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A conk on the noggin' from an acorn made Chicken Little think the sky had started falling. She ran to tell the king.

Did You Know?

Your Editor has taken several commercial cases to arbitration. He believes that in each instance the arbitrator or arbitrators issued fair, just, and reasonable awards. So why does he consider arbitration an utter failure as alternative to lawsuits?

In a word, arbitragation -- the sandwiching of arbitration within bouts of litigation. Parties often fight in court over whether they must arbitrate, and they later return to battle over the arbitral award itself. Sadly, some judges project the substantive and procedural punctiliousness of lawsuits onto the arbitral enterprise. Arbitration loses all of its advantages -- speed, expertise, efficiency, finality.

Lest you think Your Editor a Chicken Little, consider that during 2006 federal courts averaged 8.8 opinions on issues relating to arbitration every day -- up from 5.4 in 2005, 5.5 in 2004, 5.0 in 2003 and 2002, 4.5 in 2001, and 4.2 in 2000.

While these statistics may not prove the falling of the arbitral sky, you gotta admit the trend, she doesn't look so good.

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Lt. Joe Cable and Nellie Forbush in South Pacific just before Cable starts singing.

Cable, Cable & Cable.

Your Editor and his bride have for more than a decade welcomed New Years by watching that Rodgers and Hammerstein classic, South Pacific (1958). The stupdendously hokey film depicts, in song and dance, a tense moment on a remote Pacific island. The atoll serves as base for the U.S. Navy and marines during World War II.

Your Editor will get to the point in a moment, so simmer down.

The movie features Mitzi Gaynor (playing Nellie, a goosey nurse from Arkansas), Rossano Brazzi (a handsome French plantation owner who calls Nellie's home town "Small Rock"), and of course John Kerr (Lt. Joe Cable, who dies on a secret mission before he can wed a native Tonkinese).

South Pacific reflected forward thinking about diversity in its day (50 plus years ago). Lt. Cable overcame his prejudice when he decided to marry Liat. The then-startling concept didn't bear fruit, of course, as Lt. Cable suffered a cinematic expunction before he and Liat could exchange vows.

Just before Lt. Cable's eureka! moment, he, naturally, bursts into song -- specifically, My Girl Back Home. Your Editor hasn't, for this tune, the same fondness for Bali Hai and Happy Talk and mentions it only because it names the firm that Lt. Cable plans to join after the war -- Cable, Cable & Cable -- in his home town of Philadelphia. Sounds like a family business, no?

Another Philadelphia family owns the largest cable company in these United States -- Comcast Corporation. Your Editor's firm represents Comcast subscribers from three metropolitan areas (Boston, Chicago, and Philadelphia) in challenging Comcast's consoli-da-tion of its domi-na-tion through subscriber swaps, mergers, and other competition-unfriendly conduct. Your Editor likes to refer to the triadic litigation -- pending, naturally, in Philadelphia -- as Cable, Cable & Cable. Get it?

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Hot Lunch

What the hey -- Blawgletter

Law + Web Log + Letter

A Harley-Davidson hog. Listen to its sweet, mellifluous rumble.

A terrific intellectual property lawyer, David McCombs , knows tons about trademark law (not to mention the many nuances of patent law, copyright law, and trade secret law). He knows so much, in truth, that he once told Your Editor a shocking fact about the law of trademarks.

We see trademarks every day of course. Everywhere -- on the wrapper of your Triple Whopper with Cheese, The Rush Limbaugh Show website, and, yes, the YouTube Broadcast Yourself logo.

Fun info: In the U.S., ™ indicates that the owner claims trademark rights in the mark but has not registered it with the Patent and Trademark Office. Examples include the Google™ logo and Poppin' Fresh, the Pillsbury Doughboy™ . The ® symbol denotes registration of the mark. See, e.g., Microsoft® and Coca-Cola®. Trademark law doesn't mandate use of the symbols but does require registration before filing suit against an infringer.

The startling bit of information that Mr. McCombs imparted concerned an American icon -- Harley-Davidson, Inc. The company, Mr. McCombs related, applied for trademark protection of the distinctive sound issuing from its motorcycles. Listen to it here. Wow! Competitors objected to the H-D application, and the company withdrew it six years later. But what audacity!

