Copyright (c) 2008 All rights reserved. http://works.bepress.com/lloyd_anderson Recent documents in Lloyd C. Anderson en-us Fri, 25 Jan 2008 02:08:16 PST 3600 http://works.bepress.com/lloyd_anderson/15 http://works.bepress.com/lloyd_anderson/15 Wed, 23 Jan 2008 10:51:28 PST The quest for social justice in America requires creative approaches to the enforcement of basic legal rights. As the Supreme Court continues to diminish the role of the federal courts as a catalyst for reform, the need for innovative solutions has become increasingly urgent. The consent decree, a written settlement formulated by the parties and approved by the judge, is one such innovative alternative. The parties themselves are the primary catalysts for change in this process. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/14 http://works.bepress.com/lloyd_anderson/14 Wed, 23 Jan 2008 10:37:40 PST Persons seeking structural reform of powerful institutions have increasingly used public law litigation' in their continuing and multi-faceted struggle to realize the ideal of human dignity in the administration of justice. Such complex civil litigation is invariably emotional and can polarize whole communities: the plaintiffs raise grievances essential to their economic and spiritual welfare, while the defendants see such suits as affronts to their carefully-considered, even-handed professional and administrative judgments. In the ensuing all-out legal warfare, the parties may expend extravagant amounts of money and time before the issues are finally decided. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/13 http://works.bepress.com/lloyd_anderson/13 Wed, 23 Jan 2008 10:34:44 PST Law students ought to graduate from law school with at least a minimum degree of professional competence. They should be able to begin the practice of law with a rudimentary knowledge of what a civil litigator must do to represent a client competently.8 Traditional legal education teaches by providing a vicarious experience: the students read judicial opinions and analyze the legal rules and principles upon which a decision is based. Properly done, this method does an admirable job of teaching legal concepts and developing essential analytical skills. All too often, however, law students armed with these concepts and skills enter the practice of law and find it an alien world in which they feel ill-equipped to represent a client competently in civil litigation. Lloyd C. Anderson Legal Education http://works.bepress.com/lloyd_anderson/12 http://works.bepress.com/lloyd_anderson/12 Wed, 23 Jan 2008 10:14:25 PST Courts in the United States wield enormous power over other American institutions. In recent years, federal judges have used this power to decree, often with the consent of the parties, extensive structural reform in such diverse areas as employment practices, prison conditions, environmental cleanup, and the treatment of mentally ill or retarded persons. These court orders often affect the daily lives of ordinary citizens, provoking heated debate and passionate rhetoric within the community, ranging from claims that federal courts carry the moral mandate of the Almighty to angry cries that unelected federal judges are ruining local institutions. Critics and advocates of such consent decrees agree, however, on one point: Judges are powerful. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/11 http://works.bepress.com/lloyd_anderson/11 Wed, 23 Jan 2008 10:10:50 PST This article explores the arguments concerning the propriety of the district court's role in Microsoft and proposes a new and more appropriate role for courts confronted with similar problems. Part II reviews the history of abuse in antitrust consent decrees that prompted Congress to enact the Tunney Act and discusses the Act's provisions for judicial review of such decrees. Part III discusses the cases construing the scope of judicial review under the Act and the courts' role in approving proposed decrees, focusing especially on the breakup of the AT&T monopoly. Part IV analyzes the Microsoft case in detail and argues that while Judge Sporkin clearly exceeded the proper scope of judicial review, the court of appeals has formulated an excessively narrow standard of judicial review. Part V addresses the broader policy questions presented by cases like Microsoft, such as whether the Tunney Act procedure is working well in achieving its goals and what the proper scope of judicial review should be. The article argues that judicial review should be flexible, based upon factors such as the extent to which the decree achieves the relief sought in the complaint, the size of the defendant and complexity of the case, history of abuse, the extent of litigation prior to settlement, evidence of undue political influence, and the impact of the decree on third parties, the economy, and the public at large. