will benefit from the legal regime the lawyers have created. As long as employers have large workforces working under uniform policies, they will face dozens or hundreds of similar claims challenging pay practices, discrimination, and harassment. Group adjudication arose to address efficiently the many similar claims that arise when large institutions adopt uniform policies. Individual arbitration of such claims may result in fewer claims being filed, especially if confidentiality provisions keep co-workers from learning from each other about how to assert successful claims. But unless or until employers figure out a way to shift all the costs of dispute resolution onto the claimaints (and thus far courts have resisted such efforts), and to silence all claimants and their lawyers, employers will face many similar claims, will be paying part or all of the costs of lots of identical arbitrations, and will be paying lawyers to handle them separately rather than on a classwide basis.The National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (“the Board”) has long held that protected activity includes asserting claims in courts, agencies, and in arbitration. In D.R. Horton, the Board found the NLRA to prohibit enforcement of an employer-imposed requirement that employees waive their right to bring a collective action challenging their working conditions. On petition for review, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the Board’s determination, holding that the Federal Arbitration Act (FAA) requires enforcement of the mandatory arbitration agreement, including its class action waiver.This Article explains why collective action waivers or requirements to arbitrate individually are unenforceable under the National Labor Relations Act and the Norris LaGuardia Act. The Article also explains why arbitration agreements requiring claims to be brought by individuals are not covered by the Supreme Court’s reasoning in Concepcion and Italian Colors to the extent they prohibit joinder of fewer parties than would be required to bring a large class action and, therefore, remain protected by labor law. The Article notes the inconsistency in the FAA cases about whether agreements can waive the right to file charges with some agencies and courts rather than others and therefore critiques the Fifth Circuit’s ruling that the FAA trumps the employees’ rights under NLRA sections 7 and 8(a)(1) to file group actions in court or arbitration but does not trump section 8(a)(4), which protects the right to file unfair labor practice charges. Finally, the Article raises some questions about the practical wisdom of the courts’ willingness to allow employers to require employees to pursue claims only as individuals. State and federal courts universally allow liberal joinder of plaintiffs and defendants because it is more efficient and avoids some truly thorny issues about the preclusive effect of judgments. The Fifth Circuit majority’s assumption, like the Supreme Court majority’s in Concepcion, that individual determination of claims is better suited to arbitration is simply wrong in many cases. Unless employers can opt out of the usual rules for the binding effects of judgments and the usual rules for joinder of claims and parties, the notion that individual arbitration is superior for everyone (including employers) is simply wrong.

This Comment will review the history pertaining to the role real property plays in Indian law policy and address the impact of recent Supreme Court decisions on the ability of tribes to put land into trust. Part II describes the history of the law governing Indian land up to, and including, the Marshall Trilogy, and explains the relative concept of tribal sovereignty. Part III reviews statutes governing Indian land after the Marshall Trilogy, and details the legal history around the Indian Reorganization Act. Part IV of this Comment explores how the Supreme Court’s recent decisions have impacted the Indian land-into-trust process and explains the specific problems created by Carcieri and Patchak. Part V considers the proposed solutions to this impact, including legislative bills introduced since Carcieri, and suggests that the best solution to the uncertainty caused by Carcieri and Patchak, is for Congress to pass new legislation that reaffirms the Secretary’s authority and expressly secures the land, once placed in trust, from future litigation.

