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Articles 1 - 30 of 63
Full-Text Articles in Entire DC Network
Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein
Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein
Articles
Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct. It demonstrates that algorithmic pricing can lead to higher prices for consumers in competitive markets and even in the absence of collusion. This consumer harm can be initiated by a single firm employing a superior pricing algorithm. Higher prices arise from …
Regulating New Tech: Problems, Pathways, And People, Cary Coglianese
Regulating New Tech: Problems, Pathways, And People, Cary Coglianese
All Faculty Scholarship
New technologies bring with them many promises, but also a series of new problems. Even though these problems are new, they are not unlike the types of problems that regulators have long addressed in other contexts. The lessons from regulation in the past can thus guide regulatory efforts today. Regulators must focus on understanding the problems they seek to address and the causal pathways that lead to these problems. Then they must undertake efforts to shape the behavior of those in industry so that private sector managers focus on their technologies’ problems and take actions to interrupt the causal pathways. …
Navigating The Transition To A More Innovation-Centric Antitrust (Review Of Richard J. Gilbert, Innovation Matters), Jonathan Baker
Navigating The Transition To A More Innovation-Centric Antitrust (Review Of Richard J. Gilbert, Innovation Matters), Jonathan Baker
Book Reviews
Review of Richard J. Gilbert Innovation Matters: Competition Policy for the High-Technology Economy MIT Press 2020
Is The Digital Economy Too Concentrated?, Jonathan Klick
Is The Digital Economy Too Concentrated?, Jonathan Klick
All Faculty Scholarship
Concentration in the digital economy in the United States has sparked loud criticism and spurred calls for wide-ranging reforms. These reforms include everything from increased enforcement of existing antitrust laws, such as challenging more mergers and breaking up firms, to an abandonment of the consumer welfare standard. Critics cite corruption and more systemic public choice problems, while others invoke the populist origins of antitrust to slay the digital Goliaths. On the other side, there is skepticism regarding these arguments. This chapter continues much of that skepticism.
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
UF Law Faculty Publications
Tim Wu’s most recent book, The Curse of Bigness: Antitrust in the Gilded Age, is an attempt to reframe contemporary antitrust debates by returning antitrust to its more populist roots. Given the global implications of his ideas and policy proposals (including breakup of tech platforms) for many of the large corporations that he takes on, The Curse of Bigness offers profound insights for how society and business should be organized. The first part of this Review summarizes Wu’s major claims. It then highlights some of his critiques as to “bigness,” the multiple goals of antitrust, and the missed opportunities as …
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
D. Daniel Sokol
The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
D. Daniel Sokol
Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …
Intellectual Property And The Economics Of Product Differentiation, Christopher S. Yoo
Intellectual Property And The Economics Of Product Differentiation, Christopher S. Yoo
All Faculty Scholarship
The literature applying the economics of product differentiation to intellectual property has been called the most important development in the economic analysis of IP in years. Relaxing the assumption that products are homogeneous yields new insights by explaining persistent features of IP markets that the traditional approaches cannot, challenging the extent to which IP allows rightsholders to earn monopoly profits, allowing for sources of welfare outside of price-quantity space, which in turn opens up new dimensions along which intellectual property can compete. It also allows for equilibria with different welfare characteristics, making the tendency towards systematic underproduction more contingent and …
Welcome And Introductory Remarks, Jonathan Baker
Welcome And Introductory Remarks, Jonathan Baker
Presentations
Video link: https://vimeo.com/352303633Audio link: https://www.ftc.gov/news-events/audio-video/audio/economics-big-data-privacy-competition-introductionThe Federal Trade Commission held the sixth session in its Hearings initiative, with two and a half days of sessions on November 6 – 8, 2018, at American University Washington College of Law, in Washington, D.C.The hearings examined the role that data play in competition and innovation and will also consider the antitrust analysis of mergers and firm conduct where data is a key asset or product.The Commission invited public comment on these issues, including the questions listed below. Comments were due January 7, 2019. If any entity has provided funding for research, analysis, or commentary …
An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke
An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke
Cleveland State Law Review
The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …
Patent Pool Outsiders, Michael Mattioli
Patent Pool Outsiders, Michael Mattioli
Articles by Maurer Faculty
Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.
