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In the wake of Leegin, companies engaged in cross-border transactions face a great deal of uncertainty regarding how to take advantage of the increased freedom afforded by this new United States policy. A company either undertakes to manage different pricing policies in each jurisdiction, risks the threat of prosecution in certain jurisdictions, or follows the strictest policy in all jurisdictions–none of which are ideal options.
This Note will examine the potential complications of the fact that Leegin now sets the United States at odds with many of its major trading partners in the area of RPM, and the ramifications of that divide. Part II.A reviews the development of United States antitrust law in the area of RPM. Part II.B discusses the details of the Leegin decision, and Part II.C addresses both federal and state reaction to the outcome of the case.
Part II.D then explores international competition law and the implications of Leegin in a global sense, focusing on the interplay between United States antitrust laws and the laws of both Canada and the EU. Parts II.D.1-2 focus on the substantive antitrust law on RPM in Canada and the EU. Part II.D. discusses the mechanics of the exposure of a United States company when engaging in practices that violate foreign antitrust laws. Part II.E then surveys the general trend toward harmonization of international antitrust policy and the efforts of jurisdictions such as Canada and the EU to conform with United States practices.
Part III analyzes the challenges posed by the divergence of United States and international law, and the possibilities for resolution. Part III.A focuses specifically on the options available to companies engaged in cross-border trade and interested in taking advantage of the new federal law in the United States. Part III.B examines the likelihood for resolution and convergence of substantive law on minimum RPM. Part III.B.1 discusses the potential that the states or Congress will overturn Leegin in the United States. Part III.B.2 evaluates the possibility that either Canada or the EU will modify their laws to align with the United States. Part III.B.3 explains that, because of the focus on international convergence of competition policy, the United States domestic response to Leegin will likely play a role in determining the actions of Canada and the EU.
This Note concludes by asserting that the recent emphasis on convergence will likely motivate Canada and the EU to reconsider their RPM policies in light of the Leegin decision, though the uncertainty in the domestic application of Leegin will likely require a waiting period for both the United States and foreign jurisdictions to observe the effects of this precedent. . .
On March 12, 2008, the Boston Zoning Commission amended the Boston Zoning Code to restrict more than four undergraduate students from living together in a leased dwelling. The amendment redefined the term “family” in the zoning code by explicitly stating that five or more full-time undergraduate students do not constitute a family. This redefinition made it illegal for five or more undergraduate students to live together, as the City of Boston zones residential districts strictly for “family” habitation. Proponents support the new definition because it strikes directly at the overcrowded, student-occupied dwellings that proponents believe are the main cause of neighborhood disruption. Opponents believe the amendment arbitrarily targets undergraduate students and will result in higher rents. In addition to public policy concerns, critics have raised serious issues regarding the amendment’s legality.
This Note explores the amendment through analysis of the aforementioned constitutional issues. Part II.A summarizes the legal challenge that prompted Boston to amend its zoning code. Part II.B examines case law relating to potential constitutional challenges to the amendment involving heightened scrutiny. Part II.C presents case law relevant to the amendment’s likelihood of passing the lowest level of judicial scrutiny. With the important case law as a foundation, Part III analyzes the amendment’s potential to receive heightened scrutiny and likelihood of passing the lowest level of constitutional review. . .
This Note will discuss the uncontrollable growth of the mortgage giants, Fannie Mae and Freddie Mac, and the need to change the policies that created perverse incentives for financial institutions and investors to act in ways adverse to economic stability. The first part of this Note will discuss the history of the federal government’s role in financing mortgages and promoting home ownership. Secondly, the Note will examine the secondary mortgage market and the innovative financial securities that have emerged in the past few years and the concerns that come with these new products. Finally, part three of the Note will present arguments for privatizing Fannie Mae and Freddie Mac. . .
DEAN ALFRED C. AMAN: Good afternoon and welcome to part two of our Donahue Lecture Series. We are honored to have a very distinguished panel who will be commenting on Justice Kirby’s talk that you have just heard. I want to introduce all the members of the panel all at once and then they will speak in an order that goes across the table. When they finish I am hoping that Justice Kirby will have some comments, responses, or resonances. At that point, we want to open it up to questions and discussion from the audience. We have with us four commentators today, beginning with Professor Eric Blumenson, who needs no introduction at Suffolk Law School. He came here from criminal law practice in Seattle and later in Boston and has been teaching Criminal Law at this law school as well as Moral and Legal Philosophy, Human Rights, and Jurisprudence. He has been a Fulbright scholar in Lahore, Pakistan, and a visiting professor at the University of Witswatersrand in South Africa. He was a reporter to the Supreme Judicial Court’s Criminal Rules Advisory Committee. He was responsible for drafting the first major revision to the Massachusetts Criminal Rules. His scholarly work includes a two-volume criminal law treatise, numerous articles on criminal law, human rights, and philosophy. . .