Merges: Back to the Shadows, or Onward and Upward? Current Trends in Patent Law

Lincoln and Chief Justice Taney JAMES F. SIMON* Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men’s roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay. The first meeting of Lincoln and Taney probably took place when Lincoln made his only argument before the Supreme Court of the United States in March 1849. It occurred shortly before he had completed his single— and, to Lincoln, very disappointing—term as a member ofthe U.S. House ofRepresentatives. At that time, he felt that he had made no signif­ icant mark in his two-year congressional term and was resigned to returning to Springfield to resume his full-time law practice.1 In his Supreme Court argument, Lincoln represented the estate of an Illinois resident, Matthew Broadwell, who in 1819 had sold a parcel ofland in Ohio to a man named William Lewis. The problem, Lewis later discovered, was that Broadwell did not own the land. After the rightful owner ejected Lewis from his land in 1825, Lewis sued Broadwell for damages.2 In his Supreme Court argument, Lincoln did not dispute that Broadwell had sold Lewis land that he did not own. He argued only that by the time Lewis sued, the statute of limi­ tations had run, so Lewis could not lawfully collect from Broadwell’s estate. It came down to a legal question of statutory interpretation. Lincoln lost the case, and ChiefJustice Taney wrote the majority opinion rejecting his argu­ ment.3 It was the first time that Lincoln and ChiefJustice Taney disagreed in a dispute be­ fore the Supreme Court, but it would not be the last. When Lincoln presented his argument in the Lewis case, the Justices of the Supreme Court did not sit in the current magnificent courtroom— or any other. In fact, they listened to Lincoln’s argument in a room in the base­ ment of the Capitol building. One member of the Court, Justice John Catron of Tennessee, later blamed the dark, dank basement quarters for the bad health of many ofthe Justices.4 We have no physical description of Lincoln when he argued the Lewis case 226 JOURNAL OF SUPREME COURT HISTORY Lincoln argued one case before the Supreme Court, Lewis v. Lewis, in 1849, a mundane land-sale dispute that received little attention. Lincoln was admitted to the Supreme Court Bar on March 7 on the motion of Washington attorney Alexander H. Lawrence, who argued the case that day. As co-counsel, Lincoln made the concluding remarks the following day in what is now the refurbished Old Senate Chamber. before Chief Justice Taney and his Brethren. But thanks to photographs and contemporary accounts, we know that Lincoln was very tall—about 6'4"—and thin and spoke in a high, slightly shrill voice. His success as a trial lawyer was by then well established. He spoke plainly and effectively to bothjuries and judges.5 In his Supreme Court brief, Lincoln ap­ pealed to what he termed “the dictate of com­ mon sense,” which, he added, “seems to be the perfection of reason.” In urging the Court to adopt his statutory interpretation, Lincoln asked the Justices to draw their conclusions, in his words, “without any metaphysical or hair splitting distinctions.”6 When Taney heard Lincoln’s oral argu­ ment, the ChiefJustice was seventy-two years old, thirty-two years older than Lincoln. Like Lincoln, Taney was tall and thin. But unlike the Illinois lawyer, Taney never possessed Lin­ coln’s physical vigor. Since Taney had been a young lawyer in Maryland, he regularly com­ plained that the stress of his work threat­ ened his health. His complaints were con­ stant, and so was his success as a trial lawyer and as the state’s attorney general. Later, he served President Andrew Jackson as U.S. At­ torney General and Secretary of the Treasury and shared Jackson’s aversion to vested cor­ porate interests. Taney, like President Jackson , was an avowed...

In the 1976 case of Liswaniso v The People, the Zambian Supreme Court held that illegally obtained evidence is admissible as long as it is relevant. Since then, unsuccessful attempts have been made to convince the Supreme Court and the High Court to reconsider this position, especially when the evidence in question has been obtained in violation of a right in the Bill of Rights. Recent decisions from the Supreme Court show that the court is unlikely to change its position on this issue. In this article, the author suggests ways in which the Supreme Court could relax, without necessarily overruling, its rule in the Liswaniso when dealing with evidence obtained through violating human rights.

SHE RECOGNITION that we need to look beyond the Supreme Court in order to obtain a realistic understanding of the American judicial system is not new. In the 1950s Jack Peltason' and Walter Murphy2 conceptualized this system in terms of a bureaucratic structure in which the Supreme Court, much like any high level decision-maker, faces a problem of achieving acceptance of and compliance with its decisions by lower level officials under its jurisdiction. While this approach has been utilized in research on the lower federal courts,3 it has not been generally applied to state courts. Rather the work on state courts has been limited to individual courts or comparisons of a small number of state courts without regard for their relationship to the Supreme Court.4 Paralleling this development, there has been a growing concern with the analysis of the impact of Supreme Court decisions, a concern with the effect of these decisions on the institutions and the problems to which they are directed. Despite the large number of impact studies that have been produced to date, however, state supreme courts have been largely ignored.5 This omission is particularly unfortunate in the field of criminal procedure, an area in which the Supreme Court has been attempting to institute fundamental changes at the trial court level. State supreme courts are of vital significance in this area for they interpret Supreme Court decisions and apply them within their own states. In this capacity the state supreme courts serve as a mediating force between the Supreme Court and its decisions at the national level and the trial courts, which are subject to local pressures that often run counter to the decisions of the Supreme Court. If changes in criminal procedure are to be meaningful at

