Volume 67, Summer 2015, Issue 6

Volume 67, Summer 2015, Issue 6

Articles

NOTICE-POSTING OF EMPLOYEE RIGHTS: NLRB RULEMAKING AND THE UPCOMING BACKFIRE

Duane Morris

This Article reviews the past and present features and requirements of NLRB rulemaking, both generally and with reference to the invalidated notice-posting rule. The article also analyzes two appellate decisions, Chamber of Commerce of the United States v. NLRB and National Association of Manufacturers v. NLRB, in an effort to demonstrate how those decisions are at cross purposes with established law—a critique that should also provide useful guidance for future rulemaking. Finally, notwithstanding the negativity of those decisions, there is yet another procedure which the Board could effectively and legally promulgate to inform employees at their workplaces of their NLRA rights and how to enforce them. That procedure is a new rule that the article proposes—a rule that could become an effective backfire emanating from those two judicial ventures in NLRA obstructionism.

HOW VIOLENCE KILLED AN AMERICAN LABOR UNION

Duane Rudolph

The author examines judicial violence by examining Commonwealth v. Pullis (1806), also known as The Trial of the Journeymen Boot & Shoemakers of Philadelphia. In Part I, the author focuses on the prosecution’s definition of a “violent” union. Relying on etymology, the author examines how the prosecution argued that the union was violent and why it did so. The author examines how “violence” was conflated with “coercion,” and the author incorporates the constitutional and economic context to understand the impact of the prosecution’s arguments. In Part II, the author examines the prosecution’s violence. The author expands the definition of judicial violence to incorporate hypocrisy and projection as the means through which violence might occur at trial. In Part III, the author extends the meaning of judicial violence to incorporate legislative acts. Judicial violence can be seen in the manner in which the legislature writes laws reflecting the interests of a particular group. A court then deploys those laws against those least able to bear their weight.

In the conclusion, the author argues that such violence risks becoming cyclical unless redemption is achieved. Redemption is possible when defeated communities recall their experience and refuse to impose their suffering on others. Such communities thus enrich the law and legal experience. They have often suffered great violence, yet their experience has empowered them to engage with the law in creative and often transcendent ways. They transform yesterday’s violence through memory and service.

CONTRIVANCE AND COLLUSION: THE CORPORATE ORIGINS OF SHAREHOLDER DERIVATIVE LITIGATION IN THE UNITED STATES

Donna I. Dennis

Part I of this Article surveys the rise of the derivative action in the nineteenth-century United States. It emphasizes the early use of such suits by minority shareholders seeking to hold directors or officers of a corporation accountable for acts of misconduct such as fraud, self-dealing, waste of assets, ultra vires transactions, and gross negligence. Part II explores how, around the middle of the nineteenth century, corporate advisors recognized the benefits of derivative litigation for corporations, especially in federal court, and began to employ such actions against third parties (i.e., individuals or entities that were unaffiliated with the corporation). Throughout the second half of the nineteenth century and into the early decades of the twentieth, corporations often orchestrated litigation by shareholders as a vehicle for asserting corporate claims against outsiders, especially governmental bodies seeking to regulate business. Part III offers a brief account of the waning of corporate enthusiasm for the strategic deployment of derivative proceedings in the 1930s. By the early 1940s, this change of heart had hardened into high-profile attacks on derivative suits and the lawyers who pursued them.

Speeches

WHAT PROCESS IS DUE? THE ROLE OF JUDGING IN NATIONAL SECURITY

The Honorable James E. Baker

This Speech starts by defining national security law in order to ask two questions: Should national security lawyers act more like judges? Conversely, should judges act more like national security lawyers? These are, of course, rhetorical questions. The real question is: In what way? What do judges bring to the subject, which national security lawyers should do more to emulate? And, what do national security lawyers bring to the fray that would assist judges? One answer to this last question, but not the only, is mastery of intelligence process and product. The Speech then turns to the topic of military justice. Military justice is critical to national security because of its role in upholding good order and discipline. It also plays an important, perhaps disproportionate role, in the current discussion about sexual assault. The Speech closes with a discussion about judges and military service. The two not so hidden agendas are: First, to tell you stories about two judges the speaker admires and the role of military service in their lives. And, second, in telling their stories, to remind us all about the importance of civil-military connections. In a democracy, the military and civil society should be connected, not distinct. A strong civil connection is better for the military. A strong military connection is better for civil society, including the judiciary.

