LARC Cardoso Law (Yeshida Univ)
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All for One, One for None: \u3ci\u3eArrington v. Burger King Worldwide\u3c/i\u3e and the Single-Entity Defense for Franchises
Get PDFSection 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld failed to address business entities that do not fall so cleanly within the “parent company” and “wholly owned subsidiary” buckets, including franchised business entities and other joint ventures.
Franchised businesses are typically independently owned by franchisees, and franchisees are both dependent on and independent from their franchisors. For example, franchisees may be dependent on franchisors for merchandising decisions, but independent with regard to hiring decisions. In Arrington v. Burger King Worldwide, Inc., the Eleventh Circuit clarified the Sherman § 1 analysis of franchisors and franchisees by correctly applying American Needle, Inc. v. National Football League, which guides courts to look to the activity at issue, instead of the formal structure of the entities engaged in the activity, to assess whether the actors are separate entities or a single entity under Sherman § 1.
The Eleventh Circuit’s application of American Needle led it to the proper conclusion that franchised fast food restaurants are separate actors in labor markets and may conspire for the purposes of Sherman § 1. The Eleventh Circuit is the first circuit court to address the applicability of Sherman § 1 to franchisors and franchisees since the American Needle decision and its Arrington decision represents a shift from the Sherman § 1 leniency franchisors and franchisees enjoyed before American Needle.
This Case Note argues that the Eleventh Circuit correctly applied American Needle to franchisors and franchisees and properly considered labor market competition within the scope of Sherman § 1. Part I of this Case Note explores the legal landscape relating to the Sherman Act, franchising agreements, and the single-entity defense. This Part then presents the facts and procedural history of Arrington and explores the Eleventh Circuit’s decision and its application of American Needle. Part II begins with a defense of American Needle’s flexible approach toward antitrust liability. This Case Note then argues that the Eleventh Circuit in Arrington correctly applied American Needle within the context of assessing concerted action between a franchisor and franchisee. Next, this Case Note discusses Sherman § 1’s application in the context of labor markets. A portion of Part II is dedicated to contextualizing Arrington within recent trends in antitrust enforcement—particularly the Biden administration’s aggressive approach toward antitrust enforcement. Part II concludes with an argument that, on remand, the “no-hire agreements” in Arrington should be held illegal regardless of the applicable standard of review
Justice Theater in the Criminal Law Curriculum
Get PDFFor the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment. The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.
How did this happen?
A number of legal scholars, notably including Alice Ristroph in her 2020 Article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration. This Article agrees, and focuses on two concrete critiques, alongside two corresponding curricular reforms.
First, criminal law courses routinely introduce the field in part by discussing a series of theoretical “justifications of punishment” such as retribution, deterrence, incapacitation, and rehabilitation. These discussions often provide students with tools for arguing in favor of punishment, and in particular incarceration, without providing relevant empirical evidence that shows the limits of the theoretical justifications. Students are invited to focus on the theoretical benefits of incarceration without being adequately exposed to the negative effects of incarceration as it is actually practiced in the United States today.
The tradition of introducing criminal law through the discussion of theoretical justifications for punishment should be abandoned. Instead, this Article proposes beginning the criminal law course with an empirically informed discussion that frames criminal law as one response among many to the social problem of public safety.
Second, the bulk of most criminal law casebooks consists of excerpts from judicial opinions. These excerpts tend to describe harmful acts carried out by defendants without providing adequate context for thinking seriously about justice. The excerpts send the message that criminal harms result from isolated, individual choices by bad people, rather than being conditioned by situational and other factors, including policy choices by the state.
This Article proposes replacing criminal law case excerpts with a method of instruction based on case studies, similar to the case study method used in many professional schools. Case studies could provide students with more context for understanding criminal harms, and in particular could better equip future prosecutors to serve as “problem-solver[s] responsible for considering [the] broad goals of the criminal justice system,” as the ABA Criminal Justice Standards demand.