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties. The Supreme Court, when it rendered its decision, seemed to be rectifying a bottleneck in Superfund remediation of hazardous waste. However, in the decade since this Supreme Court decision, several federal trial and circuit courts have circumvented the Supreme Court command. This article illustrates how the lower federal courts have done this without violating Article III of the Constitution, by re-defining a one-word term. The practical impact has been chaos in hazardous substance remediation across the U.S., affecting an estimated 600,000 contaminated waste sites. There are huge dollar impacts: addressing the 350,000 remaining contaminated sites in the U.S. would cost up to one-quarter trillion dollars, or an expenditure of $6-8 billion annually. This Article analyzes how the lower federal courts have circumvented the Supreme Court decisions, with particular focus on decisions and legal prestidigitation in the most recent four years. This lower court inversion of the law is without much basis in law, and resurrects exactly what the Supreme Court thought it had overruled unanimously. What transpired in enforcement in the lower courts is not what the Supreme Court’s opinion contemplated. This Article examines the method by which the lower federal courts have created an ongoing legal mechanism to circumvent the most important Supreme Court holding in a critical area of the economy.

Prophylactic Merger Policy

The Federal Public Trust Doctrine: A Law Professors' Amicus Brief

Hosanna-Tabor and the Exaggerated Decline of Separationism

Federal Question Jurisdiction: The Compass, the Maze and the Trap

PurposeThe purpose of this paper is to examine the impact the US Supreme Court's Tellabs decision has had on Section 10 (b) cases generally and on cases related to subprime mortgage‐backed securities.Design/methodology/approachThe paper provides background including provisions of Section 10(b) of the Securities Exchange Act of 1934 and the Private Securities Litigation Reform Act (PSLRA) of 1995. Analyzes the decision in Tellabs, Inc. v. Makor Issue & Rights, Ltd, recent decisions since Tellabs by the the Second, Seventh, and Ninth Circuits, and decisions in two recent subprime securities cases in which defendants moved to dismiss pursuant to Tellabs; and draws preliminary conclusions from cases that have applied Tellabs so far.FindingsThe PSLRA raised the bar for pleading scienter by requiring a “strong inference”, but the courts of appeals have differed in applying the standard. The Tellabs decision asserted that the PSLRA requires consideration of competing inferences in determination of whether scienter is adequately pleaded. The Supreme Court's “prescription” said the inference of scienter must be more than merely “reasonable” or “permissible”; it must seem to a reasonable person to be at least as cogent and compelling as any opposing inference. One lesson of Tellabs and the Seventh Circuit's decision on remand is that the “plausibility” of scienter allegations requires a fact‐specific inquiry. The Ninth Circuit court found that “deliberate recklessness” is sufficient to allege scienter. In one of the subprime cases, In re 2007 Novastar Financial, Inc., a district court found that a deterioration of a company's business was not evidence of wrongdoing. It is difficult – and premature – to draw firm conclusions from cases that have applied Tellabs so far, but requiring courts to consider competing inferences, requiring the pleadings in question to satisfy more “adjectives”, and requiring the “weighing” of inferences at the pleadings stage would all appear to help defendants. However, Tellabs could help plaintiffs by reversing previous practice in which a “tie” between competing inferences automatically resulted in a victory for the defendant.Originality/valueThe paper offers practical guidance by experienced securities lawyers.

For the first time, in two recent decisions, the Italian Supreme Court has provided its view on the inheritance and gift tax regime applicable to trusts. The interpretation provided is in line with the previous guidance released by the Italian tax authorities as from 2007, but conflicts with previous lower court case law: according to the Supreme Court, any deeds through which assets are contributed to a trust are subject to gift tax upon such transfer rather than at a later stage, when the trust assets are distributed to the beneficiaries of the trust.