Notes

A NEW POST-LEEGIN DILEMMA: RECONCILIATION OF THE THIRD CIRCUIT’S TOLEDO MACK CASE AND THE SECOND CIRCUIT’S APPLE E-BOOKS CASE

Wan Cha

Part I of this Note introduces basic concepts, such as horizontal and vertical pricefixing, through a classic lemonade stand hypothetical. It then introduces the relationship between the per se rule and rule of reason, and briefly discusses antitrust history leading up to the Leegin case. Finally, it summarizes Leegin, where the Supreme Court recently held that vertical price-fixing arrangements should be reviewed under the rule of reason because they have legitimate procompetitive applications. Part II of this Note describes how Leegin created a new legal problem for cases determining the liability of a vertical actor who allegedly facilitated a horizontal cartel. Because Leegin distinguished vertical price fixing as a rule of reason analysis and horizontal price fixing as per se illegal, it is unclear whether the vertical actor supporting a horizontal conspiracy should be held per se liable. Two cases have tackled the issue so far but have seemingly disagreed: Toledo Mack Sales & Services, Inc. v. Mack Trucks Inc. in the U.S. Court of Appeals for the Third Circuit and United States v. Apple Inc. in the U.S Court of Appeals for the Second Circuit. This Part then respectively discusses the shortcomings of rule of reason and per se analyses, demonstrating that it is crucial to accurately determine where one rule ends and the other begins. Finally, Part III of this Note observes that the Supreme Court in Leegin provided four guiding principles to help lower courts formulate a structured rule of reason analysis for vertical price restraints: (1) that conduct harming interbrand competition is antitrust policy’s primary concern; (2) that when multiple manufacturers are involved in a conspiracy, it is more likely that interbrand competition will be harmed in the long term: consumers would be unable to choose other brands at lower prices; (3) vertical restraints are more likely to support retailer driven cartels than manufacturer driven ones because manufacturers rarely have the financial incentive; and (4) that if the alleged vertical facilitator has market power, it is much more likely that its conduct is anticompetitive because it prevents consumers or other firms from dealing with someone else.

Apple’s conduct was anticompetitive under each and every one of these guidelines, whereas Mack’s conduct was anticompetitive under only two of them. It is this Note’s contention, therefore, that courts may have enough experience with the scenarios described in Leegin’s guidelines to apply the per se rule when a vertical actor’s conduct fails under each of the four principles. Toledo and Apple, therefore, are distinguishable on the economic effects that their respective actions produced; limiting the per se rule to conduct that fails under all of Leegin’s guidelines may thus provide a framework that retains rule of reason as the primary inquiry while saving the courts from unnecessary investigation in particularly anticompetitive cases.

THE GLOBAL HARMONY OUROBOROS: WIPO’S MISSION STATEMENT AND ITS FUTILE ROLE IN AN ECONOMIC LEGAL SYSTEM

Linda M. Lee

Part II of this Note will provide a historical overview of globalization, the development of international trademark rights, and the formation of WIPO. As part of this discussion, a background of China’s economic growth and the development of its IPR system will also be explored. Part III will delve into the current issues associated with trademark protection in China following its accession to numerous WIPO treaties and the overhaul of its own legal system. In addition, this Part will evaluate the disparities of China’s divergent economy, culture, and society in order to illustrate the impossibility of attaining global harmonization. In Part IV, the futility of WIPO’s undertaking will be assessed and an approach based solely on an economic legal system will be proposed. Finally, in Part V, this Note will conclude that removing WIPO as an administrator of international IPR will allow for better cooperation among foreign nations in the globalized community.

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