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Our Dublin correspondent telegraphed last night:

The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided by a preponderance of the evidence. This means that conduct challenged under the rule of reason is only condemned if the conduct resulted in more competitive harm in the actual world than a world without the alleged violation. Under conventional analysis, the intent of the parties also plays only a supporting role in determining whether the conduct was anticompetitive. A holder of a valid patent has a right to exclude others practicing the patented technology. And, the patent holder is not assumed to have market power because it expended resources in maintaining exclusionary rights. Actavis creates doubts about these propositions in circumstances beyond the “reverse” payment settlement of a patent suit that may have delayed an alleged infringer market entry. This chapter explores whether applying Actavis logic to antitrust litigation can result in condemnation of practices where there is little chance of an anticompetitive effect, where the patent holder likely has a valid and infringed patent, where there is little reason to believe that the patent holder has market power, and where only one party, or no parties, to an agreement have an anticompetitive intent. This chapter also investigates whether Actavis creates new problems with standing analysis, damages calculations, and the balancing of efficiencies against anticompetitive effects. Nevertheless, the lower courts have begun to extend the logic of Actavis. This is apparent in the condemnation of no-Authorized-generic settlements.

Copyright can be confusing and intimidating for schools. Copyright is difficult enough to understand when dealing with paper, but as new technologies enter the mix, copyright is often ignored as obsolete or is so confusing that even beneficial and legal uses are avoided. While copyright places restrictions on some use of material, educators have many rights to use work created by others. This chapter helps guide educators through the issues relating to copyright and technology so copyright is not used as an automatic “no” to legitimate uses or an automatic “yes” for questionable uses.

The study of policing in Anglo-American societies has been severely restricted in the last 20 years to quasi-historical overviews, studies of policing in times of stable, non-crisis periods in democratic societies that in turn had survived the crisis as democracies. Perhaps the epitome of this is the sterile textbook treatment of policing in Canada and the United States – a sterile rubble of functions, duties, training surrounded by clichés about community policing. Scholarly writing on democratic policing and its features is severely limited by lack of inclusiveness of the range of contingencies police face, and many respects this work is non-historical and non-comparative. In the present world of conflict and strife that spreads beyond borders and challenges forces of order at every level, the role of police in democratic societies requires more systematic examination. In my view, this cannot be achieved via a description of trends, a scrutiny of definitions and concepts, or citation of the research literature. Unfortunately, this literature makes a key assumption concerning police powers in democratic societies: that the police are restricted by tradition, tacit conventions, and doctrinal limits rooted in the law or countervailing forces within the society. While these constraints are sometimes summarized as a function of “the rule of law,” this assumption is much deeper and more pervasive than belief in the rule of law. It is possible to have a non-democratic police system that conforms to the rule of law and reflects the political sentiments of the governed. It is also possible to have non-democratic policing emerge from a quasi-democratic system as I show in reference to the transformation of the police in the Weimar Republic to the police system of the Third Reich. The complex relationship between policing and a democratic polity remains to be explored.

The position of these Irish agitators is illogical and untenable; the remedy they propose is no remedy at all – nevertheless they are talking about the tenure of land and the right to land; and thus a question of worldwide importance is coming to the front.³

In this article Professor Perry argues that Plessy v. Ferguson and the de jure segregation it heralded has overdetermined the discourse on Jim Crow. She demonstrates through a historical analysis of activist movements, popular literature, and case law that private law, specifically property and contract, were significant aspects of Jim Crow law and culture. The failure to understand the significance of private law has limited the breadth of juridical analyses of how to respond to racial divisions and injustices. Perry therefore contends that a paradigmatic shift is necessary in scholarly analyses of the Jim Crow era, to include private law, and moreover that this shift will enrich our understandings of both historic and current inequalities.

In recent years, the European Commission and various Member States, citing increasingly integrated markets and higher levels of cross-border activity within the European Union (“E.U.”), have called for the adoption of effective collective redress mechanisms for victims of violations of E.U. law. Although many Member States have already adopted collective action procedures under national law, these procedures have been ineffective in stimulating private enforcement of E.U. law and are often divergent in their approach to consolidating claims. E.U. lawmakers, after a lengthy period of investigation and study, have identified a set of guiding principles for the Member States to use in enacting new collective redress procedures within their national systems. The studies and papers solicited from the public during the Commission’s deliberations are explicit in their rejection of the U.S.-style opt-out class action mechanism. In their effort to avoid similarly calamitous results, European lawmakers propose that Member States adopt “opt-in” class actions, while rejecting many of the economic incentives that some believe lead to filing nonmeritorious claims, such as punitive damages and contingency fee arrangements. The European proposal is unlikely in the authors’ view to stimulate private enforcement of European law or increase victims’ access to compensation, given the flaws inherent in the opt-in class action device. Instead of looking to adopt a “U.S.-lite” approach to victim redress which is fundamentally incompatible with many judicial systems within the E.U., the authors propose that Europeans consider adopting a regulatory administered compensation system, modeled after such U.S. examples as the Securities and Exchange Commission Fair Funds and the September 11th Victim Compensation Fund. The authors also propose that regulatory administered funds can provide more effective and efficient restitution to victims than traditional litigation.

Many jurisdictions fine illegal cartels using penalty guidelines that presume an arbitrary 10% overcharge. This article surveys more than 700 published economic studies and judicial decisions that contain 2,041 quantitative estimates of overcharges of hard-core cartels. The primary findings are: (1) the median average long-run overcharge for all types of cartels over all time periods is 23.0%; (2) the mean average is at least 49%; (3) overcharges reached their zenith in 1891–1945 and have trended downward ever since; (4) 6% of the cartel episodes are zero; (5) median overcharges of international-membership cartels are 38% higher than those of domestic cartels; (6) convicted cartels are on average 19% more effective at raising prices as unpunished cartels; (7) bid-rigging conduct displays 25% lower markups than price-fixing cartels; (8) contemporary cartels targeted by class actions have higher overcharges; and (9) when cartels operate at peak effectiveness, price changes are 60–80% higher than the whole episode. Historical penalty guidelines aimed at optimally deterring cartels are likely to be too low.

The United States adopted a new welfare regime in 1996. The centerpiece of this legislation is a notion of personal responsibility that redefines the relation between individuals and the state. I use this law as a foil to outline a new paradigm of legal research. We must understand welfare, I argue, as part of a self-referential legal system. Law is legitimated by particular kinds of fair, democratic political agreement. When material inequalities undermine political participation, however, the law must insure the bases of its own legitimacy through welfare. Welfare law is thus vital to a nation’s legal system as a whole. Seen from this perspective, the current American welfare system fails to fulfill the basic presuppositions of legal legitimacy.