American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old-but-new procedural tool that significantly disrupts decades of worked-out doctrinal equilibria — and, now comprising a shocking 40% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines. 
MDLs are modern because they see the need for a national, not state-centered, approach to questions of procedure. They disrupt traditional legal relationships, turning judges and lawyers into collaborative partners in practical problem solving and creating a new judicial elite among the federal judges chosen to lead them. MDLs exemplify procedural exceptionalism — a type of litigation that judges insist is too different from case to case to be managed by the transsubstantive values that form the very soul of the Federal Rules. Instead, judges develop their own special MDL procedures — yet this new kind of procedural law is rarely treated as precedential or even subject to customary appellate review. 
These deviations from the “textbook” have caused academic anxiety. Scholars worry about lack of transparency, loss of the individual claim, and the dearth of uniform procedural law. Many judges who try MDLs, on the other hand, view them favorably — often as the only way to ensure access to court for massive claims on a national scale — and also as highly enjoyable judicial work. This Article relies on interviews with MDL judges to offer a new set of counterpoints to the academic criticism. 
The Article also sets MDLs in the broader context of “unorthodox lawmaking” — a phenomenon documented in the legislative context but not yet in procedure. MDLs, like omnibus legislation and other forms of nontraditional lawmaking, are responses to pressure on the system, some way in which legal rules have not kept up with the obstacles of modern times when the consensus is that Congress and the courts must nevertheless take action. All of these unorthodox vehicles thus tend to operate outside the relevant rules, raising questions about the value of the rules themselves. They raise the question: What do we care about most? Is it access to court (or, analogously, the production of legislation)? Or is procedure for procedure’s own sake the more important value — even if upholding that value means fewer cases get resolved? MDLs highlight this tension. They are likely more symptom than cause of procedure’s modern challenges.

/pdf/unorthodox-civil-procedure-modern-multidistrict-litigation-s-32v6zdfzj7.pdf

Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure

The National Football League (“NFL”) is an unincorporated association of 32 separately owned professional football teams. The teams each own their name, colours, logos, trademarks and associated intellectual property. The teams formed National Football League Properties (NFLP) to exploit this intellectual property. Initially, NFLP granted non-exclusive licences to various sports manufactures (including American Needle) to manufacture and sell NFL team labelled sportswear. In December 2000, the teams authorised NFLP to grant exclusive licences, one of which was granted to Reebok International Ltd to produce and sell trademarked head wear for all 32 teams. American Needle Inc, whose licence had not been renewed at the material time, challenged the NFLP’s use of an exclusive licence as contrary to section 1 of the Sherman Act 1890 which makes “every contract, combination…or, conspiracy, in restraint of trade” illegal. The respondents argued that the nature of section 1 of the Sherman Act is that it requires two or more parties to participate in the stated manner and thus, given that the NFLP was a “single entity” a claim of anti-competitive activity could not be brought, save under section 2 of the Sherman Act (which addressed monopolisation or conspiracy to monopolise). American Needle Inc countered that the NFLP was not in form a “single entity”—noting that the courts have long been alert to sports leagues’ efforts to label various collective commercial arrangements as single entity; but rather it was in substance an arrangement that sought to veil ongoing concerted actions by separate and multiple parties with different corporate and economic interests. Guided by its decision in Copperweld Corp v Independence Tube Corp 467 US 752 (1984), the US Supreme Court held against the single entity argument and remitted the matter to the lower courts to determine whether a section 1 violation had occurred. Importantly, the US Supreme Court also acknowledged, as guided by NCAA v Board of Regents 468 US 85 (1984, that in order to have and maintain a sports league many forms of coordination and cooperation between and among competitors would have to take place. Whether such “coordination” might necessarily entail a violation of the Sherman Act would have to be assessed in light of the Rule of Reason i.e., only contracts or combinations that unreasonably restrain trade should be subject to antitrust law.

American Needle Inc v NFL 130 S Ct 2201 (2010)

American Needle, Inc. v. National Football League decisively rejected the argument that a professional sports league is a “single entity” exempt from Section I antitrust scrutiny, yet this immunity argument had barely been interred before some commentators sought to articulate alternative grounds for immunizing sports leagues and other joint ventures from scrutiny. This Essay argues that these new theories of sports league immunity – one of them based on American Needle itself, and another rooted in an enigmatic statement by the Supreme Court, in Texaco Inc. v. Dagher, about the “core functions” of joint ventures – are inconsistent with both American Needle and with bedrock principles of antitrust law.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1947110_code1607284.pdf?abstractid=1947110&mirid=1

Is There Life after Death for Sports League Immunity? American Needle and Beyond

/pdf/is-there-life-after-death-for-sports-league-immunity-x3sbwv7q1w.pdf

Is There Life after Death for Sports League Immunity - American Needle and Beyond

The general jurisdiction decision Goodyear Dunlop Tires Operations, SA v Brown, received relatively little attention when it was handed down on the final day of the Supreme Court’s October 2010 Term, but it will likely have far-reaching effects on both the doctrine and theory of general jurisdiction Goodyear added what appears to be a significant new hurdle, requiring that the defendant corporation’s “affiliations” with the forum state be sufficient “to render [it] essentially at home in the forum State” This standard undermines a great deal of lower court authority, and in particular seems inconsistent with the notion — widely accepted in lower court cases, though never endorsed by the Supreme Court — that a corporation is subject to general jurisdiction wherever it is “doing business” This article argues that Goodyear casts significant doubt on the ongoing validity of doing business jurisdiction, and in doing so goes a long way toward putting general jurisdiction, for the first time, on a solid theoretical footing In particular, it contends that doing business jurisdiction, contrary to common assumptions, has no meaningful historical pedigree, and that it cannot be justified under any cogent jurisdictional theory Because general jurisdiction by definition involves claims that are unrelated to the state, it can be justified only when the defendant is so closely tied to the state as to create legitimate authority over all of the defendant’s worldwide conduct Such all-encompassing authority has traditionally been recognized only with respect to a state’s citizens or residents — an understanding that corresponds well with the Court’s new limitation of general jurisdiction to where the defendant is “at home” Merely doing business in a state gives the state legitimate authority over the in-state conduct, but no legitimate interest in asserting authority over activities unrelated to the state Such authority is, and should be, reserved for circumstances in which the forum state can fairly be regarded as the corporation’s home

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2053514_code1607284.pdf?abstractid=2053514&mirid=3

Meir Feder

Papers

Is There Life after Death for Sports League Immunity? American Needle and Beyond

Is There Life after Death for Sports League Immunity - American Needle and Beyond

Goodyear, 'Home,' and the Uncertain Future of Doing Business Jurisdiction