H-D's boldness inspired Your Editor to ask Mr. McCombs to try to register the name of a new law blog -- Blawgletter. The title comes from law + web log + letter. We'll see the results of the application later this year.

Your Editor launched Blawgletter ("Business trial law with a sense of humor.") on January 1 and posts to it daily. You can sign up to receive a "feed" to the blawg by going here and choosing a "news reader" (including Google, My Yahoo!, and My AOL). The feed displays the clickable titles of recent Blawgletter postings on your personal homepage for the news reader, so you can access it any time. You can also choose to get Blawgletter via email.

Blawgletter may not rumble like a Harley, but it gets better gas mileage. Take it for a test drive here or here.

Barry Barnett, Editor

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Antitrust, Boom and Bust

The movie Antitrust (2001) didn't do big box office -- a piddling $11 million in the U.S. The film's antagonist, an evil CEO, reminded some viewers of a cross between Steve Jobs of Apple and Bill Gates of Microsoft.

Your Editor enjoys antitrust law as much as the next guy. Check that. I like it more than the next guy -- if by next guy you mean John Sherman, the Ohio Senator who sponsored the Act of July 2, 1890. Yes, I totally love antitrust law.

So much so that I belly laugh at Stephen Colbert's antitrust critique (featuring AT&T) even as the declining vigor of antitrust enforcement in the U.S. fills me with rue.

My devotion to things antitrusty extends to reading stuff like Statistics on Modern Private International Cartels, 1990-2005. The authors, John M. Connor and C. Gustav Helmers, wrote the paper for Purdue University's Department of Agricultural Economics. Go here to read the paper for your own self.

Professor Connor and Ph.D. candidate Helmers studied 283 "hard-core cartels." Among their key findings:

• The cartels affected sales of $2.1 trillion in real 2005 terms.
• Total overcharges worldwide exceeded $200 billion.
• Overcharge rates ran at a median of 24 percent in North America and the European Union.
• In the U.S. and Canada, private lawsuits recouped 43 percent of all recoveries from international cartels -- more than double the 17 percent that government enforcement actions obtained.

The authors also conclude -- in line with Your Editor's suspicions -- that median U.S. fines against cartels dropped from a high of $2 billion per year at the end of the Clinton administration to $1 billion since. And that cartels remain quite profitable. Hmm.

More support for the suspicions came recently from the pages of San Jose Mercury News (article):

"Right now from a business perspective, it appears frankly that there has been a retreat from Section 2 enforcement," said Tom McCoy, executive vice president of legal affairs at AMD of Sunnyvale, referring to the part of the Sherman Act that prohibits monopolization.

McCoy [also] said he believed that Section 2 violations "are not getting the same kind of energetic enforcement and investigation" as they have in the past.

AMD of course has a bone to pick with its larger chip-making rival Intel, but the question arises anyway: do current antitrust enforcers equate bigger with better?

Abe "Grampa" Simpson surely doesn't know the answer. But, as he admits here (if you have QuickTime), he once took a shot at Teddy Roosevelt, an early (if at times reluctant) trust-buster.

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Roundup

Cowboys wrangle -- or jingle -- the horses they'll need for their day's work. Blawgletter does the same each morning. Kinda sorta.

A selection from the pages of Blawgletter:

• Five Trial Tips

• Price-Fixing a Go-go

• Price-Fixing a Go-go Update

• Articles on Arbitragation

• Banishing Jury Trial

• Does Politics Improve Regulation?

• Downstream Discovery? Magistrate Judge Says No

• No Comeuppance!

• Socrates Must Die?

• Deepening Insolvency

• Important ERISA Class Action Decision

• Painless e-Discovery

• Juror + ETOH = Mistrial< /A >

• Lawyers, Herding Cats

• "Woperpygmy" Inquiry

• Making Law Firm Partners

• Dream, The

• No Mo' Pro Bono fo' Gitmo?

• Global Warming -- or Climate Change?

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The Modern Buccaneers (1888)

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