Law Commons^™

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

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Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

Recovering Contingency Within American Antimonopoly And Democracy, Laura Phillips-Sawyer

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*This is the fourth post in a symposium on William Novak’s New Democracy: The Creation of the Modern American State. For other posts in the series, click here.

In his chapter on antitrust law and the American antimonopoly tradition, the penultimate substantive chapter of the book, Novak covers much familiar ground. Yet, he is not focused on the conventional areas of debate in antitrust history, which have included recovering the congressional intent behind the Sherman Antitrust Act of 1890, recreating the economic logic of early antitrust jurisprudence, or surveying the doctrinal shift from “literalism” to the rule of …

Race-Ing Antitrust, Bennett Capers, Greg Day

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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 …

Voting Trusts And Antitrust: Rethinking The Role Of Shareholder Litigation In Public Regulation, From The 1880s To The 1930s, Laura Phillips Sawyer, Naomi R. Lamoreaux

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In 1903 the American Telephone and Telegraph Company (AT&T) bought a majority interest in the Kellogg Switchboard and Supply Company, allegedly with the aim of eliminating competition in the telephone business. Perhaps it is not remarkable that the Illinois Supreme Court ruled this acquisition of an Illinois corporation to be illegal. What is noteworthy, however, is that the court took this step at the behest of a group of Kellogg’s minority shareholders who had filed suit to block the deal. Judges had long responded skeptically to such actions, worried that shareholders would clog the courts with challenges to managers’ decisions …

Speech, Innovation, And Competition, Greg Day

Scholarly Works

Critics contend that concentrated power in digital markets has generated threats to free speech. For a variety of reasons, market power is naturally thought to concentrate in digital markets. The consequence is that “big tech” is said to face little competition; Facebook controls 72 percent of the social media market while the parent of YouTube (72 percent of the video market) is Google (92 percent of the search market). This landscape has potentially vested private companies with unprecedented power over the flow of information. If Facebook, for example, decides to ban certain types of speech or ideas, it would potentially …

Infracompetitive Privacy, Greg Day, Abbey R. Stemler

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One of the chief anticompetitive effects of modern business lies in antitrust’s blind spot. Platform-based companies (“platforms”) have innovated a business model whereby they offer consumers “free" and low-priced services in exchange for their personal information. With this data, platforms can design products, target consumers, and sell such information to third parties. The problem is that platforms can inflict greater costs on users and markets in the form of lost privacy than efficiencies generated from their low prices. Consumers, as examples, spend billions of dollars annually to remedy privacy breaches and, alarmingly, participate unwittingly in experiments designed to manipulate their …

Trade Association, State Building, And The Sherman Act: The U.S. Chamber Of Commerce, 1912-25, Laura Phillips Sawyer

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The U.S. Chamber of Commerce (USCC), and "organization of organizations," was conceived in 1912 in coordination with administrators at the Department of Commerce and Labor to promote the collection of commercially valuable trade information. A critical though often neglected, aspect of administrative state building has been the information-gathering and dissemination practices spearheaded by the Department of Commerce and later the Federal Trade Commission (FTC) in conjunction with the USCC. Rather than a strictly adversarial relationship, in the early twentieth century business-government relations created mutually constitutive administrative capacities in both private trade associations and public administrative agencies.

California Fair Trade: Antitrust And The Politics Of “Fairness” In U.S. Competition Policy, Laura Phillips Sawyer

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In the decades before World War II, U.S. antitrust law was anything but settled. Considerable pressure for antitrust revision came from the states. A perhaps unlikely leader, Edna Gleason, organized California’s retail pharmacists and coordinated trade networks to monitor and enforce Resale Price Maintenance (RPM) contracts, a system of price-fixing, then known as “fair trade.” Progressive jurists, including Louis Brandeis and institutional economist E. R. A. Seligman, supported RPM as a protection to independent proprietors. The breakdown of legal and economic consensus regarding what constituted “unfair competition” allowed businesspeople to act as intermediaries between heterodox economic thought and contested antitrust …

The Once And Future Irrelevancy Of Section 12(G), Usha Rodrigues

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Among more fundamental reforms, the JOBS ACt of 2012 amended Section 12(g) of the Securities Exchange Act and sought to increase the number of shareholders (from 500 to 2000) that a firm must have before it must make public disclosures. Argument on the floor of Congress focused on the undue burden the provision placed on companies. This Article examines data that invalidates those anecdotal concerns.