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/10 http://works.bepress.com/lloyd_anderson/10 Wed, 23 Jan 2008 09:52:03 PST In 1949, the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp. created the collateral order doctrine of federal appellate jurisdiction. Congress has established the statutory requirement that a litigant has the right to appeal only a "final decision," which the Court has defined generally as a final judgment that "ends the litigation on the merits." Over the years, however, the Court has crafted a number of exceptions to the final judgment rule by way of artful construction of the statutory term "final decision." The Court in Cohen construed "final decision" to permit immediate appeal of decisions that did not end the litigation but that conclusively determined claimed rights that were separate from the merits and that were effectively unreviewable after final judgment. The Court described this new doctrine as applying only to a "small class" of decisions. For some years this was an accurate description; the collateral order doctrine was confined to very narrow circumstances in relatively few cases.Beginning in the early 1960s, however, the Court began the process of expanding the collateral order doctrine, culminating in the 1985 decision of Mitchell v. Forsyth. This doctrinal expansion has been replete with inconsistent opinions causing unacceptable confusion over which nonfinal rulings are appealable. This results in delay and disruption of ordinary trial processes and the expenditure of appellate resources. One Justice finally was led to complain that "our finality jurisprudence is sorely in need of limiting principles." The judges of the federal circuits joined the outcry, charging that the newly expanded, but inconsistent, collateral order doctrine had caused a "litigation explosion," fostered "regrettable expense and delay," and led judges into a "maze" of confused and contradictory doctrinal minutiae. In 1988, amid mounting concern over congestion, delay, and expense in the federal court system, including dissatisfaction with the collateral order doctrine, Congress created a Federal Courts Study Committee composed of judges, attorneys, and members of Congress. The committee submitted its report to Congress in 1990. One of its many recommendations was to authorize the Supreme Court to promulgate rules clarifying which decisions should be characterized as final for purposes of appellate jurisdiction. Congress promptly passed legislation authorizing the Court to do so. Seven years have since passed and no rules for clarifying which decisions should be characterized as final have yet been proposed, much less adopted. A proposal to address the problems created by the final judgment rule, including the collateral order doctrine, is not even on the agenda of the Advisory Committee for the Federal Rules of Appellate Procedure. Why has this rulemaking authority remained dormant for so long, with no activity in sight, and what, if anything, should be done?Part I of this Article gives a brief overview of the statutory basis for federal appellate jurisdiction and describes the early formulation of the collateral order doctrine from its genesis in Cohen through the narrow and infrequent applications of Cohen in the decades immediately thereafter. Part II provides a detailed narrative of the expansion of the collateral order doctrine, from its roots in a 1963 decision, Construction Laborers v. Curry, to its culmination in 1985 in Mitchell, followed by calls for reform in the late 1980s. Part III describes the problems, particularly associated with the collateral order doctrine, that led Congress to grant the Supreme Court rulemaking authority to clarify which decisions are sufficiently final to confer appellate jurisdiction. Part IV evaluates the Court's recent collateral order jurisprudence and contends that the problems-explosion of purely procedural litigation over what orders are appealable-have only gotten worse, particularly in the area of qualified immunity. Part V proposes four alternative remedies: the Court should either return to the narrow collateral order doctrine of Cohen; candidly recognize that its current doctrine is best described as a flexible, multifactor test closely resembling a doctrine of discretionary interlocutory appeal; overrule the Forsyth decision that has spawned the most procedural litigation; or promulgate a new rule permitting only one qualified immunity appeal per case. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/9 http://works.bepress.com/lloyd_anderson/9 Wed, 23 Jan 2008 09:32:38 PST In this Article, Professor Lloyd Anderson examines the recent decision M.L.B. v. S.L.J., in which the United States Supreme Court held that due process and equal protection converge to require that states cannot require indigent parents who seek to appeal decisions terminating their parental rights to pay court costs they cannot afford. Noting that this decision expands the constitutional right of cost-free appeal from criminal to civil cases for the first time, Professor Anderson discusses the characteristics a civil case should have in order to qualify for such a right. Professor Anderson proposes a number of other civil cases, primarily those in which a fundamental right is at stake, in which poor people should also have a constitutional right to appeal without payment of court costs. