Law Commons^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Competition For Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has …

Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp

All Faculty Scholarship

A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …

Distributive Justice And Consumer Welfare In Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The dominant view of antitrust policy in the United States is that it is intended to promote some version of economic welfare. More specifically, antitrust promotes allocative efficiency by ensuring that markets are as competitive as they can practicably be, and that firms do not face unreasonable roadblocks to attaining productive efficiency, which refers to both cost minimization and innovation.

The distribution concern that has dominated debates over United States antitrust policy over the last several decades is whether antitrust should adopt a “consumer welfare” principle rather than a more general neoclassical “total welfare” principle. In The Antitrust Paradox Robert …

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Joe Bauer Presented "Enforcement Issues Under American Antitrust Laws" At The University Of Tilburg (Holland) Center For Law And Economics On December 19, 2013, Joseph P. Bauer

Faculty Lectures and Presentations

Joe Bauer presented a seminar at the University of Tilburg (Holland) Center for Law and Economics on December 19. His topic was Enforcement Issues under American Antitrust Laws. View PowerPoint slides of lecture by clicking pdf link.

A Propósito De Un Elemento Esencial De La Defensa De La Competencia En Europa: Las Facultades De Investigación De La Comisión En Materia De Inspección (About An Essential Element Of The European Antitrust: Commission Investigation Faculties Of Inspection), Jesús Alfonso Soto Pineda

Jesús Alfonso Soto Pineda

En base a la prolongación de las facultades de investigación que le han sido proporcionadas a la Comisión Europea para combatir la existencia de acuerdos colusorios en el ámbito comunitario, el presente artículo expone las condiciones en las cuales el poder percibido con mayor sensibilidad desde el terreno empresarial, la inspección, debe ser puesto en marcha por la máxima autoridad comunitaria de competencia, analizando en detalle la contradicción natural que se presenta entre los objetivos propios de la inspección y dos postulados básicos relacionados con el derecho de defensa, como lo son el secreto profesional y el derecho a guardar …

Policing The Firm, D. Daniel Sokol

UF Law Faculty Publications

Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrongdoing. Thus far, antitrust scholarship and policy have ignored this insight in the cartel context. This Article suggests how to improve antitrust enforcement by focusing enforcement efforts on changing the incentives of internal firm compliance.

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

All Faculty Scholarship

In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …

The Role Of Monopolization And Abuse Of Dominance In Competition Law, Spencer Weber Waller

Spencer Weber Waller

No abstract provided.

The Monopolization/Abuse Offense, Spencer Weber Waller

Spencer Weber Waller

No abstract provided.

Professional Activities And The Antitrust Laws, Joseph P. Bauer

Joseph P. Bauer

No abstract provided.

Understanding Behavioral Antitrust, Avishalom Tor

Avishalom Tor

Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, …

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Avishalom Tor

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of …

Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor

Avishalom Tor

The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited …

Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor

Avishalom Tor

This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …

Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor

Avishalom Tor

One of the core assumptions of the traditional economic approach to antitrust law is that competitors are perfectly rational, profit-maximizing, decision makers. Sometimes, this assumption serves as a useful simplification of business behavior, providing an effective foundation for antitrust doctrine. At other times, however, assuming strictly rational behavior on the part of competitors is not “approximately right” but, instead, “perfectly wrong.” In these latter cases, the reliance on the perfect rationality assumption can lead scholars to mispredict market behavior and, possibly, advocate erroneous prescriptions for antitrust policy. In contrast, a behaviorally informed approach to antitrust law is based on scientific …

Insurance (Annual Survey Of The Law Of New Jersey, 1954-55), Robert Rodes

Robert Rodes

No abstract provided.

Back To The Future: Rediscovering Equitable Discretion In Trademark Cases, Mark P. Mckenna

Mark P. McKenna

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their …

Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark Mckenna

Mark P. McKenna

No abstract provided.

Senator Rufus Blodgett: The Sherman Anti-Trust Act’S Lone Dissenter, Steven Lavender

Steven Lavender

No abstract provided.

A Channel Worth Changing? The Individual Regional Sports Network: Proliferation, Profits, Parity, And The Potential Administrative And Antitrust Issues That Could Follow, Stephen Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Public Policy In International Investment And Trade Law: Community Expectations And Functional Decision-Making, Diane A. Desierto

Diane A Desierto

This article uses a contextual policy-oriented approach to assess how the standing debate on a State's regulatory freedom has been treated within international investment law (e.g. case-by-case interpretation of variant treaty design in each case), in contrast with how the issue of domestic regulatory autonomy in international trade law has evolved towards coordination (e.g. attempted harmonization of the same set of instruments). The article submits a different view from many primarily trade law/investment law scholars (and other systemic integrationists who idealize a seamless shift from trade law to investment law), who have postulated that this fundamental issue of State regulatory …

Eu 경쟁당국의 기습현장조사, Hee-Eun Kim

Hee-Eun Kim

No abstract provided.

Emerging Issues With Respect To Merger Enforcement Standards, Daniel F. Kolb, Edward W. Large, David Boies, Thomas Dieterich, Malcolm R. Pfunder, Joseph P. Bauer

Joseph P. Bauer

No abstract provided.

Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer

Joseph P. Bauer

Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. …

Developments In Section Two Of The Sherman Act, Joseph P. Bauer

Joseph P. Bauer

The issues raised in this Symposium are of great interest and timeliness. During the 1940s and 1950s, the Supreme Court explored the role of Section 2 of the Sherman Act as an essential element in the antitrust regime. As was true with antitrust generally, courts expanded the reach of Section 2, frequently concluding that the complained-of conduct constituted unlawful monopolization or attempts to monopolize, and approving injunctions forbidding the continuation of exclusionary or predatory practices and orders leading to the breakup of the monopoly itself. However, after the Grinnell decision in 1966, and the Otter Tail case almost a decade …

The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer

Joseph P. Bauer

No abstract provided.

Reflections On The Manifold Means Of Enforcing The Antitrust Laws: Too Much, Too Little, Or Just Right?, Joseph P. Bauer

Joseph P. Bauer

Lately, much attention has been given to the scope of the antitrust laws. This discussion has two overlapping components: (1) consideration of the substantive doctrines specifying the behavioral or structural changes that are or are not unlawful and the appropriate methodology; and (2) analysis for making those determinations with attention given to the appropriate vehicles for enforcing the antitrust laws. Some argue that the antitrust laws proscribe activities that are either pro-competitive or at worst benign. Further, they assert that the multiplicity of antitrust enforcers and enforcement devices has resulted in undue burdens, including excessive cost, time delay, and forestalling …

Per Se Illegality Of Concerted Refusals To Deal: A Rule Ripe For Reexamination, Joseph P. Bauer

Joseph P. Bauer

Section 1 of the Sherman Act proscribes [e]very contract, combination . . . or conspiracy, in restraint of trade. Early Supreme Court cases interpreting this provision held that it required a determination by the trier of fact of the reasonableness of the challenged conduct in each case — an approach which came to be known as the rule of reason. In subsequent cases, however, the Court has held that certain conduct is unreasonable per se. That is, once a court has determined that such conduct has taken place, it is foreclosed from undertaking an inquiry into the reasonableness of that …