NORTHERN KENTUCKY LAW REVIEW Volume 20 Winter 1993 Number 2 Twentieth Anniversary Issue Special Feature: Antitrust Exceptions Foreword: Taking Exception to the Antitrust Laws .................... Charles J. Kubicki, Jr., and John H. Watson 241 The Perils of Judicial Legislation: The Establishment and Evolution of the Parker v. Brown Exemption to the Sherman Antitrust Act .............................. M. Shawn McMurray 249 The Sherman Act and the Arbitrary Power Section of the Kentucky Constitution as Applied to Kentucky Fair Trade Laws .......... Donald K. Kazee 297 Antitrust Law and Baseball Franchises: Leaving Your Heart (and the Giants) in San Francisco ......... Myron L. Dale and John Hunt 337 Health Care: Current Antitrust Issues .................................. M urray S. M onroe 365 ARTICLES Hybud Equipment Corp. v. Sphere Drake Insurance Co.: The Meaning of the Pollution Exclusion Established in Ohio .................... Joseph C. Gruber 391 State v. Solomon: The New Bases for Expert Testimony ....................... Lawrence A. Glassmann 407 Jurors Asking Questions: Revolutionary or Evolutionary? .... ... ...... ....... Judge Anthony Valen 423 Mandatory Arbitration Under ERISA: Pay Now, Dispute Later ................ Robert S. Marsel 441 Alternative Dispute Resolution: An Alternative for Resolving Employment Litigation and Disputes ........................ Michael W. Hawkins 493 SPECIAL COMMENT Selling Justice: Will Electronic Monitoring Last? ................J. Robert Lilly and Richard A. Ball 505 STUDENT ARTICLES State v. Wyant: The Demise of Ohio's Ethnic Intimidation Statute ................... Marla J. Merdinger 531 Cremeans v. Willmar Henderson Mfg. Co.: Must Manufacturers Become Involuntary Insurers of Their Products in Ohio's Employment Settings? ....................................... Terese M . Wells 551 Ohio Blows the Lid Off the Medical Malpractice Damage Cap: Morris v. Savoy ............. Lisa T. Meeks 571 DEDICATION FOR THE TWENTIETH ANNIVERSARY OF LAW REVIEW by David A. Elder* The Salmon P. Chase College of Law, Northern Kentucky University, is celebrating its centennial year in 1993. Its predecessor entity opened its doors as a part-time evening law school in 1893, making the College of Law the second oldest of its kind. In 1972 the College of Law affiliated with the then Northern Kentucky State College and initiated a day division. Upon becoming a full-fledged dual division school, the College of Law also began publishing the Northern Kentucky Law Review. During the two decades of its publication, several hundred of the College of Law's "best and brightest" have contributed their con- siderable talents and innumerable hours in developing the Law Review's respected reputation as a forum for critical analysis of legal developments of state, national and international significance by respected scholars and practitioners. The Law Review has annually published the Harold J. Siebenthaler Lecture given by a prominent academic or jurist, numerous issues and symposia on topics of national significance, including most recently the environmental .law issue developed in conjunction with the Ohio Valley Environmental and Natural Resources Institute, Inc., housed at the College of Law. This year, the Law Review has recently initiated an annual review of Kentucky legal developments, making it the only law school in the Commonwealth of Kentucky providing this service to its readership and to members of the Kentucky Bar Association. As advisor to the Law Review for the last decade, I can personally attest to the high level of conscientiousness and selflessness evidenced by the talented editors and staff members of the'Law Review, epitomized most recently by the Editor-in-Chief, Barry Kubicki, class of 1993. The student members and editors have added measurably to the legal literature by their published casenotes and comments, while at the same time enhancing their own analytical, research, communicative and business skills by organizing, editing and publishing the three annual issues of the Law Review. It has been an honor and a most rewarding professional experience to be affiliated with these fine, bright young women and men who have been the heart and soul of the Law Review and who have developed its reputation as a distinguished legal periodical. To all who have served, I give you my personal thanks and that of the College of Law for a job extraordinarily well done! * Professor of Law, Salmon P. Chase College of Law; A.B., Bellarmine; J.D., St. Louis; LL.M., Columbia. FOREWORD: TAKING EXCEPTION TO THE ANTITRUST LAWS by Charles J. Kubicki, Jr., and John H. Watson The year 1993 marks not only the centennial of Chase College of Law, but the centennial of the federal courts' struggle to define the bounds of the application of the antitrust laws.' The Northern