scholarly journals Antitrust Arbitration and Merger Approval

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Supreme Court ◽  
Antitrust Law ◽  
Department Of Justice ◽  
Class Actions ◽  
Injunctive Relief ◽  
American Express ◽  
Antitrust Case ◽  
The Supreme Court ◽  
The Right ◽  
Appeals Process

In a string of recent opinions, the Supreme Court has made it harder forconsumers to avoid arbitration clauses, even when businesses strategicallyinsert provisions in them that effectively prevent consumers from beingable to bring any claim in any forum. In American Express Co. v. ItalianColors Restaurant, an antitrust case, the Court held that class-actionwaivers embedded in mandatory arbitration clauses were enforceable evenwhen they had the effect of making it economically irrational for thevictims of antitrust violations to pursue their claims.Courts have long considered antitrust claims to be too complex and tooimportant to trust to private arbitrators. By the 1980s, the Supreme Courtpermitted federal statutory rights, including antitrust claims, to bearbitrated so long as the plaintiffs could effectively vindicate theirrights in the alternative forum. In 2013, the Supreme Court in ItalianColors fundamentally weakened the Effective Vindication Doctrine when itheld that arbitration clauses that precluded class actions and classwidearbitration were enforceable even when they effectively prohibited allindividual plaintiffs from bringing a case.Arbitration differs from litigation in ways that harm the interests ofconsumer antitrust plaintiffs. For example, arbitration limits discoveryand has no meaningful appeals process. Furthermore, defendants use theterms in arbitration clauses to prevent class actions and to undercut thepro-plaintiff features of antitrust law, including mandatory trebledamages, meaningful injunctive relief, recovery of attorneys’ fees, and alengthy statute of limitations. With the Court’s undermining of theEffective Vindication Doctrine in Italian Colors, defendants’ efforts todismantle these pro-plaintiff components of antitrust law may prove moresuccessful in the future.The problems associated with antitrust arbitration are magnified inconcentrated markets. Supporters of enforcing arbitration clauses assumethat they these contractual provisions are the result of an informed,voluntary bargain. But when a market is dominated by a single supplier or asmall group of firms, consumers often find it impossible to purchase anecessary product while retaining the right to sue, especially sincearbitration clauses are generally embedded in contracts of adhesion. Thismeans that in the markets most likely to be affected by antitrustviolations, consumers are least likely to be able to avoid mandatoryarbitration clauses. Furthermore, when mergers result in concentratedmarkets, they can increase the problems explored in Part Two.Antitrust authorities can address the problem of proliferating arbitrationclauses. When evaluating mergers, officials at the Federal Trade Commissionand the Antitrust Division of the Department of Justice can threaten tochallenge the merger unless the merging parties agree to specifiedconditions, such as the divestiture of certain assets. Because thosemergers that pose the greatest risk of anticompetitive effects also magnifythe problems associated with mandatory arbitration clauses, antitrustofficials would be wise to condition merger approval on the mergingparties’ agreement to not require arbitration of antitrust claims.

scholarly journals Policy Levers Tailoring Patent Law to Biotechnology: Comparing European and US Approaches

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Supreme Court ◽  
Patent Law ◽  
Antitrust Law ◽  
Class Actions ◽  
Injunctive Relief ◽  
American Express ◽  
Antitrust Case ◽  
The Supreme Court ◽  
The Right ◽  
Appeals Process