Indeed, the data reveal important insights: First, my hand-collected dataset shows that, contrary to public concerns about Section 12(g)'s onerous burdens, it only affects a few firms - (less than three percent of those going …

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

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U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

Patent Ships Sail An Antitrust Sea, Joseph S. Miller

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This brief essay arises from my participation in an April 2006 conference at Seattle University Law School, entitled At the Intersection of Antitrust and Intellectual Property Law: Looking Both Ways to Avoid a Collision. This intersection metaphor is a common one for describing antitrust law's relationship with intellectual property law, among both courts and commentators. This essay explores a different metaphor: patent ships sail an antitrust sea, protecting those aboard from competition's harshest dangers - but only for a time. The nautical metaphor evokes three ideas that the crossroads metaphor does not. First, vigorous competition is the pervasive, baseline reality; …

A Comparison Between U.S. And E.U. Antitrust Treatment Of Tying Claims Against Microsoft: When Should The Bundling Of Computer Software Be Permitted?, James F. Ponsoldt, Christopher D. David

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This article will analyze the recent U.S. and E.U. judicial approaches to tying charges which stem from software bundling. Part II reviews U.S. tying jurisprudence both generally and as applied to software bundling. Part III outlines the D.C. Circuit's approach to Microsoft's Windows/Internet Explorer bundle. Part IV briefly covers tying jurisprudence in the European Union. Part V describes the European Commission's (“E.C.”) analysis of Microsoft's Window/Windows Media Player bundle. By comparing the two approaches, Part VI shows that neither approach is ideal: although the U.S. approach offers too little guidance to software manufacturers seeking to avoid liability and unduly discounts …

The Antitrust Legality Of Pharmaceutical Patent Litigation Settlements, James F. Ponsoldt, W. Hennen Ehrenclou

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Several federal courts of appeal have recently ruled on the issue of whether a pharmaceutical patent infringement settlement, pursuant to which a generic drug manufacturer agrees to forgo marketing a particular drug in return for monetary payments from a patent-holding “pioneer” drug manufacturer, is a violation of antitrust law. These payments are termed “reverse payments” because, contrary to normal settlements, the plaintiff makes a lump sum payment to the defendant. Reverse payments have sparked considerable academic comment and controversy. Even more recently, the Federal Trade Commission (“Commission”) and the Solicitor General have expressed views on the issue, in the context …

Unilateral Refusals To Deal In Intellectual Property As Monopolistic Conduct, Bolanle Meshida

LLM Theses and Essays

Much has been written about the antitrust intellectual property conflict. The former promotes competition by prohibiting monopolies that harm competition, while the latter promotes competition by granting monopolies. This paper focuses on refusals to deal in intellectual property rights as violation of antitrust law. The paper explores refusals to deal as monopolistic conduct in antitrust law and relates this with refusals to deal in intellectual property. The thesis concludes with an analysis of the success rate of antitrust scrutiny of intellectual property rights.

The Bitter Has Some Sweet: Potential Antitrust Enforcement Benefit From Patent Law's Procedural Rules, Joseph S. Miller

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No abstract provided.

