Journal of Law and Commerce

Monopolectomy: An Antitrust Analysis of Healthcare Facilities Mergers Under the FTC's 2023 Merger Guidelines

2025-10-13T07:33:18-04:00

Healthcare services markets display a trend toward concentration in recent decades. 1,887 hospital mergers have been announced in the United States between 1998 and 2021. In one regional market—really, in several regional markets—the University of Pittsburgh Medical Center (UPMC) acquired twenty-eight hospitals between 1996 and 2019. UPMC’s consolidating tendency has not slowed down into the present: in June of 2023, UPMC signed a non-binding letter of intent to affiliate with the Washington Health System, which consists of two hospitals. Meanwhile, in December of 2023, the two federal agencies empowered to enforce federal antitrust law, the Federal Trade Commission (FTC) and the Department of Justice (DOJ), released new merger guidelines thatsignal a more aggressive approach to Section 7 of the Clayton Antitrust Act in seeking injunctions against corporate mergers. The new guidelines above all signal a stronger presumption of illegality with respect to mergers and thus require less concrete evidence of a merger’s future individualized detrimental impacts on consumer welfare than previous guidelines for FTC or DOJ’s antitrust division to prosecute such mergers. Whether these guidelines will acquire cachet in the courts and change the state of antitrust law as we know it is an open question.
Similarly, in February of 2023, the Department of Justice retracted Clinton-era policy statements creating an “antitrust safety zone” for hospital mergers. This Note will consider how the changes in FTC and DOJ policy signaled by the 2023 guidelines bear upon the healthcare services market. Though ultimately it is not likely that the shift in the agencies’ policies will be perfectly reflected in judicial decisions, healthcare administrators and their legal counsel concerned with the expense of litigation can consult this Note to understand how the FTC and DOJ will analyze mergers in their industry under the new guidelines.

Volume 43 Issue 2 Front Matter

2025-10-13T07:42:58-04:00

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Professional Responsibility and Privilege in the Cross-Border Practice of Law

2025-10-13T07:09:57-04:00

This Article captures my presentation and the discussion at the May 2024 Dubrovnik Program on Cross-Border Dispute Resolution co-sponsored by the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law and the Law Faculties at the University of Verona and the University of Zagreb. I review U.S. law on professional responsibility and cross-border practice, with a focus on disciplinary decisions and cases dealing with the unauthorized practice of law. I follow that discussion with consideration of the attorney-client privilege and work product doctrines in order to highlight how challenges to the admissibility of evidence in dispute resolution proceedings both demonstrate the differences in legal system approaches to the lawyer-client relationship and indicate the need for careful communication at all stages of that relationship when it crosses borders. I conclude that the current system of lawyer regulation does not meet the needs of the contemporary world. The result is a need for vigilance on the part of any lawyer engaged in the cross-border practice of law.

International Commercial Courts "Made in Germany": Attractive Alternative for Big Business?

2025-10-13T07:19:50-04:00

Over the past two decades, jurisdictions in the Gulf Region, Asia and Europe have established special judicial bodies to settle international commercial disputes. Commonly referred to as “international commercial courts” these bodies are distinct from other (local) courts in that they display innovative features with regards to their institutional and procedural design which are geared towards greater internationalization. However, not all of these courts have turned out to be a resounding success. A case in point are the international commercial courts – or, more precisely: the international (commercial) chambers – that have been established at regional courts (Landgerichte) in Germany during the past 15 years: They have not managed to attract a large number of cases, most likely because they did not offer enough benefits to induce parties to change their dispute resolution habits. In fact, since the overall legislative framework remained unchanged, they were bound by the general rules and regulations of German law, notably the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG) and the Code of Civil Procedure (Zivilprozessordnung – ZPO). The newly founded chambers could, therefore, only make use of the leeway that was granted by these rules and regulations. And the leeway was certainly limited. The use of English as court language, for example, was confined to the oral hearing and the submission of English-language evidence whereas all party briefs as well as all court orders, the records of the proceedings as well as all judgments had to be made in German. Moreover, there was no certain prospect for an English-language second and third instance.

However, a new Law adopted by the German Federal Legislature in late 2024 gives hope that things are about to change. Called “Law on the Strengthening of Germany as a Place to Settle Disputes” (Justizstandort-Stärkungsgesetz) the new Law amends both the Courts Constitution Act and the Code of Civil Procedure with the aim of making German courts more attractive places to settle international commercial disputes and in the hope of improving Germany’s position vis-à-vis recognized litigation and arbitration venues, notably London, Amsterdam, Paris and Singapore. Specifically, it allows (certain) courts to conduct proceedings completely in English. And it allows the German federal states (Bundesländer) to establish specialized “commercial courts” that may hear certain high-volume (international) commercial disputes in an arbitration-style fashion.

In the article we explore whether the new Law will make German courts an attractive alternative for “big business” – and a serious competitor for foreign courts and international commercial arbitration. To this end, we contextualize the new German Law by giving an overview of the German civil justice system, the current German dispute resolution landscape and the global trend to establish specialized courts for international commercial disputes (part II.). We move then on to discuss the details of the new German Law (part III.) before we offer some thoughts on its likely impact on the dispute resolution landscape in Germany and beyond (part IV.). All in all, we show that the new Law introduces welcome innovations that will actually improve the framework conditions for the settlement of international commercial disputes in Germany. However, we also demonstrate that shortcomings remain that will prevent German courts from becoming serious competitors for leading international commercial courts as well as international commercial arbitration.

Greening the Supply Chain: CSR Clauses and Codes of Conduct in Light of the Corporate Sustainability Due Diligence Directive (CS3D)

2025-10-13T07:30:03-04:00

Corporate social responsibility has historically been a voluntary practice. However, in recent years, a clear shift has taken place, particularly in the national legislation of some European States: corporate responsibility as a tool for mitigating environmental and human rights impacts has progressively transitioned from the realm of voluntary commitments to legally enforceable obligations. This transformation did not occur overnight, but is the result of a long regulatory evolution, culminating in the adoption of the European Union (“EU”) Directive on Corporate Sustainability Due Diligence (hereinafter “CS3D” or “Directive”)—a subject of intense debate within the EU in recent years. The impact of this Directive extends beyond European borders. Like previous EU legal instruments, the CS3D will have extraterritorial effects, making it essential for companies outside the EU to understand its requirements; under certain conditions, indeed, non-EU companies operating within the European market will be subject to compliance obligations.
This Article examines the potential implications of the transition from soft law to hard law, with a particular focus on sustainability clauses in commercial contracts and the drafting of codes of conduct. It explores how—and to what extent—the CS3D reshapes contractual governance in supply chains; the challenges associated with its implementation, particularly for small- and medium-sized enterprises (“SMEs”); and the possible unintended consequences of regulatory overreach.
Section I of this Article traces the historical evolution of corporate social responsibility from voluntary initiatives to a mandatory regulatory legal framework. Section II outlines the core obligations imposed by the new CS3D. Section III examines the state of sustainability clauses and codes of conduct before the Directive’s adoption, while Section IV analyzes how they may evolve once the Directive’s mandatory provisions become applicable. Finally, Section V discusses the specific challenges faced by SMEs before concluding with a critical assessment of the Directive’s potential impact.