Law Commons^™

Gotta Get Those Ill-Gotten Gains: Improving The Ftc's Authority To Seek Disgorgement In Antitrust Cases, Kathryn Buggs

Michigan Law Review

Disgorgement is an equitable monetary remedy that requires a defendant to give up all ill-gotten gains from their illegal conduct. Unlike damages, which can be compensatory, deterrent, or even punitive in nature, disgorgement focuses primarily on deterring future illegal conduct. It relies on the simple moral premise that wrongdoers should not be allowed to retain the profits of their wrongdoing. Especially in antitrust litigation involving complex, multilayered supply chains, damages can underestimate the true harm suffered as a result of anticompetitive conduct. Disgorgement, if calculated properly and litigated thoughtfully, has the potential to provide redress for the full amount of …

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Why Do Corporations Merge And Why Should Law Care?, Chris Sagers

University of Michigan Journal of Law Reform

Mergers and acquisitions are extraordinarily prevalent in the United States, generating massive expenditures every year. However, a serious empirical puzzle lies at the heart of all that activity. That empirical phenomenon’s most remarkable feature by far is that even though it is well established in an extensive literature and implies far-reaching policy consequences, American law ignores it entirely.

Generations of researchers have failed to find evidence that merger and acquisition activity generates any lasting benefits for the combining firms’ owners or anyone else. No one seriously doubts that efficiencies of scale or technological integration are real or that acquisitions sometimes …

The Death Of Amateurism In The Ncaa: How The Ncaa Can Survive The New Economic Reality Of College Sports, Claire Haws

Michigan Business & Entrepreneurial Law Review

In October 2019, the National Collegiate Athletic Association (NCAA) announced it would be making a major change to its rules: student-athletes would soon be permitted to receive compensation for the use of their name, image and likeness (NIL). The announcement came in response to an increasing volume of state legislation allowing for student-athlete NIL compensation. On July 1, 2021, student-athletes finally had the opportunity to receive NIL benefits as the NCAA’s interim NIL policy went into effect. This change represents a nail in the coffin for traditional notions of amateurism.

For decades, the NCAA defended its rules from antitrust challenges …

Charting The Reform Path, Sanjukta Paul

Michigan Law Review

A Review of Inequality and the Labor Market: The Case for Greater Competition. Edited by Sharon Block and Benjamin H. Harris.

The Impact Of Amex And Its Progeny On Technology Platforms, Kacyn H. Fujii

Michigan Law Review

Big Tech today faces unprecedented levels of antitrust scrutiny. Yet antitrust enforcement against Big Tech still faces a major obstacle: the Supreme Court’s 2018 decision in Ohio v. American Express. Popularly called Amex, the case imposed a higher initial burden on antitrust plaintiffs in cases involving two-sided markets. Two-sided markets connect two distinct, noncompeting groups of customers on a shared platform. These platforms have indirect network effects, meaning that one group of customers benefits when more of the second group of customers joins the platform. Two-sided markets are ubiquitous in the technology sector, encompassing social media, search engines, …

Reviving Antitrust Enforcement In The Airline Industry, Jonathan Edelman

Michigan Law Review

The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers.

More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade …

Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas

Michigan Technology Law Review

Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.

This Article argues that despite …

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this Article assesses the historical …

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.

Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol

Michigan Law Review

Review of Tim Wu's The Curse of Bigness: Antitrust in the New Gilded Age.

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus

University of Michigan Journal of Law Reform

Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental flaws …

Home-Field Disadvantage: How The Organization Of Soccer In The United States Affects Athletic And Economic Competitiveness, Carolina I. Velarde

Michigan Law Review

The United States men’s soccer team failed to qualify for the 2018 World Cup. In the aftermath, soccer followers questioned the organizational structure supervised by the United States Soccer Federation. An analysis of the relationships between professional soccer leagues reveals potentially anticompetitive practices that may contribute to the subpar performance of the U.S. Men’s National Team. This Note argues that the United States Soccer Federation is engaged in economically anticompetitive behavior that impedes the development of American soccer. Certain reforms, including an open-league system and player transfer fees at the youth development level, would enhance the economic and athletic competitiveness …

How Meyer V. Uber Could Demonstrate That Uber And The Sharing Economy Fit Into Antitrust Law, Nicholas Andrew Passaro