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/8 http://works.bepress.com/lloyd_anderson/8 Wed, 23 Jan 2008 07:50:13 PST People negotiate agreements "in the shadow of the law," whether in the private ordering of affairs such as drafting contracts or in the public forum of settling lawsuits. A reverse phenomenon, however, has gone largely unnoticed: judges occasionally declare law in the shadow of negotiated settlements. In interpreting the terms of a consent decree when the parties themselves cannot agree on what obligations such terms impose, the judge may determine that both the words and the parties' own intentions are so ambiguous that the words must be interpreted in light of the substantive law that gave rise to the plaintiffs' claim. This writer has previously contended that the meaning of an ambiguous term should be determined, in part, "by reference to the constitutional or statutory rights sought to be vindicated in the litigation." Even if the law is somewhat uncertain, part of the judge's interpretive effort should be to determine which interpretation "will best serve the policies of the relevant law." It appears that the federal courts, at least, have adopted this position.This article explores the history of federal judicial interpretation of consent decrees and advocates a restrained approach to interpreting ambiguous settlement terms in light of the underlying substantive law. The proposed approach does not eliminate such a method of interpretation, but avoids the misguided effort of the D.C. Circuit in Microsoft I. Part I reviews the standards for interpretation of consent decrees that have emerged in the federal courts over the past three decades and sets forth a model of interpretation that is consistent with the emergent caselaw. Part II examines the problem of interpretation that arose in Microsoft I and analyzes the difficulties posed by the D.C. Circuit's declaration of substantive antitrust law in that case. Part III discusses the policy considerations that should be weighed in determining the extent to which judges should declare law "in the shadow of" negotiation. The Conclusion argues that it is appropriate for courts to interpret ambiguous terms in consent decrees in light of underlying substantive law if other extrinsic evidence of the parties' intent surrounding the negotiation of the terms does not clearly resolve the issue. If the issue of law is not properly before the court, however, or if the law is not reasonably clear, courts should not decide what the law is, but instead should interpret ambiguous terms based solely on other extrinsic evidence of the parties' intent. Furthermore, if the law is clear, the court should follow it rather than decide what it thinks the law should be. Lloyd C. Anderson Consent Decrees http://works.bepress.com/lloyd_anderson/7 http://works.bepress.com/lloyd_anderson/7 Wed, 23 Jan 2008 07:37:18 PST Lloyd C. Anderson Prison Reform http://works.bepress.com/lloyd_anderson/6 http://works.bepress.com/lloyd_anderson/6 Wed, 23 Jan 2008 07:13:57 PST A series of decisions by the U.S. Supreme Court in the past decade concerning Congress's power to regulate the jurisdiction of the federal courts requires a fresh look at the extent to which the Constitution limits congressional authority to strip the federal courts of jurisdiction and to direct the exercise of existing jurisdiction. Nearly half a century ago, Professor Henry Hart raised the question whether conferring upon Congress unlimited control of judicial jurisdiction is consistent with the rule of law and government under a written constitution. With respect to legislation eliminating jurisdiction, Hart expressed the view that legislative exceptions to the Supreme Court's Article III appellate jurisdiction "must not be such as will destroy the essential role of the Supreme Court in the constitutional plan," whereas Congress has plenary, unlimited power to wrest jurisdiction from the inferior federal courts. On the distinct issue of Congress's power to direct judges to exercise existing jurisdiction in a particular manner, Hart proposed that Congress cannot eliminate all judicial authority to afford any remedy for particular rights; so long as it leaves open some remedy, however, the Constitution imposes no barrier to Congress's freedom to prohibit those remedies it deems undesirable. Hart also asserted that Congress does not have unlimited power to order a court how to decide a case, indicating that Congress cannot direct a result contrary to judicial interpretation of the Constitution. Hart's theses gained new prominence in the 1980s when opponents of controversial Supreme Court decisions on school prayer, abortion, school desegregation, and the military draft introduced bills either stripping the federal courts of jurisdiction over such cases, or prohibiting the use of certain remedies. Such proposed legislation sparked a fierce academic debate over congressional power to regulate jurisdiction. Professor Lawrence Sager, for example, argued that such legislation was unconstitutional because it prevented the vindication of substantive constitutional rights. While all of these bills died in Congress, the academic debate continued to rage for a decade. Some eventually expressed frustration with the "unending" nature of the debate, characterizing it as lacking any practical value once the jurisdiction-stripping bills expired, 10 and "choking on redundancy." The critics of the debate, however, were soon proven wrongby the Supreme Court. In Felker v. Turpin and Reno v. American-Arab Anti-Discrimination Committee, the Court wrestled with the