The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
Faculty Publications
This short paper comments on Professor Carrier's new article, Biologics: The New Antitrust Frontier. His article makes a profound initial contribution to a new area of scholarship, based on a large body of prior work considering antitrust issues relating to small molecule drugs. But Professor Carrier’s article, like my own forthcoming piece on innovation and competition in the biologics marketplace, is inherently speculative. We are making our best judgments about the nature of a still emerging marketplace and likely conduct in that marketplace, based on our understandings of a new regulatory framework that is itself still emerging, the broader legal …
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
All Faculty Scholarship
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is socially costly or …
Antitrust And The Design Of Production, Herbert J. Hovenkamp
Antitrust And The Design Of Production, Herbert J. Hovenkamp
All Faculty Scholarship
Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output, or …
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help courts and counsel …
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to confirm …
Market Power In The U.S. Economy Today, Jonathan Baker
Market Power In The U.S. Economy Today, Jonathan Baker
Presentations
Market concentration measures the extent to which market shares are concentrated between a small number of firms. It is often taken as a proxy for the intensity of competition. Indeed, in recent years changes in concentration have increasingly been used to argue that the intensity of competition is falling, that the growth of large firms with high market shares is driving up profits, damaging innovation and productivity, and increasing inequality. Some have argued that the competition rules need to be rewritten and a crackdown by overly antitrust agencies is required. The simplicity of this framing has found supporters across the …
Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp
Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp
All Faculty Scholarship
A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders. The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees. Public effects can also be significant. For example, technology sharing of complementary patents can improve product quality and variety. In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output reduction …
Understanding Online Markets And Antitrust Analysis, D. Daniel Sokol, Jingyuan Ma
Understanding Online Markets And Antitrust Analysis, D. Daniel Sokol, Jingyuan Ma
UF Law Faculty Publications
Antitrust analysis of online markets is a hot topic around the world. In a number of jurisdictions, online markets already have been subject to antitrust review in merger or conduct cases. In other jurisdictions, these issues are in a nascent stage of policy. A number of lessons can be learned from the cases to date involving online markets with regard to optimal antitrust policy. What these cases tend to share are some basic features as to how online markets work. Some jurisdictions understand the particular dynamics of multi-sided online markets. Other competition authorities sometimes may misidentify these markets. This essay …
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
UF Law Faculty Publications
Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …
Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo
Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo
All Faculty Scholarship
Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the …
Telecommunications: Competition Policy In The Telecommunications Space, Gene Kimmelman, Maureen K. Ohlhausen, Michael O’Rielly, Christopher S. Yoo, Stephen F. Williams
Telecommunications: Competition Policy In The Telecommunications Space, Gene Kimmelman, Maureen K. Ohlhausen, Michael O’Rielly, Christopher S. Yoo, Stephen F. Williams
All Faculty Scholarship
In today’s rapidly evolving telecommunications landscape, the development of new technologies and distribution platforms are driving innovation and growth at a breakneck speed across the Internet ecosystem. Broadband connectivity is increasingly important to our civil discourse, our economy, and our future. What is the proper role of government in facilitating robust investment and competition in this critical sector? When technology companies constantly have to reinvent themselves and adapt to survive – what role should government play? This panel of experts at the Federalist Society’s 2014 National Lawyers Convention discussed the current regulatory environment and how government policies – particularly regarding …
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
UF Law Faculty Publications
The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …
Tesla, Dealer Franchise Laws, And The Politics Of Crony Capitalism, Daniel A. Crane
Tesla, Dealer Franchise Laws, And The Politics Of Crony Capitalism, Daniel A. Crane
Articles
Public choice theory has long proclaimed that business interests can capture regulatory processes to generate economic rents at the expense of consumers. Such political exploitation may go unnoticed and unchallenged for long time periods because, though the rents are captured by a relatively small number of individuals or firms, the costs are widely diffused over a large number of consumers. The triggering event to expose and mobilize opposition to the regulatory capture may not arise until a new technology seeks to challenge the incumbent technology, thus creating a motivated champion to expose and oppose the regulatory capture and advocate for …
Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers
Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers
William H. Page
The Antitrust Division’s Microsoft case and the Federal Trade Commission’s Intel case both rested on claims that antitrust intervention was necessary to preserve innovation in technological platforms at the heart of the personal computer. Yet, because those very platforms support markets that are among the most innovative in the American economy, injudicious intervention might well have jeopardized the very innovation that antitrust should promote. In this article, we review the role of platforms in technological innovation and consider how antitrust standards should apply to them. We then examine how Microsoft resolved antitrust issues affecting platform design at various stages of …
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.
This paper is an effort to assist courts …
Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp
Antitrust And The Patent System: A Reexamination, Herbert Hovenkamp
Herbert Hovenkamp
Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and the patent system have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation, …
Teece's Competing Through Innovation, Herbert J. Hovenkamp
Teece's Competing Through Innovation, Herbert J. Hovenkamp
All Faculty Scholarship
This essay reviews David J. Teece's book, Competing Through Innovation: Technological Strategies and Antitrust Policies (2013).
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.
As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …