All articles — page 6

The full archive in alphabetical order, across every field.

Payload Review and the Gap in Mission Authorization

The FAA reviews a payload proposed for launch only where no other federal agency licenses it, and the review produces a favorable or unfavorable determination rather than an authorization to operate. Because no statute assigns general authority to authorize and supervise activities in orbit, novel missions are reached indirectly through communications licensing, launch conditions, or interagency pressure, which is the gap in the treaty duty of continuing supervision.

6 min readFederal law

Antitrust & Competition

Per Se Rules and the Rule of Reason

Section 1 reaches only unreasonable restraints. A narrow set of naked horizontal agreements — price fixing, bid rigging, market and customer allocation — is unlawful per se, without proof of market power or effect. Everything else is judged under the rule of reason, a burden-shifting inquiry into actual competitive effect in a defined market. An abbreviated or quick-look analysis sits between them for restraints whose harm is obvious but whose category is not.

7 min readFederal law

Franchise & Distribution

Personal Guaranties and Who Is Left Owing

A franchise guaranty is ordinarily a continuing, unconditional, joint and several undertaking by the owners to answer for every obligation of the franchisee entity, with the usual suretyship defenses waived. It does not expire when the outlet closes or when the franchise is sold; release requires an express written instrument. Where a spouse with no ownership interest must sign, federal credit law is implicated, though courts divide on whether a guarantor is protected.

6 min readFederal law

Franchise & Distribution

Post-Term Covenants and Whether They Hold

Post-term covenants restrict a former franchisee from operating a competing business for a defined period within a defined area, and are paired with restrictions on soliciting customers and employees. Most states test them for reasonableness in duration, geography and scope against the franchisor's legitimate interest, applying a standard closer to the sale of a business than to employment. A few states void such restraints entirely.

6 min readState law

Antitrust & Competition

Premerger Notification: Thresholds and the Waiting Period

Section 7A of the Clayton Act requires both parties to a qualifying acquisition to file notification and observe a waiting period before closing. Reportability turns on a commerce test, a size-of-transaction test and, for transactions in the middle band, a size-of-person test, all indexed to changes in gross national product. The waiting period runs thirty days for most deals and fifteen for cash tender offers and certain bankruptcy sales.

6 min readFederal law

Antitrust & Competition

Price Discrimination Under the Robinson-Patman Act

Section 2 of the Clayton Act, as amended, forbids a seller from discriminating in price between different purchasers of commodities of like grade and quality where the effect may be substantially to lessen competition or injure competition with the person granting or receiving the benefit. The claim requires two contemporaneous consummated sales of goods to different buyers at different prices. Cost justification and a good faith effort to meet a rival's equally low price are complete defenses.

7 min readFederal law

Immigration & Naturalization

Prior Refusals and the Record That Follows an Applicant

Consular regulations require every visa application to be either issued or refused, so a case held for further processing is recorded as a refusal even when it is later approved. Refusals are entered in a shared database available to all posts and to inspecting officers. Later applications ask about prior refusals, and an answer that treats an incomplete-application refusal as no refusal at all creates a far larger problem than the original outcome did.

6 min readFederal law

Antitrust & Competition

Private Antitrust Suits: Standing, Indirect Purchasers and Treble Damages

Any person injured in business or property by an antitrust violation may recover threefold damages, costs and a reasonable attorney's fee. The claimant must show antitrust injury — harm of the type the antitrust laws were meant to prevent, flowing from what makes the conduct unlawful — and must satisfy standing factors concerned with directness and duplicative recovery. Under federal law only direct purchasers may recover an overcharge, though many states permit indirect purchasers to sue.

7 min readFederal and state

Immigration & Naturalization

Proclamations That Restrict Entry and the Exceptions in Them

The immigration statute authorizes the President, on finding that the entry of any class of aliens would be detrimental to the interests of the United States, to suspend that entry by proclamation for such period as is considered necessary. A proclamation issued under it restricts entry rather than altering eligibility, and its practical reach is set by its exception clauses, its treatment of visas already issued, and any case-by-case waiver standard written into the text.

6 min readFederal law

Art & Cultural Property

Provenance and the Limits of Buying in Good Faith

Under the maxim nemo dat quod non habet, a thief has no title and can pass none, so every later transfer is void however honest the buyers were. The Uniform Commercial Code softens this only where the owner voluntarily parted with possession: a transferor with voidable title can pass good title to a good faith purchaser for value, and entrusting goods to a merchant who deals in goods of that kind empowers that merchant to transfer the owner's rights to a buyer in ordinary course.

6 min readState law

Antitrust & Competition

Proving an Agreement From Parallel Conduct

Section 1 reaches only concerted action, so a plaintiff must prove an agreement rather than similar behavior. Conscious parallelism — rivals independently matching one another in a market where each expects the others to respond — is lawful. To get past that, a plaintiff needs evidence tending to exclude the possibility of independent action, usually assembled from plus factors: communications, conduct against unilateral self-interest, abrupt uniform changes and pretextual explanations.

6 min readFederal law

Tribal & Indian Law

Public Law 280 States and What the Transfer Did

Public Law 280 conferred on named states the criminal jurisdiction over offenses in Indian country that the United States had held, and gave state courts jurisdiction over civil causes of action between Indians or to which Indians are parties. It did not transfer general civil regulatory or taxing authority, did not end tribal jurisdiction, and carried no funding. Later amendments require tribal consent for any further assumption and permit a state to retrocede.

5 min readFederal and state

Fields of law

This journal

All articles — page 6

Payload Review and the Gap in Mission Authorization

Per Se Rules and the Rule of Reason

Personal Guaranties and Who Is Left Owing

Post-Term Covenants and Whether They Hold

Premerger Notification: Thresholds and the Waiting Period

Price Discrimination Under the Robinson-Patman Act

Prior Refusals and the Record That Follows an Applicant

Private Antitrust Suits: Standing, Indirect Purchasers and Treble Damages

Proclamations That Restrict Entry and the Exceptions in Them

Provenance and the Limits of Buying in Good Faith

Proving an Agreement From Parallel Conduct

Public Law 280 States and What the Transfer Did