age-old question of Congress's power to eliminate federal court jurisdiction of certain types of cases. In Felker, the Court upheld a provision depriving it of appellate jurisdiction over the dismissal of a "second or successive" habeas corpus petition, on the ground that Congress had not deprived it of all jurisdiction because the Court retained original jurisdiction over such cases. In Reno, the Court held that legislation severely restricting judicial review of alien deportation proceedings was constitutional because Congress had not eliminated all such judicial review. The Court in both cases left unresolved the overriding question presented by the jurisdiction-stripping bills of the early 1980s-whether Congress has the power to completely obliterate all jurisdiction over certain types of cases. In three other cases, there arose the recurring issue of Congress's power to direct the manner in which federal courts exercise their existing jurisdiction. In Robertson v. Seattle Audubon Society and Miller v. French, the Court ruled that Congress has the power to dictate decisions in pending cases so long as it alters the underlying substantive law. In Plaut v. Spendthrift Farm, however, the Court imposed a new limitation on the power to regulate jurisdiction, ruling that a congressional attempt to direct the reopening of final judgments violates the doctrine of separation of powers. The debate is thus not academic at all. Congressional hostility to some federal court decisions appears to be a fact of American political life. Since Congress cannot directly overrule a judicial decision interpreting the Constitution, members of Congress engage in periodic attempts to restrict judicial jurisdiction as a means of reversing the effects of disfavored constitutional decisions. The provisions of Article III, Section 1 conferring appellate jurisdiction on the Supreme Court, subject to "Exceptions and Regulations" created by Congress, and granting power to Congress to "ordain and establish" lower federal courts represent a compromise at the Constitutional Convention engineered by James Madison. It was designed to strike a proper balance between the need for an independent federal judiciary to enforce supreme federal law and the competing need to ensure political control over the judiciary. These recent decisions call into question whether the Court has maintained a proper balance between the competing needs for political control over an unelected judiciary and for the rule of law by an independent judiciary.Part I of this article will discuss the history of congressional control of jurisdiction and the theses of Professor Hart. Part II will analyze the academic debate that arose from the jurisdiction-stripping proposals of the early 1980s. Part III will evaluate the quintet of cases decided in the past decade. The article concludes that, while Felker, Reno, Plaut and Robertson were correctly decided and reflect a proper compromise between majoritarian rule and judicial independence, the decision in Miller-upholding the automatic stay provision of the Prison Litigation Reform Act (PLRA)-is wrong and constitutes a severe danger to the long-established and healthy compromise between the competing values of political control of the judicial branch and judicial guarantees of the supremacy of federal law. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/5 http://works.bepress.com/lloyd_anderson/5 Wed, 23 Jan 2008 07:07:50 PST Nearly thirty years ago, the United States Supreme Court held in Zahn v. International Paper Co., that every member of a federal court class action asserting claims based solely upon state law must have a claim in excess of the minimum amount in controversy required by the statute conferring federal subject matter jurisdiction based upon diversity of citizenship. The Zahn decision had the effect of eliminating federal jurisdiction over small-claim state-law class actions, thus requiring such actions to be filed in state court. The prestigious American Law Institute (ALI) is now considering a proposal to recommend to Congress that it abrogate the Zahn decision through legislation that would grant federal courts supplemental jurisdiction over claims of class members, so long as the named plaintiffs' claims exceeded the minimum jurisdictional amount. The current supplemental jurisdiction statute provides federal district courts with jurisdiction over nonfederal claims that are substantially related to federal claims, but it does not expressly extend such jurisdiction to class actions. The ALI proposal, however, would replace the current statute and, in the process, make it explicit that supplemental jurisdiction extends to class actions. This proposal, if adopted by Congress, would reverse three decades of class action jurisprudence and foster the return of small-claim class actions based upon state law to federal court, either by plaintiffs who choose to file suit in federal court or by defendants who elect to remove such actions, originally filed in state court, to federal court. The ALI proposal to overturn Zahn is embedded in a broader proposal to address perceived problems with the current supplemental jurisdiction statute, and it must be understood in that context. Congress enacted the current statute (28 U.S.C. § 1367) in 