The Puzzling Persistence of the Single-Entity Argument for Sports Leagues: American Needle and the Supreme Court’s Opportunity to Reject a Flawed Defense
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
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
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
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
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
Civil Remedies for Invasions of Privacy: A Perspective on Software Vendors and Intrusion upon Seclusion
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