Volume 2009, No. 4


The Puzzling Persistence of the Single-Entity Argument for Sports Leagues: American Needle and the Supreme Court’s Opportunity to Reject a Flawed Defense
Gabriel Feldman

Later this term, the Supreme Court will hear American Needle, Inc. v. National Football League, a case that might fundamentally change professional sports and rewrite sports antitrust law. In American Needle, the Seventh Circuit held that the National Football League (NFL) acts as a single entity when licensing its intellectual property

and thus is immune from scrutiny under Section 1 of the Sherman Act. Although the Seventh Circuit is the first circuit court to hold that a sports league is a single entity, the argument that leagues act as single entities has persisted for decades. Leagues view the single-entity defense as the antitrust “holy grail,” because it shields them from Section 1 attack and costly antitrust litigation. Section 1 explicitly requires an agreement, and an agreement requires more than one entity. Thus, as a matter of law, a single entity cannot violate Section 1.

This Article argues that a single-entity classification for sports leagues divorces antitrust immunity from the fundamental purpose of the antitrust laws and is theoretically unsupportable. Antitrust law is designed to act as a gatekeeper, filtering out net anticompetitive conduct. The Seventh Circuit’s single-entity approach ignores the competitive effects of league conduct and distorts the basic rationale for distinguishing between single and multiple entity conduct. In doing so, it vests sports leagues with virtually free rein to engage in anticompetitive behavior. This Article also brings to light evidence of actual economic competition between NFL teams that proves that the Seventh Circuit’s single-entity analysis in American Needle is factually unsupportable. This Article thus concludes that the Supreme Court should definitively put an end to the single-entity defense for professional sports leagues. The Article also proposes a model for streamlining the rule-of-reason analysis and reducing the litigation burden on sports leagues.

Toward a Distributive Commons in Patent Law
Peter Lee

Patents both promote the development of “health technologies” as well as constrain access to them. Constrained access to medicines, diagnostic agents, and agricultural innovations can severely compromise human well-being, disproportionately impacting low-income populations. To help address this challenge, this Article explores

mechanisms for integrating distributive safeguards in the patent system in a manner consistent with strong property rights and private ordering. Finding existing patent doctrine inadequate, this Article identifies solutions arising from the developmental histories of particular health technologies. In particular, this Article argues that public institutions, which contribute enormous amounts of “scientific capital”—money, labor, and bodily materials—to life sciences research, can effectively leverage these contributions to enhance access to downstream patented technologies.

By providing vital scientific capital, government, academic, and nonprofit entities both weaken the economic need for exclusive rights as well as obtain limited co-ownership stakes in resulting inventions. By exercising this leverage, public institutions are helping to create a “distributive commons” that enhances access to patented health technologies for low-income populations. This Article surveys existing practices, providing prescriptions to address the chilling effects and technical competence limitations that threaten distributive efforts. It concludes by challenging prevailing theoretical preferences for individual rather than communal ownership of property, highlighting the advantages of publicprivate co-ownership of nonrival resources.

American Oresteia: Herbert Wechsler, the Model Penal Code, and the Uses of Revenge
Anders Walker

The American Law Institute recently revised the Model Penal Code’s sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the “blameworthiness” of offenders, and the “harms done to crime victims.” Already, detractors have criticized this move, arguing that it replaces the Code’s

original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution’s subtle yet significant role in both the drafting and enactment of the first Model Penal Code. This Article recovers that role by focusing on the retributive views of its first Reporter, Columbia Law Professor Herbert Wechsler. Though a dedicated utilitarian, Wechsler became increasingly aware of retribution’s value to sentencing over the course of his career, using that awareness to guide both the development and adoption of the MPC. Recovering his view helps us to contextualize and perhaps even better appreciate the current revision’s emphasis on proportionality.


Civil Remedies for Invasions of Privacy: A Perspective on Software Vendors and Intrusion upon Seclusion
William Dalsen

Many civil remedies designed to protect privacy in the physical world are proving to be feeble solutions for privacy problems in cyberspace. Software vendors amplify those problems by preempting consumer protections through adhesive end-user license agreements. One civil action—the tort of intrusion upon seclusion—may provide a

remedy to consumers when software vendors invade their privacy. This Comment presents the first comprehensive application of the intrusion tort to software vendors, and argues that vendors should be liable when they access private information without notice and authorization—particularly if the information could not, until recently, be accessed without a physical intrusion. It then applies that framework to one real-world incident in which Sony installed monitoring software on consumers’ computers without notice and authorization. Finally, this Comment concludes by addressing the practical difficulties and chief benefits of applying the intrusion tort to software vendors.