In a string of recent opinions, the Supreme Court has made it harder forconsumers to avoid arbitration clauses, even when businesses strategicallyinsert provisions in them that effectively prevent consumers from beingable to bring any claim in any forum. In American Express Co. v. ItalianColors Restaurant, an antitrust case, the Court held that class-actionwaivers embedded in mandatory arbitration clauses were enforceable evenwhen they had the effect of making it economically irrational for thevictims of antitrust violations to pursue their claims.Courts have long considered antitrust claims to be too complex and tooimportant to trust to private arbitrators. By the 1980s, the Supreme Courtpermitted federal statutory rights, including antitrust claims, to bearbitrated so long as the plaintiffs could effectively vindicate theirrights in the alternative forum. In 2013, the Supreme Court in ItalianColors fundamentally weakened the Effective Vindication Doctrine when itheld that arbitration clauses that precluded class actions and classwidearbitration were enforceable even when they effectively prohibited allindividual plaintiffs from bringing a case.Arbitration differs from litigation in ways that harm the interests ofconsumer antitrust plaintiffs. For example, arbitration limits discoveryand has no meaningful appeals process. Furthermore, defendants use theterms in arbitration clauses to prevent class actions and to undercut thepro-plaintiff features of antitrust law, including mandatory trebledamages, meaningful injunctive relief, recovery of attorneys’ fees, and alengthy statute of limitations. With the Court’s undermining of theEffective Vindication Doctrine in Italian Colors, defendants’ efforts todismantle these pro-plaintiff components of antitrust law may prove moresuccessful in the future.The problems associated with antitrust arbitration are magnified inconcentrated markets. Supporters of enforcing arbitration clauses assumethat they these contractual provisions are the result of an informed,voluntary bargain. But when a market is dominated by a single supplier or asmall group of firms, consumers often find it impossible to purchase anecessary product while retaining the right to sue, especially sincearbitration clauses are generally embedded in contracts of adhesion. Thismeans that in the markets most likely to be affected by antitrustviolations, consumers are least likely to be able to avoid mandatoryarbitration clauses. Furthermore, when mergers result in concentratedmarkets, they can increase the problems explored in Part Two.Antitrust authorities can address the problem of proliferating arbitrationclauses. When evaluating mergers, officials at the Federal Trade Commissionand the Antitrust Division of the Department of Justice can threaten tochallenge the merger unless the merging parties agree to specifiedconditions, such as the divestiture of certain assets. Because thosemergers that pose the greatest risk of anticompetitive effects also magnifythe problems associated with mandatory arbitration clauses, antitrustofficials would be wise to condition merger approval on the mergingparties’ agreement to not require arbitration of antitrust claims.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

Roe v. Wade and the History of Abortion Regulation

1989 ◽  
Vol 15 (2-3) ◽  
pp. 227-233 ◽  
Author(s):  
Paul Benjamin Linton
Keyword(s):  
Supreme Court ◽  
Personal Privacy ◽  
Personal Liberty ◽  
Personal Rights ◽  
The Supreme Court ◽  
Right Of Privacy ◽  
History Of ◽  
The Right Of Privacy ◽  
The Right ◽  
Roe V Wade

In Roe v. Wade, the Supreme Court held that “[the] right of privacy … founded in the Fourteenth Amendment's concept of personal liberty … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” The Court acknowledged that “[t]he Constitution does not explicitly mention any right of privacy.” Nevertheless, the Court held that a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” However, “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ … are included in this guarantee of personal privacy.”

Constitutional Law in 1942–1943: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1942

1944 ◽  
Vol 38 (2) ◽  
pp. 266-288
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
West Coast ◽  
The United States ◽  
Japanese American ◽  
Circuit Court ◽  
Court Of Appeals ◽  
The Supreme Court ◽  
Set Up ◽  
The Right

On February 15, 1943, Wiley B. Rutledge, Jr., a judge of the United States Circuit Court of Appeals for the District of Columbia, took the seat on the Supreme Court vacated by the resignation in October, 1942, of Mr. Justice Byrnes. There were no other changes in the Court's personnel. Disagreement among the justices abated somewhat. In only a dozen cases of importance did either four or three justices dissent, as against some thirty cases in the last term. The Court overruled two earlier decisions, both recent; and the reversal in each case was made possible by the vote of Mr. Justice Rutledge.A. QUESTIONS OF NATIONAL POWER1. WAR POWER-CIVIL VERSUS MILITARY AUTHORITYWest Coast Curfew Applied to Japanese-American Citizens. In February, 1942, the President issued Executive Order No. 9066, which authorized the creation of military areas from which any or all persons might be excluded and with respect to which the right of persons to enter, remain in, or leave should be subject to such regulations as the military authorities might prescribe. On March 2, the entire West Coast to an average depth of forty miles was set up as Military Area No. 1 by the Commanding General in that area, and the intention was announced to evacuate from it persons of suspected loyalty, alien enemies, and all persons, aliens and citizens alike, of Japanese ancestry.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

scholarly journals State Legislatures Have the Courage to Pass Antiabortion Laws and Test the Ideology of the “New” United States Supreme Court

