Chris Sagers, the James A. Thomas Professor of Law, posted last week at Promarket, the blog of the Stigler Center of the University of Chicago School of Business, on a remarkable antitrust case going to trial in Rhode Island. The case, Steward Health v. Blue Cross & Blue Shield of Rhode Island, is striking not only because it survived summary judgment, and thus becomes one of the very rare private monopolization cases to go to trial. It is also because the veteran federal judge overseeing the case sent it to trial on a long, scholarly opinion critical of existing law, taking aim specifically at controversial language of the late Justice Scalia and a leading opinion of then-judge Neil Gorsuch.

As Sagers explains, it is still early for predictions, but if the case proceeds through litigation, and especially if it gets appellate review, we will at a minimum have important new guidance on the law of monopolization. We might also see reconsideration of some of the seemingly settled matters that have rendered this law largely inert, and disagreement among the federal circuits that could trigger the first Supreme Court monopolization case in many years.

Professor and Associate Dean Milena Sterio signed a contract with e-Langdell/CALI to write a casebook in International Law.  The casebook will be available, in an electronic format, to all students for free.  The expected date of publication is 2020.

In addition, Professor Sterio participated as a panelist in an episode of the “Talking Foreign Policy” radio show on WCPN/90.3.  The episode was broadcast on May 28, and it available on demand here; it focused on the prospects of a U.S.-North Korea summit.  Professor Sterio is a regular participant of the “Talking Foreign Policy” show, which takes place quarterly on WCPN/90.3.

Chris Sagers, the James A. Thomas Professor of Law, spoke last week with both Bloomberg and the subscription service Law360 about the Federal Trade Commission’s surprising loss in its action against Impax Pharmaceuticals. Impax is important because it is the Commission’s first in-house “pay-for-delay” pharmaceutical case since its dramatic 2013 win before the Supreme Court in FTC v. Actavis. The case is therefore the Commission’s most important opportunity to flesh out the Actavis Court’s laconic opinion and determine how the pay-for-delay standard will be applied going forward. As Sagers explained, the loss was only before the Commission’s own internal Administrative Law Judge, and on appeal to the full Commission it will probably be reversed. Interestingly, the case presents the unusual circumstance that an entirely repopulated Commission will rule on the final appeal than the one that voted out the initial complaint. That makes predictions more difficult than usual. The situation arose because, in part through long delays in appointments and confirmations both in the Obama and the Trump administrations, President Trump is in the unusual position of naming all five members of the agency at once, and the final appeal will be decided by his nominees.

Earlier Sagers spoke with Bloomberg about the pending merger of T-Mobile and Sprint, and the likelihood the deal could withstand U.S. antitrust scrutiny. Since the deal seems essentially just as bad from an antitrust perspective as the deal that AT&T and T-Mobile abandoned following intense antitrust opposition in 2011, Sagers predicted the deal will not survive.

Earlier this month, he spoke with the subscription trade journal Deal Reporter about the pending Justice Department challenge to the merger of AT&T and Time Warner, and another subscription journal, FTC:Watch, about the so-called “Hipster Antitrust” movement and the viability of the traditional consumer welfare standard.

Every year, Congregation B’nei Jeshurun is holding the largest community-wide event of the year, an all-night biblical text study in honor of Shavuot, the Jewish holiday marking the receiving of the Torah. The event features rabbis, scholars, cantors, ethics experts, Jewish educators and many others, providing dozens of one-hour presentations to a very diverse audience.

For the sixth year, Professor Doron Kalir presented at the event. In a presentation entitled “The Tree of Knowledge: Facts vs. Values,” Professor Kalir addressed the differences between Chapter A and B of The Book of Genesis. kalir also addressed the differences between knowing (or understanding) a fact and assessing it morally – the act passing value-judgement. The latter, Kalir argued, is what makes us unique, as we are the only creatures in nature to do so.

Clinical Professor of Law Doron Kalir presented at the Academic Engagement Network (AEN) Regional Conference, hosted at Case Western Reserve University on May 15-17. The AEN comprises of pro-Israel faculty who oppose the BDS movement against Israel and stand for academic freedom and freedom of expression. The conference hosted a wide variety of professors from Northwestern, Indiana U., Minnesota U., Emory, Case, and Smith College, to name a few.

On the conference’s first day, Professor Kalir was part of a panel discussing the Two-State Solution and the prospects of the Peace process. On the conference’s second day, Professor Kalir gave a 90-minute presentation about Israel as a Jewish and Democratic State. Both presentations were well received, and Professor Kalir is happy to report that he made some new friends.

Professor Jonathan Witmer-Rich published an op-ed in The New York Times entitled “When Cops ‘Steal’ Drugs, the Results, Can Spin Out of Control.”  In the op-ed, Professor Witmer-Rich argues that the Department of Justice’s practice of covert drug seizures “is putting innocent lives at risk, and it’s time for Congress to step in.”

Professor Jonathan Witmer-Rich’s article, “The Heat of Passion and Blameworthy Reasons to be Angry,” has been published in the American Criminal Law Review, the nation’s leading criminal law journal.  The article resolves a long-standing conceptual puzzle in voluntary manslaughter cases, when a defendant kills in the “heat of passion” after being provoked.  For decades courts in provocation cases have struggled to determine which features of a particular defendant are properly relevant when assessing the adequacy of provocation.

The article solves this puzzle by identifying a hidden normative component of the heat of passion doctrine: provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant.  A belief is blameworthy if it contradicts the fundamental values of the political community.

The blameworthiness principle also explains when the heat of passion defense should be denied to some defendants—such as possessive men who kill independent women, or defendants who claim “gay panic” or “trans panic”—while allowed for other defendants in arguably similar circumstances.

Jonathan Witmer-Rich, The Heat of Passion and Blameworthy Reasons to be Angry, 55 Am. Crim. L. Rev. 409 (2018).

Professor and Associate Dean Milena Sterio participated as a guest on “The Sound of Ideas” morning radio show on WCPN/90.3.  Professor Sterio discussed recent federal court ruling against the Trump Administration regarding the Administration’s attempt to end the “DACA” immigration program.  She also discussed the recent Supreme Court arguments in the case of “Hawaii v. Trump,” where plaintiffs are challenging the legality of the Trump Administration’s travel ban.  Audio and video of the show are available here.

From right to left: Professors Pamela Daiker-Middaugh, Doron Kalir, Brian Ray, Steve Lazarus, and Milena Sterio

Clinical Professor Doron Kalir presented at the Northeast Ohio Faculty Colloquium on April 27th; his presentation was entitled “Artis v. DC: What Did The Court Actually Say?” Professor Kalir will publish an article (with the same title) with the Notre Dame Law Review Online later this summer.