For more information about Justice Kirby’s Donahue Lecture (which served as the basis for this discussion) please click here.
The First Annual Symposium of the Masterman Institute
on the First Amendment and the Fourth Estate
It is a privilege for me to give the first Masterman Institute lecture. Edward Masterman has been an inspiring leader of the bar. He and his wife, Sydell, funded the institute to explore the freedom of the press and its limits. I think that is a wise combination of subjects. The press often sounds as though there are no limits on what it can do—as though all its problems can be solved by crying, “First Amendment.” But that is not true and never has been. In my judgment, the press will be strengthened in its great functions if it understands that limits—responsibilities—go along with its freedom. My subject today is privacy and how that value intersects with and limits the vital interest of press freedom. I shall begin by describing an actual series of events, asking you to consider where lines should be drawn. On June 24, 1990, Mrs. Ruth Shulman was driving on a California freeway when her car was hit by another and rolled down an embankment. Mrs. Shulman was gravely injured and was trapped in the car. A rescue helicopter was called to the scene. . . .
I can never get this straight: Is it “grow or die” or “grow and die”? In late 2008, the Heller Ehrman and Thelen firms failed. Heller Ehrman, founded in 1890, had 730 lawyers spread across fifteen offices in the U.S. and abroad. Thelen, dating from 1924, had more than 600 lawyers in offices on both the Atlantic and Pacific coasts and in Shanghai. In mid-February 2009, other large law firms terminated 1,100 lawyers and staffers in only two days. A week or two later, Latham and Watkins, which had 2,300 lawyers in twenty-eight offices, terminated 190 lawyers and 250 members of its staff. Over a six-month period in 2008, Cadwalader, Wickersham and Taft, a 206-year-old New York based firm, laid off 131 lawyers, 20% of the firm. Cadwalader and Latham are both aggressively managed firms that have been among the most profitable in recent years. . . .
In May of 2007, the Supreme Court issued its opinion in Bell Atlantic Corp. v. Twombly that literally revolutionized the standard for determining the legal sufficiency of a complaint. In that decision, which Justice Souter wrote for the majority, the Court abandoned the fifty-year-old “no set of facts” standard set out in Conley v. Gibson, and substituted a “plausibility” standard. Some two years later, in May of 2009, the Court handed down Ashcroft v. Iqbal, a case that provided the Court the opportunity of reaffirming and clarifying Twombly and in which the Court extended the Twombly standard to all civil cases filed in the federal district courts. Significantly, this time, in Iqbal, Justice Souter dissented. This article will examine the impact of these two decisions on the concept of notice pleading and on motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. . . .
This Note examines current factors affecting copyright rights, critiques the PRO-IP Act as a response to those factors, and explores recent business strategies for monetizing the production of intellectual property notwithstanding those factors. Part II.A examines the history of copyright law as responsive to technological, cultural, economic, and political changes in the intellectual property environment. Part II.B describes United States copyright law prior to the passage of the PRO-IP Act and examines the prior law’s efficacy within the current intellectual property environment. Part II.C explains how the PRO-IP Act amended the copyright statute. Part II.D examines recent effective business strategies to sustain profits. Part III critiques the PRO-IP Act from political, technological, cultural, and economic perspectives. Part III.A argues that, from a political standpoint, while the Act squarely addresses international infringement concerns, it deals with domestic infringement in a highly oppressive manner. Part III.B contends that Congress’s difficulty accepting technological development has forced an overemphasis on ensuring fairness to commercial information producers. Part III.C asserts that the Act is problematic from a cultural perspective because it fails to account for access to modern information production technology, inhibits the production of culturally valuable information, and views decentralized information production as an evil. Part III.D criticizes the economic reasoning behind the passage of the Act because it stems from an incomplete cost-benefit analysis and ignores the opportunity cost of stifling new business development. . .