1990, in response to the Supreme Court's decision in Finley v. United States. In Finley, the Court held that federal courts may not exercise pendent jurisdiction over claims by plaintiffs that lack an independent basis of jurisdiction, even if such claims are closely related to claims by other plaintiffs over which federal courts do have jurisdiction (known as pendent party jurisdiction). The Court reasoned that Congress had not conferred statutory authority to exercise pendent party jurisdiction. Pendent jurisdiction, and its sister ancillary jurisdiction, were long-established, judicially-created doctrines that were designed to facilitate joinder of related claims and parties, as a means of efficiently packaging litigation in a single forum. The Finley decision, however, did not merely eliminate pendent party jurisdiction. It also cast doubt upon the legitimacy of pendent and ancillary jurisdiction in their entirety, because they were judge-made doctrines with no statutory basis. Thus, out of concern that the court had upset well-settled understandings of federal jurisdiction in a way that threatened efficient joinder of claims and parties, Congress soon enacted the current statute. This statute was intended to restore pre-Finley jurisdictional law, codify the doctrines of pendent and ancillary jurisdiction under the common terminology of supplemental jurisdiction, and abrogate the holding in Finley. A storm of academic criticism quickly engulfed the infant statute. Commentators charged that it unduly restricted the use of supplemental jurisdiction in diversity cases and that, read literally, it would abrogate well-settled rules of jurisdiction in diversity cases and prevent efficient packaging of federal diversity cases. Over the next decade, federal courts of appeals rendered conflicting interpretations of the statute. In particular, a difference of opinion emerged over the effect of the new statute on small-claim state-law class actions. In In re Abbott Laboratories, the Fifth Circuit adopted the literal reading of the statute and held Congress had abrogated Zahn. In contrast, the Tenth Circuit in Leonhardt v. Western Sugar Co., refused to read the statute strictly, concluding that Congress did not intend to overrule Zahn. The criticisms and split of judicial authority led to calls to amend the statute, and the ALI took up the challenge. Its latest tentative proposal would completely reconceptualize supplemental jurisdiction in "claim-specific" terms, and codify much of the prior law of supplemental jurisdiction in diversity cases. At the same time, it would abrogate other pre-existing jurisdictional law, generally expanding the scope of diversity jurisdiction. Specifically, the ALI proposal would expressly abrogate Zahn, thus permitting plaintiffs--or defendants on removal--to channel small-claim state-law class actions into federal court. The thesis of this Article is that this particular proposal lacks sufficient justification at best, and at worst reflects profound disrespect for the proper role of state courts, in our constitutional system, to adjudicate matters of state law. As such, the ALI should drop this particular proposal from any supplemental jurisdiction statute it proposes to Congress, and, if the ALI retains this proposal in a recommendation to Congress, Congress should reject it.Part I of this Article describes the law of diversity jurisdiction that provided the backdrop for the decision in Zahn and analyzes the Zahn decision itself. Part II examines the genesis of the current supplemental jurisdiction statute, from its common law antecedents of pendent and ancillary jurisdiction, through the controversial decision in Finley, to its current form. Part III explains the ALI proposal to amend the statute by reconceptualizing supplemental jurisdiction in claim-specific terms, codifying some jurisdictional doctrines, and abrogating others, including Zahn. Part IV analyzes the justifications for overruling Zahn and rechanneling small-claim state-law class actions into federal court. Part IV also provides a rebuttal of each such justification, especially the notion that federal courts are superior to state courts in managing complex, multi-state litigation. The Article concludes that there is insufficient justification for abrogating Zahn, and that doing so contravenes the constitutional structure of our government. Thus, this portion of the ALI proposal should be rejected. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/4 http://works.bepress.com/lloyd_anderson/4 Wed, 23 Jan 2008 06:58:47 PST Should an attorney whose services have conferred a nonmonetary "benefit" upon a person whom the attorney does not represent, be paid a fee from that person's funds? There is a seductive appeal in the notion that the beneficiary of legal services should pay the attorney's fee. Is it not "unjust" for that person to receive a "benefit" free of cost? Has not the attorney performed a valuable public service by ensuring that important legal rights were protected? Consider two different scenarios that could both present this issue. Case A: some beneficiaries of a trust sue the trustee and the other beneficiaries to clarify ambiguous terms in the trust instrument. The reasonable legal fees incurred by the trustee will be paid from the assets of the trust. Should the court order that fees incurred by the plaintiff beneficiaries also be paid from the trust? Case B: a local mental health agency petitions to appoint a guardian for a mentally and emotionally incompetent person, displacing the decision-making authority held by the incompetent's personal representative pursuant to a power of attorney. The agency's motive is to appoint a guardian who is amenable to having the incompetent placed in a community group home. The legal fees of the personal representative will be paid from the incompetent's assets. Should the court order that the fees of the agency also be paid from the incompetent's assets? Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/3 http://works.bepress.com/lloyd_anderson/3 Tue, 22 Jan 2008 14:11:17 PST Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional. 'Twas not always so. Ratification of the Twenty-first Amendment to the U.S. Constitution in 1933 ended the era of nationwide Prohibition of the production, sale and transportation of alcoholic beverages in this country. It also prohibited the import of alcohol into any state in violation of that state's laws. For several decades after ratification, the U.S. Supreme Court afforded this provision a literal interpretation based upon its text and not subject to limitations imposed upon state authority by other constitutional provisions. Specifically, the Amendment was held to be "not limited by the commerce clause." Under this view, although the Commerce Clause of the Constitution had long been construed as forbidding state discrimination against interstate commerce absent a compelling justification, this Amendment carved out a unique niche for alcohol: states had plenary authority to regulate imports of such products, regardless of the impact such regulation had on interstate commerce.The era of literalism ended when the Court decided that it was "patently bizarre" to conclude that the Twenty-first Amendment had "repealed" the Commerce Clause; to say that the Amendment was "not limited" by the Commerce Clause would be to say that Congress had lost its authority to regulate interstate commerce in alcohol, at least to the extent that Congress lacked power to regulate such commerce in ways that were inconsistent with state regulation. Instead, the Court adopted a new position that the two constitutional provisions should be read in harmony with each other, not in opposition to each other. In order to reconcile the commands of the Twenty-first Amendment and the Commerce Clause, the Court fashioned a rule: state laws that discriminate against interstate commerce in alcohol are unconstitutional unless they are closely related to one of the powers reserved to the states by the Twenty-first Amendment. As this legal evolution was occurring, forces of economic change were sweeping the country. After Prohibition ended in 1933, individual states enacted various forms of regulation of commerce in alcohol. The most common form of regulation is the "three-tiered" system, in which producers of alcohol cannot sell their products directly to consumers. They must sell their products to licensed wholesalers, which in turn must sell to licensed retailers, which sell to the consumer. In the early years after Prohibition ended, there was explosive growth in the number of wholesalers, resulting in vigorous competition at the wholesale tier. In recent decades, however, there has been massive consolidation in this industry and market power has become concentrated in relatively few firms. By contrast, the number of small, often family-owned wineries has skyrocketed. Individually, the production of these small wineries is small. The large wholesalers tend to lack interest in marketing such wines because they need large-volume sales in order to remain competitive. Some states enacted legislation allowing wine producers within the state to ship their products directly to consumers, in order to encourage a domestic wine industry. Lacking a satisfactory market for their wines in the three-tier system, small wineries turned to direct sales, not only to consumers within their own states, but also to consumers in other states that lacked their own high-quality wine industries. Such sales were facilitated by yet another economic change: the growth in telecommunications, especially the Internet. Now a wine lover in one state could simply pick up the telephone or hop on the Internet and purchase wine produced in another state. The producer could ship the wine directly to the consumer via common carrier. Indeed, retailers in wine-producing states jumped on the bandwagon and also shipped wine directly to consumers in other states. Vested interests in the three-tiered systems, especially wholesalers, sensed that such direct shipment posed a threat to their market power and demanded that states enforce their laws that prohibited importation of alcohol, including wine, other than through licensed wholesalers. The wine industry reacted to this pressure with litigation seeking to overturn the ban on direct shipment to consumers in those states that prohibit direct shipment of wine by out-of-state producers but permit in-state wine producers to do so. As of this writing, lower federal courts, including five appellate circuits, have rendered