Lawyers' Value In Mergers And Acquisitions Under The New World Of Multidisciplinary Practices, Yunling Wu

LLM Theses and Essays

Lawyers are facing strong competition from accounting firms in mergers and acquisitions. Finance and accounting globalization and multidisciplinary practice makes accounting firms more competent, challenging lawyers’ value. However, lawyers create enormous value in mergers and acquisitions, such as structuring the form of transactions, managing due diligence investigation, reducing the costs of acquiring and verifying information, ensuring corporations follow the relevant regulations preventing legal liabilities, and preventing antitrust issues or invoking antitrust challenge. Teamwork will facilitate mergers and acquisitions transactions. Restricted multidisciplinary practice will not affect lawyers’ and accountants’ ethics and independence. Legal education should be improved to help lawyers become …

Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

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The twists and turns in the government’s antitrust case against Microsoft – from the D.C. Circuit’s stormy questioning at the two day oral argument in late February 2001 to its affirmance of the lion’s share of the government’s case in June 2001, and then from the settlement between the United States and Microsoft to the continuing battle by nine states for tougher sanctions – have garnered their share of press attention. But the high-profile antitrust case has not been the only Microsoft-centered controversy during the past year. Another involves the open source software movement about which Microsoft has professed grave …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

International Cooperative Enforcement Agreements And Antitrust Extraterritoriality In The 21st Century, Basil Dominic Udotai

LLM Theses and Essays

It is the focus of this thesis to critically evaluate the cooperative enforcement option proffered by the US authorities with a view to judging its attractiveness to other nations and its adequacy in solving problems posed by extraterritoriality in today's highly liberalized economy. In this regard, we shall see that the various models of cooperative enforcement arrangements adopted within the United States have failed to result in productive bilateral cooperation. This is due in large part, to the commitment of individual countries to satisfying national interests over cooperative obligations arising under the agreements. Because of these insufficiencies, the thesis reiterates …

Private And Governmental Barriers Affecting International Market Contestability: Current And Prospective Remedies, Massimo G. Manzoni

LLM Theses and Essays

Several interesting developments indicate that world attention is increasingly focusing on a "novel" category of trade barriers: non-tariff and non-border barriers. Following the Uruguay Round (the eighth round of negotiations under the General Agreement on Tariffs and Trade, "GATT"), scholars and officers of international organizations have expressed hope that international market contestability will become a major goal of future international policy negotiations. Their studies have focused on the links between trade policy and competition policy, and have concluded that anticompetitive business practices are a potent barrier to international market contestability and might cause a loss of confidence in the free …

Are Tuna And Dolphins The Same? A Rule Of Reason Approach To Resolve The Trade And Environment Conflict, Anantha K. Paruthipattu

LLM Theses and Essays

Trade and environment are both primary values in an ecologically and economically interdependent world; unleashing trade without regard to environmental impact is as detrimental as guarding the environment at the expense of trade and development. Tuna and dolphins have come to symbolize the policy struggle between trade and environment. In early 1990, the United States banned the import of tuna from Mexico and other countries that were fishing in a manner that damaged dolphins in the Eastern Tropical Pacific Ocean. Mexico challenged this ban before a GATT Panel, which ruled against the United States and held that the tuna ban …

The United States Implementing Legislation Of The Uruguay Round Agreement On Antidumping: Its Problems And Effects On The Bilateral Trade Relation Between The United States And Korea, Changdong Shin

LLM Theses and Essays

Antidumping laws were designed to protect domestic industries from unfair predatory price discrimination from foreign companies, yet these laws are often alleged to be used to protect domestic industries from competition. The U.S. has not been a stranger to these accusations since the 1980s as the U.S.’s trade deficit grew. The Uruguay Round negotiations were aimed at ending this protectionist use of antidumping laws, but many issues were left unsettled by the Uruguay Round antidumping agreement. In particular, interpretation of the agreement is deferred to each country primarily. Thus, the Dispute Settlement Body of the WTO can only determine a …

Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

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The past decade has witnessed an historic rejection of state control of markets in eastern Europe. Expansion of domestic antitrust immunity policy toward municipal businesses based upon federalism concerns, however, which occurred during the same period, has fostered autonomous governmental control of markets. The judicial application of the Parker doctrine to local government has tended to contradict the premise underlying several generations of U.S. foreign policy designed to support emerging competitive market economies outside the country. Academic analysis of the Parker doctrine during the 1980s was heated and creative. A number of commentators, with varying viewpoints, have addressed the bases …

