Articles

Hot Docs vs. cold economics: The Use and misuse of business documents in antitrust enforcement and adjudication

Geoffrey A. Manne & E. Marcellus Williamson

The use of business documents to prove antitrust violations in court is quite problematic. This article identifies three classes of business documents that are used by courts and antitrust agencies to determine whether antitrust violations have occurred: Accounting documents, market definition documents, and intent documents. The use of each to prove economic injury is unsatisfactory. Accounting information is sufficiently disconnected from underlying economic reality that it presents a distorted and unreliable picture of economic consequences. Businesses characterize markets for myriad reasons, most having nothing to do with elasticity, the criterion of market definition relevant to the antitrust laws. Likewise, corporate actors express intentions and motivations for rhetorical and other purposes, not necessarily because they possess the capacity to achieve their “intended” effect. Principled antitrust enforcement must rely on evidence of actual economic effect, rather than inherently-misleading characterizations of business conduct.

 Up the river without a procedure: innocent prisoners and newly discovered non-dna evidence in state courts
Daniel S. Medwed

Since 1989, post-conviction DNA testing has exonerated 162 innocent defendants. Nevertheless, few criminal cases – 10-20% – have any biological evidence suitable for DNA testing, suggesting that documented DNA exonerations are just the tip of the innocence iceberg. In cases that lack biological evidence, prisoners seeking to assert their innocence often must present non-scientific “newly discovered evidence,” such as recantations by trial participants, statements by previously unknown witnesses or confessions by the actual perpetrator. Without a doubt, non-DNA cases are difficult for defendants to overturn given the subjectivity involved in assessing most forms of new evidence and the absence of a method to prove innocence to a scientific certainty. This inherent difficulty, however, is exacerbated by the fact that inmates typically must resort to burdensome state court procedures that remain little-changed from their ancient British roots and that ultimately fail to provide potentially innocent defendants with adequate access to the courts. To improve such access, this Article recommends that states revamp their procedures in this area by, among other reforms, abandoning statutes of limitations, directing each submission to a judge other than the original trial judge, and adopting a de novo standard of appellate review for summary denials of innocence claims. 

 STANDING IN THIRD-PARTY CUSTODY DISPUTES IN ARIZONA: BEST INTERESTS TO PARENTAL RIGHTS – AND SHIFTING THE BALANCE BACK AGAIN
Lawrence Schlam

Third parties have historically been faced with the presumption that parents should have a preference in custody proceedings. Earlier, however, Arizona courts had no problem finding that under appropriate circumstances third parties should prevail, but in 1973 Arizona adopted Uniform Marriage and Divorce Act custody provisions promulgated to strengthen parental rights and subject third-parties to rigid standing requirements. The UMDA language, however, proved overly restrictive in application. It forced courts to either ignore the “best interests” of children or engage in questionable statutory interpretation to support third party claimants. This article discusses the relative wisdom and efficacy of recent important Arizona legislation and case law which have once again reversed course, now properly re-framing third-party standing in terms of “meaningful relationships” and “detriment” to children caused by a given placement, thus moving away from the unhelpful former UMDA emphasis on parental “property rights.”

Notes

 FROM TOILET TO TAP: THE GROWING USE OF RECLAIMED WATER AND THE LEGAL SYSTEM’S RESPONSE
Ginette Chapman

 THE HISTORICAL AND MODERN FOUNDATIONS FOR AIDING AND ABETTING LIABILITY UNDER THE ALIEN TORT STATUTE
Daniel Diskin

STATE V. HAMPTON
Suzanne Diaz

  CITIZEN PUBLISHING CO. V. MILLER
Katherine Flanagan-Hyde

  NORTH VALLEY EMERGENCY SPECIALISTS, L.L.C. V. SANTANA
Gregory N. Thomas

  PETERSEN V. CITY OF MESA
Jessica L. Tom