In the coming years, the arrival of the NextGen bar exam will offer an occasion to reconsider how criminal law is taught in the United States. Rather than continuing to train students in ways of thinking that facilitate mass incarceration, the curriculum should be changed
A Survey of Slavery & the Slave Trade Law
No full textThis comprehensive report, compiled by the Benjamin B. Ferencz Human Rights and Atrocity Prevention (HRAP) Clinic at the Benjamin N. Cardozo School of Law from 2020 to 2024, surveys domestic slavery and slave trade laws across States Parties to the Rome Statute. Law students conducted comparative legal research examining how national legislation defines and criminalizes slavery, the slave trade, sexual slavery, and related practices such as trafficking and forced labor. Organized by region, the report presents constitutional and penal code provisions, assesses compliance with international humanitarian law, and highlights legal trends and gaps. It serves as a vital resource for international law scholars, policymakers, and advocates seeking to understand global legal approaches to slavery and atrocity prevention.https://larc.cardozo.yu.edu/clihhr-reports/1000/thumbnail.jp
What Mediation Romantics can Learn from the Model T (or Maybe the Chevrolet Trax)
Get PDFWhen mediation was reintroduced to the U.S. in the 1970s, it was infused with a democracy-and-self-determination-enhancing, social justice ethos. As the process has been very successfully institutionalized, however, these ambitions have been scaled backalthough, at least arguably, certain mediative elements have actually been adopted (or coopted) by other procedural innovations. Perhaps it is time for those of us frustrated with the evolution of mediation to reconcile ourselves to the reality and value of a basic model of mediation designed for the sole purpose of getting parties from dispute to settlement-in much the same way that the basic model of a car achieves the purpose of getting its riders from PointA to Point B. As with that car, it is quite possible for parties to add other desirable features to mediation in order to respond to their unique needs and aspirations. But not necessary. Meanwhile, even the most basic model of a car must meet-and regularly prove that it meets-certain safety and environmental standards. What are the analogous standards for mediation, especially when courts or contracts of adhesion require its use
Addressing New York\u27s Scaffolding Issue through an Arbitration Framework
Get PDFNew York City is one of the most, if not the most, famous cities in the world. Whether it is the melting pot of cultures, the signature attitude of its residents, or the numerous attractions, people flock to New York to either see the city with their own eyes or end up moving here to become part of the city itself. However, one of New York\u27s most notable features is the beautiful architecture it boasts. Every neighborhood comes with its own distinct feeling once you pass through it, which in large part has to do with kinds of buildings that populate the area. From the neo-colonial buildings in lower Manhattan, to the Greek revival townhouses in the Upper East Side, or the cast-iron aesthetic seen in Soho, the expansive array of designs that can be seen in each neighborhood is a crucial part of what makes this city so unique
Squatters Squabbles: The Use of Mediation to Provide Beneficial Solutions to Adverse Possession Claims in New Jersey
Get PDFIn our society, law is a complex and ever-evolving field, constantly adapting to fit our needs. Yet, there are certain legal matters we would expect to have clear and obvious resolutions. Property ownership should be simple and unambiguous, governed by established legal rules and precepts. Examine a deed, survey the stated legal owner of the tract of land, and your answer should be uncomplicated. Yet, there are a multitude of complex laws that allow individuals to obtain legal ownership of land in a seemingly illicit fashion
Regulating Driving Automation Safety
Get PDFOver forty thousand people die in motor vehicle crashes in the United States each year, and over two million are injured. The careful deployment of driving automation systems could prevent many of these deaths and injuries, but only if it is accompanied by effective regulation. Conventional vehicle safety standards are inadequate because they can only test how technology performs in a controlled environment. To assess the safety of a driving automation system, regulators must observe how it performs in a range of unpredictable, real world edge cases. The National Highway Traffic Safety Administration (NHTSA) is trying to adapt by experimenting with a novel regulatory strategy. Instead of setting standards, the agency is using its statutory powers in unprecedented ways—ordering automation developers to report crashes daily and directing rapid recalls that require changes to defective software. NHTSA is betting that intense monitoring and the credible threat of recalls will push developers to prioritize safety. This Article argues that NHTSA’s experimental strategy could be transformed into effective safety regulation. Regulators should (1) require that all new vehicles be equipped with telematics that can send safety data and receive software updates over the air; (2) mandate universal crash reporting; and (3) use recalls to force developers of driving automation systems that create unreasonable risks to restrict where their systems can operate until they can develop safer code