Strategic Alliances: Emerging Trends In Future Corporate Business, Naresh Menghraj Gehi

LLM Theses and Essays

A strategic alliance is an arrangement for economic collaboration between firms at the same level of distribution, involving an exchange of critical skills aimed at buffering the core business strategy, technology, or markets of the partners. Research indicates that the care and thought of the strategic alliance partners increases with the importance of the venture to the strategic objectives of the entity. This paper describes the importance of strategic alliances in today’s competitive world. It examines the benefits of entering into strategic alliances, the legal implications of strategic alliances, and various industries where strategic alliances are dominant. Finally, this paper …

The Relevant Market In European Merger Law, Benedicte Haubold

LLM Theses and Essays

Due to the rapid acceleration of merger movements in the 1980s, the adoption of new merger regulation was a must for the European market. Before the new merger regulation was adopted in 1989, the European Commission used to apply the general competition rules of the Rome Treaty when dealing with mergers. The Commission used to interpret Articles 85 and 86 of the Rome Treaty as a means to condemn mergers that would lead to an abuse of a dominant position at a European level; at that time, there was an absence of complete and systematic control as far as structural …

U.S. Practices In Risk Assessment And Risk Management For Product Safety Under Article 2.2 Of The Agreement On Technical Barriers To Trade, Suckhong Ko

LLM Theses and Essays

Article 2.2 of the Agreement on Technical Barriers to Trade (TBT) was applied to the GATT member countries in 1995. This article provides national product safety agencies with requirements for risk assessment and risk management. However, the terms used in the article are broad and open to interpretation. This paper argues that vast discretion and broad terms cannot solve technical barriers effectively; the “minimum requirements” standard within Article 2.2 of the TBT fails to consider those countries whose technology in product safety is inferior to that of developed countries. The United States has some of the strongest product safety measures, …

"In The Twinkling Of An Eye": A Proporsal For The Standard Of Legality To Be Applied In Hospital Staff Privileges Cases, Sarah Bartholomew Ellerbee

LLM Theses and Essays

This paper addresses one of the most troublesome aspects of antitrust jurisprudence. What standard of legality governs cases dealing with medical staff privileges decisions? Heretofore, it was generally thought that only two options existed. The most frequently used standard of legality for this type of case is the rule of reason. In using this analysis, the court looks at the restraint of trade of the reasonableness of its nature, and its purpose and effect. The pro-competitive aspects of the conduct are weighed against the restraints that the conduct imposes on the competition. In health care cases, courts have looked at …

The Antidumping Laws And Principles Under The Gatt: Protecting Protection, The “Dunkel Drafts” And After The Uruguay Round, Heejang Yoo

LLM Theses and Essays

The antidumping laws of the U.S., Canada, Australia, European countries, and other developing countries are seen as protectionist of those nation’s local industries at the expense of foreign exporters. The fact that foreign exporters cannot obtain a meaningful judicial review of these antidumping laws only compounds the matter. This thesis urges nations to adopt multilateral competition-oriented antidumping polices and to abandon producer-oriented protectionist laws. Even if the notion of trade liberalization has been discredited under the GATT, the author advocates a return to such a goal in the context of antidumping laws. In reaching this conclusion, this thesis analyzes current …

The Application Of U.S. Antidumping Law To The Imports From The People's Republic Of China: Review Of Evolution And Need For Revolution, Li Yang

LLM Theses and Essays

Despite the dramatic increase in trade between the U.S. and China since the normalization of relations between the countries in 1979, China is still confronted with U.S. laws that hinder trade. The most serious threat to Sino-U.S. trade is the U.S. antidumping law, which authorizes the imposition of a duty on imported merchandise that the Department of Commerce determines is sold at less than fair value, if the U.S. International Trade Commission determines the U.S. industry in that field is materially injured. This law and cases interpreting it are examined. With its low wage rate and lack of cost accounting, …