conflicting rulings on the validity of such laws. Since there is already a conflict among the circuit courts of appeal on an important constitutional issue and there is no end in sight to this litigation, the direct shipment issue is a prime candidate for review by the Supreme Court. The thesis of this Article is that states which presently prohibit direct shipment of wine to consumers from out-of-state sources but permit such direct shipment from in-state sources should now give serious consideration to repealing their bans on direct shipment of wine from out-of-state sources. The resolution of this issue by the Supreme Court cannot be predicted with certainty, but the Court's current Commerce Clause and Twenty-first Amendment jurisprudence weighs heavily in favor of the argument that differential treatment of direct shipments of wine from out-of-state and in-state sources violates the Commerce Clause and is not closely related to powers reserved to the States by the Twenty-first Amendment. Rather than facing the likely prospect of court-imposed remedies, state legislatures should craft reforms best suited to individual states' needs, such as tying repeal of the ban on direct shipment of wine from out-of-state sources to collection of state taxes on the transaction.Part II of this Article describes the nineteenth century struggle between the Prohibition movement and the alcoholic beverage industry that fostered a complex history of court decisions limiting state authority in this area under the aegis of the Commerce Clause, and congressional attempts to abrogate these decisions. This struggle culminated in the adoption of the Eighteenth Amendment, which established a nationwide regime of Prohibition. Part III discusses the reasons why Prohibition was a failure, thus prompting adoption of the Twenty-first Amendment, and also traces the evolution of the Court's interpretation of that Amendment to the current approach, which seeks to accommodate its principles to the principles of the Commerce Clause. Part IV provides an account of the Court's general treatment of state laws that afford less favorable treatment to interstate commerce than to intrastate commerce. Part V canvasses the current litigation challenging direct shipment laws in various states, and the judicial decisions in those cases. Part VI provides an analysis of the arguments on both sides of the issue and contends that the Supreme Court is likely to hold such laws unconstitutional. The Article concludes that states with such laws should now begin the process of repealing their laws banning direct shipment of wine from out-of-state sources and replacing them with regulatory schemes that permit direct shipment but assure that applicable taxes are paid and other valid state interests are protected. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/2 http://works.bepress.com/lloyd_anderson/2 Tue, 22 Jan 2008 13:25:49 PST Hundreds of aliens and two United States citizens have been detained by the country's military forces without criminal charges on the ground that they are unlawful enemy combatants in the War on Terror. The legality of these detentions was challenged in three separate cases. Taken together, these cases raised three issues: (1) Whether the executive branch has any authority to detain unlawful enemy combatants; (2) whether United States courts have jurisdiction to consider claims by aliens detained outside United States sovereign territory that they are not unlawful enemy combatants; (3) and what process, if any, must be afforded detainees to challenge their unlawful enemy combatant status. Resolution of these issues required the federal judiciary to confront the age-old problem of protecting national security while preserving individual freedoms. When these two fundamental values clash, as they do in the detention trilogy, the judiciary must strike the proper balance. Lloyd C. Anderson Jurisprudence http://works.bepress.com/lloyd_anderson/1 http://works.bepress.com/lloyd_anderson/1 Tue, 22 Jan 2008 13:05:11 PST On June 22, 2004, President Bush signed into law the Antitrust Criminal Penalty Enhancement and Reform Act of 2004. Although no public fanfare accompanied passage of this Act, it contains important provisions designed to restore a meaningful role for the courts in the settlement of antitrust lawsuits brought by the U.S. government.Over three decades ago, in response to concern that such settlements might be tainted by corruption, yet routinely rubber-stamped by the courts, Congress passed the Tunney Act. This Act provided that before entering a consent decree proposed by the government in an antitrust action, "the court shall determine that the entry of such judgment is in the public interest." It also provided that in making the "public interest" determination, the court had the discretion to consider such factors as the "competitive impact" of the proposed judgment; the court, however, was not required to consider these factors. The plain language of the Tunney Act appeared to require judges to make a de novo determination of whether a proposed antitrust consent decree was in the public interest, without giving deference to the executive branch's view that the public interest would best be served by a proposed settlement. Courts, however, declined to