Kentucky Law Review presents four articles on the continuing contest to refine or confine the scope of the antitrust laws as applied to state actions, professional baseball, and health care. Section 1 of the Sherman Act proscribes: [e]very contract, combination ... or conspiracy, in restraint of trade or commerce among the several States." Any "person" who makes any such contract or engages in any such conspiracy "shall be deemed guilty of a felony."2 Section 2 provides that: [e]very person who shall monopolize or attempt to monopolize, or ... conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states ... shall be guilty of a felony ... The Sherman Act's common law roots, complicated legislative history, and all-encompassing words have invited litigants to beseech Court and Congress to carve exceptions from the scope of the Act. The first judge to grapple with the Act's scope hesitated to take up all the power apparent in the language: Careless or inapt construction of the statute as bearing on this case, while it may seem to create but a small divergence here, will, if followed out logically, extend into very large fields; because, if the proposition made by the United States is taken with its full force, the inevitable result will be that the federal courts will be compelled to apply this statute to all attempts to restrain com- merce among the states, or commerce with foreign nations, by 1. U.S. v. Patterson, 55 F. 605 (C.C. Mass. 1893). 2. Sherman Act S 1, 15 U.S.C. S 1 (1992). 3. Sherman Act S 2, 15 U.S.C. S 2 (1992). 242 NORTHERN KENTUCKY LAW REVIEW [Vol. 20:241 strikes or boycotts, and by every method of interference by way of violence or intimidation. It is not to be presumed that Congress intended thus to extend the jurisdiction of the courts of the United States without very clear language. Such language I do not find 4 in the statute.1 This willingness to mitigate the full force of the words of the Act could not but spur ingenious theories to dilute it. The first exception to the Sherman Act considered and denied by the federal courts was ironic indeed. The Act passed to cure the most flagrant abuses of 19th Century capitalists was first enforced by its literal terms against the fledgling labor move- ment.5 Labor won an effective exception from the antitrust laws from Congress only in the 1933 Norris-LaGuardia Act.8 The Supreme Court's first Sherman Act decision excepted intra-state "manufacture" as opposed to interstate "commerce" from the Sherman Act's scope.' This exception would wither as the Court's view of the Commerce Clause expanded through Houston E. & W. Texas Ry. v. United States (The Shreveport Rate Case),8 Wickard v. Filburn,9 and Heart of Atlanta Motel v. United States.0 Defendants have relied upon extant acts of Congress for ex- ception in court and have sought Congressional exception when the courts had denied it. The railroads, which epitomized inter- state commerce in the 1890s, sought exemption by reason of their recent subjection to federal regulation under the Interstate Com- merce Act.1 However, the Court rejected the special claims of railways as a regulated industry just as English courts had rejected the special claims at common law of another regulated industry, the making of playing cards.'2 The Trans-Missouricourt made it clear that the exemption from the Act depended upon 4. U.S. v. Patterson, 55 F. 605 (C.C. Mass. 1893) (Putnam, J.). 5. U.S. v. Elliott, 64 F. 27 (C.C.E.D. Mo. 1894), U.S. v. Debs, 64 F. 724 (C.C.N.D. Ill. 1894). 6. 29 U.S.C. S 105 (1992). 7, U.S. v. E.C. Knight Co., 156 U.S. 6 (1895) (acquisition of four sugar mills in one state did not affect interstate commerce). 8. 234 U.S. 342 (1914). 9. 317 U.S. 111 (1942). 10. 379 U.S. 241 (1964). 11. U.S. v. Trans-Missouri Freight Ass'n, 166 U.S. 290 (1897); U.S. v. Joint Traffic Ass'n, 171 U.S. 505 (1898). 12. Case of Monopolies, 11 Coke 84, 77 Eng. Rep. 1260 (K.B. 1603). 19931 FOREWORD the commercial rather than the regulated nature of the activity: "Congress has, so far as its jurisdiction extends, prohibited all contracts or combinations in the form of trusts entered into for the purpose of restraining trade and commerce. 13 Regulated industries continue to ask the Court for exception from the 14 Sherman Act, some more successfully than others. By far the most important court-fashioned exception to the Act is the exception for "reasonable restraints." After struggling with the sweeping terms of the act in U.S. v. Trans-Missouri Freight Association,5 U.S. v. Joint Traffic Association,16 and Northern Securities Co. v. United States,17 the Court decided in Standard Oil Co. of New Jersey v. United States"' that the Con- gress could not have meant to outlaw all restraints of trade, as had seemed Congress' intent from the words of the Act, but only the unreasonable ones.