Michigan Business & Entrepreneurial Law Review

Recently, Uber driver (and former Uber CEO) Travis Kalanick has been sued under antitrust laws. The plaintiffs argue that Mr. Kalanick and the other Uber drivers have engaged in a price fixing arrangement that violates §1 of the Sherman Act. The case, Meyer v. Uber (originally Meyer v. Kalanick), is still being litigated. This Comment will analyze each side’s potential arguments and will ultimately conclude that the court should find Uber drivers not guilty of a Sherman Act violation. This determination will be based on: the merits of the various arguments, how such a holding would fit within the …

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Economic Law, Inequality, And Hidden Hierarchies On The Eu Internal Market, Damjan Kukovec

Michigan Journal of International Law

This Article has several aims. First, the aim is to show the continuing importance and relevance of antitrust and international trade lawyers in countering the concentration of power in the hands of the few or in some geographic areas of the world, if some of the assumptions of antitrust and trade are adjusted. Second, the goal is to articulate a particular analysis from the perspective of the (European) periphery. As the recent Euro crises and the near exit of Greece from the Union show, the European prospect of development for all has not arrived. This Article will articulate the privilege …

Patent Privateers And Antitrust Fears, Matthew Sipe

Michigan Telecommunications & Technology Law Review

Patent trolls are categorically demonized as threatening American innovation and industry. But whether they are a threat that antitrust law is equipped to deal with is a complex question that depends on the particular type of patent troll and activities they engage in. This Article looks specifically at privateer patent trolls: entities that acquire their patents from operating entities and assert them against other industry members. In the particular context of privateering, antitrust law is almost certainly not the proper legal solution. Privateering does raise significant issues: circumventing litigation constraints, evading licensing obligations, and raising the cost and frequency of …

Understanding And Regulating Twenty-First Century Payment Systems: The Ripple Case Study, Marcel T. Rosner, Andrew Kang

Michigan Law Review

Ripple is an open-source Internet software that enables users to conduct payments across national boundaries in multiple currencies as seamlessly as sending an email. This decentralized Internet payment protocol could provide a cure to an inefficient cross-border payments system. Although Ripple’s technology can reduce significant risks and costs that exist in the internationalpayments system, regulators should adopt a new regulatory framework that responds to how this technology works. This Note performs two functions to help regulators realize this goal. It first helps regulators and other market participants understand how Ripple operates by explaining what Ripple is and comparing it to …

Astroturf Campaigns: Transparency In Telecom Merger Review, Victoria Peng

University of Michigan Journal of Law Reform

Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This …

The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus

University of Michigan Journal of Law Reform

This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School’s view that antitrust law should be …

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

How Not To Apply The Rule Of Reason: The O’Bannon Case, Michael A. Carrier

Michigan Law Review First Impressions

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim

Michigan Telecommunications & Technology Law Review

This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it …

Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff

Michigan Telecommunications & Technology Law Review

“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …

Aftermarketfailure: Windows Xp's End Of Support, Andrew Tutt

Michigan Law Review First Impressions

After 12 years, support for Windows XP will end on April 8, 2014. So proclaims a Microsoft website with a helpful clock counting down the days. "What does this mean?" the website asks. "It means you should take action." You should "migrate to a current supported operating system - such as Windows 8.1 - so you can receive regular security updates to protect [your] computer from malicious attacks." The costs of mass migration will be immense. About 30% of all desktop PCs are running Windows XP right now. An estimated 10% of the U.S. government's computers run Windows XP, including …

Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform, Anne Mcginnis

University of Michigan Journal of Law Reform

Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid …

Market Power In Power Markets: The Filed-Rate Doctrine And Competition In Electricity, Sandeep Vaheesan

University of Michigan Journal of Law Reform

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale electricity markets exist everywhere today. Independent power producers can construct generation facilities and sell their output to utilities and industrial customers through bilateral contracts. In many regions, centralized power markets now facilitate the sale of billions of dollars in electricity annually through auctions. Although market forces have replaced direct price regulation in electricity, antitrust enforcement has not expanded its role commensurately. A lack of competition has been a serious problem in …

Model-Based Pricing In Hurricane Insurance: A Case Study For Judicial Reform Of The Mccarran-Freguson Act, Benjamin Holland Able

University of Michigan Journal of Law Reform

The McCarran-Ferguson Act (MFA) exempts various aspects of state insurance operations from federal antitrust enforcement. This exemption is a source of longstanding controversy, due in part to its potentially harmful effect on consumers in product pricing. In hurricane insurance, there is a burgeoning debate concerning insurers' use of predictive computer models rather than shared loss data to set premiums for the industry. By using these models in hurricane-prone states, insurers have increased the price of hurricane insurance dramatically. Where these new prediction methods are used, MFA exemption may facilitate supracompetitive pricing in ways its architects could not have foreseen. This …