adopt a de novo standard of review. Instead, they settled on a narrower standard: a proposed consent decree should be entered if it was "within the reaches of the public interest," giving some deference to the executive branch's view that the proposed settlement was in the public interest. Courts adopted this deferential standard in order to preserve consent decrees as an effective enforcement mechanism. De novo judicial review, in their view, would convert the settlement process virtually into a trial on the merits and thereby strip that process of much of its value. Though deferential, this "within the reaches of the public interest" standard preserved an independent and meaningful role for the courts. Judges emphasized that they were not acting as rubber stamps for the executive branch by approving settlements no matter how tainted or inadequate. Proposed settlements were instead scrutinized to determine whether they were reasonably calculated to protect competition. The great majority of proposed consent decrees were entered after such scrutiny. In a number of cases, however, courts performed an important mediation role by refusing to approve proposed decrees unless appropriate modifications were made. Moreover, it is likely that the very prospect of searching judicial scrutiny was an important deterrent to efforts to use political heft to "swing sweetheart deals." This decades-long consensus unraveled in the 1990s in a string of decisions by the United States Court of Appeals for the District of Columbia. These decisions arose from antitrust actions that the United States brought against the computer software colossus, Microsoft Corporation. The D.C. Circuit ruled that, in making the substantive determination whether a proposed consent decree was in the public interest, judicial review was limited to whether the decree made a "mockery of judicial power." Under this standard, the court's role appeared to be merely ministerial in nature: a proposed decree must be entered with little regard for whether the judge thought it was in the public interest, unless it was so inadequate as to suggest actual wrongdoing by the government. A retreat to the days of judicial rubber-stamping was under way. Congress had acquiesced for decades in the deferential "within the reaches of the public interest" standard of review, but the toothless "mockery" standard represented a major threat to vigorous enforcement of federal antitrust law. The overwhelming majority of government antitrust actions are settled by consent decrees. Such settlements thus are an important-perhaps the single most important-component of antitrust law enforcement. Judicial oversight of this process is a key safeguard against corrupt or inadequate deals struck by the executive branch. Such oversight both deters and provides a means to reject bad deals when they are made. The "mockery" standard posed a serious threat to effective judicial oversight of the settlement process, and therefore posed a threat to vigorous enforcement of federal antitrust law.A bipartisan effort was launched in the U.S. Senate to overturn the D.C. Circuit's "mockery" standard and restore meaningful judicial oversight. The product of that effort is the Act of 2004. Its provisions are twofold. First, there is an express congressional finding that the "mockery" standard is not a correct construction of Congress's intent that courts must *596 determine whether proposed settlements are in the public interest, and that the purpose of the amendments to the Tunney Act is to restore meaningful judicial review. Second, the Act of 2004 amends the Tunney Act to make it mandatory-not merely discretionary-for courts to consider various factors in making the public interest determination. The amendments do not mandate any particular standard of judicial review. The thesis of this Article is that the amendments should be construed to restore the standard to the one to which Congress had acquiesced to in the decades before the "mockery" standard burst upon the scene; that the proper role of the court is to determine whether a proposed consent decree is "within the reaches of the public interest"; and while a court should afford some deference to the executive branch's decision to settle on the proposed terms, it should also exercise close scrutiny of whether the proposed consent decree is reasonably calculated to protect competition. A corollary to this thesis is that judges should issue written opinions that explain, in a transparent manner, how they evaluated the now-mandatory list of factors that they must consider in deciding whether settlements are in the public interest.Part I of this Article discusses the original Tunney Act and the "within the reaches of the public interest" standard of review developed by the courts in the early decades after passage of the Act. Part II reviews the decisions in the D.C. Circuit that established the narrower "mockery ofjudicial power" standard of review. Part III analyzes the text and legislative history of the amendments to the Tunney Act, which are intended to overturn the "mockery" standard. Part IV discusses the reasons why the proper standard of review under the amended Tunney Act is the "within the reaches of the public interest" standard. Lloyd C. Anderson Consent Decrees