2020 ◽  
Vol 3 (1) ◽  
pp. 136-150
Author(s):  
Jill Oeding
Keyword(s):  
United States ◽  
Supreme Court ◽  
State Legislatures ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Undue Burden ◽  
Constitutional Right ◽  
Reported Data ◽  
The Right

Many state legislatures are racing to pass antiabortion laws that will give the current Supreme Court the opportunity to review its stance on the alleged constitutional right to have an abortion. While the number of abortions reported to be performed annually in the United States has declined over the last decade, according to the most recent government-reported data, the number of abortions performed on an annual basis is still over 600,000 per year. Abortion has been legal in the United States since 1973, when the Supreme Court recognized a constitutional right to have an abortion prior to viability (i.e. the time when a baby could possibly live outside the mother’s womb). States currently have the right to forbid abortions after viability.  However, prior to viability, states may not place an “undue burden” in the path of a woman seeking an abortion. The recent appointments of two new Supreme Court justices, Neil Gorsich and Brett Kavanaugh, give pro-life states the best chance in decades to overrule the current abortion precedent. The question is whether these two new justices will shift the ideology of the court enough to overrule the current abortion precedent.

scholarly journals Evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto (II)

2011 ◽  
Vol 60 (5) ◽  
Author(s):  
Fabio Persano
Keyword(s):  
United States ◽  
Supreme Court ◽  
Single Case ◽  
The United States ◽  
Planned Parenthood ◽  
Abortion Debate ◽  
The Supreme Court ◽  
Long Time ◽  
The Right ◽  
Roe V Wade

Negli Stati Uniti il dibattito sull’aborto è sempre un tema molto caldo. Questo saggio, diviso in due parti (la prima parte è stata pubblicata sul precedente numero della rivista) prova a ripercorrere l’evoluzione della giurisprudenza costituzionale statunitense in materia d’aborto, evidenziando i cambiamenti che ciascuna decisione ha apportato al quadro giuridico precedente. In questa seconda parte, la dissertazione sui singoli casi giurisprudenziali decisi dalla Suprema Corte prosegue con il caso Planned Parenthood v. Casey. Esso è stato una vera occasione mancata nella storia dell’aborto negli Stati Uniti, perchè venne sfiorata la overrule di Roe v. Wade. Ciononostante, venne sostanzialmente confermato l’impianto delle decisioni precedenti, in considerazione del fatto che una decisione contraria all’aborto avrebbe spiazzato un popolo che per decenni aveva organizzato la propria vita in funzione anche della possibilità di abortire. Con questa decisione si distinse la gravidanza in due periodi: quello della pre-viabilità, in cui la donna era completamente libera di abortire in accordo col medico; quello della post-viabilità, in cui gli Stati avrebbero potuto legiferare, pur dovendo consentire l’aborto nel caso di pericolo per la vita o la salute della madre. Inoltre il diritto d’aborto venne radicato nella libertà riconosciuta nel XIV Emendamento della Costituzione. Nel successivo caso Stenberg v. Carhart fu oggetto di giudizio l’aborto a nascita parziale: una legge del Nebraska aveva bandito questa pratica, ma la legge fu annullata dalla Corte Suprema, nonostante il duro dissenso di ben quattro giudici, fra cui Anthony Kennedy. Successivamente a questa decisione, il Congresso prese l’iniziativa di emanare il Partial Birth Abortion Ban Act. Questa legge fu impugnata in via d’azione davanti alla Corte Suprema e ne scaturì la sentenza Gonzalez v. Carhart. In questa decisione la Corte fece un passo indietro rispetto a Stenberg, affermò la legittimità del bando, sostenne che l’aborto a nascita parziale non è mai necessario per tutelare la vita della donna e che Stenberg era fondato su convinzioni erronee sul punto. Il saggio si conclude con delle interessanti considerazioni in merito ai possibili sviluppi futuri circa il tema dell’aborto negli Stati Uniti, auspica la “liberalizzazione del diritto alla vita” ed avanza una originale proposta, valida per tutti i Paesi in cui l’aborto è legalizzato. ---------- Abortion debate is always a hot subject in the United States. This essay, divided into two parts (the first part has been published on the previous issue of this review) tries to go along the development of U.S. constitutional caselaw about abortion, pointing out the change that each judgement caused to the previous law framework. In this second part, the dissertation about U.S. Supreme Court single case-law goes on by Planned Parenthood v. Casey. It was a real missed occasion in the abortion affair in the United States, because it was on the verge of overruling Roe v. Wade. However, the framework of the previous cases was substantially confirmed, considering that a decision against abortion would place out people who for a long time organized their own life in connection to the right of abortion. By this judgement, pregnancy was divided into two periods: pre-viability, when woman was completely free to have an abortion in agreement with her doctor; post-viability, when States could restrict abortion, except for woman life or health risks. Moreover, abortion right was founded on liberty, acknowledged by XIV Amendement. In the following case Gonzalez v. Carhart, partial-birth abortion was judged: a statute of Nebraska banned this activity, but it was stroked down by Supreme Court, despite of the dissenting opinion of four judges (Anthony Kennedy was one of them). After this judgement, the Congress wanted to issue Partial Birth Abortion Ban Act. This statute was pre-enforcement challenged to the Supreme Court, and Gonzalez v. Carhart was poured. In this judgment, the Court drew back Stenberg, it stated the ban was legitimate, partial-birth abortion never is necessary to safeguard woman health, and Stenberg was founded on wrong beliefs on this matter. This essay concludes with interesting considerations about possible developments about abortion affair in the United States, wishes “liberty of right to life” and proposes a solution for all the countries where abortion is legal.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

scholarly journals PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia)

2017 ◽  
Vol 6 (3) ◽  
pp. 399
Author(s):  
Akmal Adicahya
Keyword(s):  
Supreme Court ◽  
Access To Justice ◽  
State Law ◽  
Legal Aid ◽  
Procedural Law ◽  
The Supreme Court ◽  
The Government ◽  
The Right ◽  
Law Student

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice

scholarly journals RESPONSABILIDADE EM FACE DE PIQUETE NA JURISPRUDÊNCIA NORTE-AMERICANA

2019 ◽  
Vol 1 (54) ◽  
pp. 499
Author(s):  
Edilton MEIRELES
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Deductive Method ◽  
The Face ◽  
The Subject ◽  
The Right

RESUMONeste trabalho tratamos do direito de manifestação em piquetes e da responsabilidade que possa advir desses atos em face da jurisprudência da Suprema Corte dos Estados Unidos da América. A partir da análise das principais decisões da Suprema Corte se pode concluir que, de modo geral, os participantes do piquete não respondem quando agem de forma não ilegal. Está sedimentado, no entanto, o entendimento de que o organizador do piquete responde pelos atos dos participantes. A pesquisa desenvolvida se justifica enquanto estudo comparativo e diante do pouco debate existente no Brasil a respeito do tema. Na pesquisa foi utilizado o método dedutivo, limitada à ciência dogmática do direito, com estudo de casos apreciados pelo judiciário. PALAVRAS-CHAVES: Responsabilidade; Piquete; Estados Unidos; Suprema Corte; Liberdade De Expressão. ABSTRACTIn this work we deal with the right of demonstration in pickets and the responsibility that may arise from these acts in the face of the jurisprudence of the Supreme Court of the United States of America. From the analysis of the Supreme Court's main decisions it can be concluded that, in general, the picket participants do not respond when they act in a non-illegal way. It is settled, however, the understanding that the picket organizer responds by the acts of the participants. The research developed is justified as a comparative study and in view of the little debate that exists in Brazil regarding the subject. In the research was used the deductive method, limited to the dogmatic science of law, with study of cases appreciated by the judiciary.KEYWORDS: Responsibility; Picket; United States; Supreme Court; Freedom Of Expression.

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