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Lay Down And Wait For Good News Unless You Are Bowling Alone: A Comparison Of The Identity Crisis Confronting The Japanese Corporate Warrior And The American Corporate Law Firm Associate
No full textThe Antitrust Jurisprudence of Neil Gorsuch
No full textIn 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is anti-trust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.
His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. This Essay provides the first in-depth descriptive and prescriptive analysis of Gorsuch’s antitrust jurisprudence. While it reveals (perhaps unsurprisingly) a great deal of sophistication vis-à-vis antitrust doctrine, it also identifies several areas for improvement.
While serving on the Tenth Circuit, Gorsuch effectively expanded upon—even rewrote—existing precedent, including Justice Scalia’s notable opinion for the majority in Trinko. For normative force, Gorsuch’s jurisprudence at times rested upon logical fallacies and an unduly one-sided error-cost framework. This Essay offers prescriptive suggestions for Gorsuch and other jurists to follow in future cases, with an eye toward producing a more transparent, coherent, and welfare-maximizing body of antitrust law
International Chamber of Commerce Arbitration, 4th ed.
No full texthttps://scholarship.law.bu.edu/books/1247/thumbnail.jp
The Case for a US Declaration Under Article 22 of the Choice of Court Convention
No full textIn this article, written for the festschrift honoring Professor David P. Stewart at Georgetown Law Center, I recommend that the United States exercise the opportunity to take an Article 22 declaration when ratifying the 2005 Hague Choice of Court Convention. While both the jurisdiction rules in Chapter II and the recognition and enforcement rules in Chapter III of that Convention are otherwise limited to the narrowly-defined exclusive choice of court agreements, non-exclusive choice of court agreements play a significant role in international commercial relationships. Article 22 offers the opportunity to create a regime of states that will apply the judgments recognition rules of the Convention to judgments from courts in which jurisdiction was based on a non-exclusive choice of court agreement. This avoids having non-exclusive agreements considered in the court of origin under the Convention, thus preventing the need for rules dealing with parallel litigation but furthers the basic thrust of the Convention in increasing the recognition and enforcement of judgments under common rules. The recent Swiss Article 22 declaration makes a U.S. declaration particularly valuable. After reviewing the benefits of a declaration, and finding no real disadvantages, I conclude that the U.S. ratification of the Convention should include a declaration opting in to the Article 22 regime for recognition and enforcement of judgments resulting from non-exclusive choice of court agreements
Professional Responsibility and Privilege in the Cross-Border Practice of Law
No full textThis article captures my presentation and the discussion at the May 2024 Dubrovnik Program on Cross-Border Dispute Resolution co-sponsored by the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law and the Law Faculties at the University of Verona and the University of Zagreb. I review U.S. law on professional responsibility and cross-border practice, with a focus on disciplinary decisions and cases dealing with the unauthorized practice of law. I follow that discussion with consideration of the attorney-client privilege and work product doctrines in order to highlight how challenges to the admissibility of evidence in dispute resolution proceedings both demonstrate the differences in legal system approaches to the lawyer-client relationship and indicate the need for careful communication at all stages of that relationship when it crosses borders. I conclude that the current system of lawyer regulation does not meet the needs of the contemporary world. The result is a need for vigilance on the part of any lawyer engaged in the cross-border practice of law
Reverberations of Magna Carta: Work Injuries, Inkblots, and Restitution
No full textThis article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. Workers’ compensation, the current state-based system by which American workers receive compensation for work-related injury and death, was obtained from legislatures as a “Grand Bargain,” the value of which has significantly deteriorated over time; and the constitutional coherence of which has been impacted by the obvious inadequacy of worker remedies. The bargain, in other words, has been breached; and the article argues for a “New Bargain” driven by worker consciousness of employer unjust enrichment from the original bad bargain.
A New Bargain may be contractually renegotiated by labor unions in unionized industries; or it may emerge as a series of “shock absorbers” in reaction to national emergencies, like pandemics and extreme weather events; or expanded disease coverage, which COVID-19 revealed is virtually nonexistent. The New Bargain should be aggressively sought in brusque disregard of the fiction that workplace harm is necessarily accidental and thus damnum absque injuria. This tale was built on misinterpretations of the constitution that simply will no longer do. The article discusses “unenumerated rights” and contends that they exist and include federal guarantees to adequate remedies for tortious harm. More importantly, the article asserts that worker embrace of this idea can energize a spirit of restitution: what has been taken may be regained through mandatory federal bargaining and state-specific statutes.
The article takes issue with inadequate benefits like, for example, arbitrary cutoffs in which workers receive paltry sums like $155,000 (total) for a lifetime of total disability (the maximum recovery in Kansas as of this writing). Given such shocking numbers, it can only be hoped that “welfare” or “social security” will fend off worker poverty. Although partially disabled workers were originally, in the early 20th century, entitled to a weekly benefit based on a percentage of the amount of wages lost as a result of a work injury, or on some estimate of the reduction of an injured worker’s earning capacity after the injury, for the full duration of the injury, this right is no longer recognized in most states. Instead, partially disabled workers are compensated under arbitrary benefit “schedules” bearing no articulated relationship to wages lost, or even to an explicit projected loss of earning capacity. All of this, the article contends, is broadly subject to worker revision, and this article provides an outline of first steps out of the morass
