Comments

This Comment will analyze the fair warning rule in three Parts. Part I chronicles the Chrysler litigation. Part II summarizes the current state of the two competing doctrines of fair warning and retroactivity. Part III argues that the current articulation of the fair warning rule is overly broad in two ways. First, while the rule is rooted in due process, it now extends further than due process concerns warrant. The retroactivity rule, by contrast, more accurately balances the procedural concerns of regulated parties with the general public interest. Second, the overly broad fair warning rule creates perverse incentives for regulated parties and administrative agencies, incentives which ultimately call into question the rule’s efficacy at creating clear regulations and which hinder the efforts of agencies to pursue their statutory objectives effectively. The retroactivity rule, on the other hand, fosters cooperation between agencies and regulated parties by encouraging regulated parties to seek administrative clarifications of ambiguous regulations before disputes arise.

This Comment tries to extract Watts from the context of statutory and constitutional interpretation and reread it as an inquiry into the meaning of acquittals in the current sentencing regime. Part I of this Comment places the enactment of the Guidelines into historical context and also looks at the limited ways in which the Supreme Court attempted to justify the practice sanctioned in Watts. Part II examines the legal justifications that might better explain the Court’s decision. Part III argues that even the best justifications offered for the Watts decision overlook the communicative effects of acquittals. Penal practices inevitably contribute to a social dialogue beyond the courtroom and the prison. This Comment argues that we should demand some coherence between social beliefs and sentencing decisions. Ultimately, Watts is problematic because it renders the acquittal verdict incoherent in a sentencing regime that many scholars and activists already find deeply unjust.

This Comment examines the mischief that the Daisy ruling could make. Though advisors such as attorneys and auditors have previously been held to be fiduciaries of their clients, the Daisy court’s broad application of these duties to investment bankers poses unique problems. The first Part begins with a brief survey of pre-Daisy cases dealing with the responsibilities owed by bankers to their clients, and then turns to Daisy itself. The second Part discusses the Daisy court’s broad conception of the role of bankers in change-of-control transactions. The final Part is a policy and doctrinal critique of the Daisy rule, focusing especially on the undesirable incentives provided to bankers as a result of the holding. The Comment concludes that the court’s decision in Daisy promulgates a liability regime desirable neither as a matter of corporate governance nor as a shareholderprotection device.

In this Comment, Rafael Pardo criticizes a recent pair of decisions by the United States Court of Appeals for the Second Circuit, FCC v. NextWave Personal Communications, Inc. (In re NextWave Personal Communications, Inc.) and In re FCC. Those cases held that a bankruptcy court lacks jurisdiction to determine whether the Federal Communications Commission is stayed from revoking a debtor’s licenses. Pardo argues that the court of appeals interpreted the bankruptcy court’s jurisdiction too narrowly because it failed to distinguish properly between an agency’s action as a creditor and as a regulator. He concludes that bankruptcy courts and courts of appeals have concurrent jurisdiction to make automatic stay determinations regarding FCC licenses and that, for reasons of institutional competence, courts of appeals should defer to this exercise of jurisdiction by bankruptcy courts.

In its en banc decision in LePage’s Inc. v. 3M, the Third Circuit held that a 3M loyalty rebate program, which provided above-cost price discounts to customers who purchased multiple 3M product lines, violated section 2 of the Sherman Act. Prior to this decision, many practitioners and scholars understood the antitrust case law to hold that a strategic pricing scheme would not violate section 2 so long as the discounted prices remained above cost. The Third Circuit found that this test applies only to predatory pricing cases, and ruled that claims alleging exclusionary conduct other than predatory pricing—as it characterized 3M’s loyalty rebate program—are cognizable under section 2 even without a showing of below-cost pricing. The Supreme Court recently denied certiorari in LePage’s, leaving the issue in the hands of the lower courts. In this Comment, Joanna Warren criticizes the Third Circuit’s decision as lacking sufficient economic analysis of the rebate scheme and providing unclear guidance for addressing future claims. She argues for the adoption of a test that would recognize above-cost pricing as generally legitimate while invalidating schemes that threaten to eliminate equally efficient competitors from the marketplace.