Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Keyword
-
- Antitrust (6)
- Sherman Act (3)
- Anticompetitive conduct (2)
- Monopoly (2)
- Statutory approach (2)
-
- 1890 Congress (1)
- Anti-steering provisions (1)
- Antitrust law (1)
- Biotech (1)
- Cartel (1)
- Cartels (1)
- Civil rights (1)
- College athletes (1)
- Common law (1)
- Competition law and policy (1)
- Constitutional approach (1)
- Copyright Act (1)
- Costs of drug development (1)
- Creative Destruction (1)
- Credit cards (1)
- David A. Grenardo (1)
- Doctrinal incoherence (1)
- Domestic sale (1)
- England (1)
- Federal courts (1)
- Generic drugs (1)
- Gray market goods (1)
- High tech (1)
- ITC (1)
- Importation of goods (1)
Articles 1 - 18 of 18
Full-Text Articles in Law
The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol
The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol
Faculty Articles
The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …
Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood
Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood
Faculty Articles
Two-sided platforms serve two sets of customers and enable them to interact with each other. The five most valuable corporations in America – Amazon, Apple, Facebook, Google, and Microsoft – all operate two-sided platforms. But despite their growing power, the Supreme Court's American Express decision has made it harder to stop them from stifling competition. This Article systematically exposes the flaws in the Court's reasoning and identifies the principles that should govern future cases. The Court’s most fundamental error was to require plaintiffs in rule of reason cases to make an initial showing of consumer harm that weighs the effects …
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
Faculty Articles
Everyone involved in the business of major college athletics, except the athletes, receives compensation based on a free market system. The National Collegiate Athletic Association's (NCAA) cap on athlete compensation violates antitrust law, and athletes should be allowed to earn their free market value as everyone else does in this country. This Article provides a detailed approach to compensating college athletes under a free market model, which includes a salary cap, the terms of a proposed standard player 's contract, a discussion of who can represent players, and payment simulations for football and basketball teams. A free market approach would …
Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd
Consolidation And Innovation In The Pharmaceutical Industry: The Role Of Mergers And Acquisitions In The Current Innovation Ecosystem, Joanna Shepherd
Faculty Articles
Recent changes in the pharmaceutical industry have spurred an unprecedented wave of mergers and acquisitions. Some researchers and agencies have questioned whether pharmaceutical consolidation could impede drug innovation. However, as I explain in this Article, these concerns are largely based on an outdated understanding of the drug innovation ecosystem. Whereas a few decades ago almost all drug discovery took place inside traditional pharmaceutical companies, today most drug innovation is externally-sourced from biotech companies and smaller firms. Internal R&D is no longer the primary source, or even an important source, of drug innovation. As a result, analyses that focus on the …
Deterring Innovation: New York V. Actavis And The Duty To Subsidize Competitors' Market Entry, Joanna Shepherd
Deterring Innovation: New York V. Actavis And The Duty To Subsidize Competitors' Market Entry, Joanna Shepherd
Faculty Articles
This Article examines a relatively new business strategy in the pharmaceutical market -- "product hopping" or "product replacement" -- in which brand pharmaceutical companies shift their marketing efforts from a drug nearing the end of its patent period to a new, substitute drug with a longer patent life. In July 2015, the Second Circuit issued an opinion in the first appellate case addressing pharmaceutical product replacement, New York ex rel. Schneiderman v. Actavis PLC. This Article explains that product replacement is the predictable business response to the incentives created by patent law and state substitution laws, and withdrawing an …
Promoting Innovation, Matthew Sag, Spencer Weber Waller
Promoting Innovation, Matthew Sag, Spencer Weber Waller
Faculty Articles
This Essay proceeds as follows. We briefly introduce the concept of creative destruction and its place in Schumpeter’s work in Part II. In Part III we explain why a truly Schumpeterian competition policy demands more than a laissez faire approach. We explain why the law must preserve opportunities and incentives for creative destruction at all stages of innovation and we review four key policy areas of antitrust law from this innovation-focused perspective: unilateral conduct cases (Part III.A), cases at the intersection of IP and antitrust (Part III.B), Sherman Act section 1 cases (Part III.C), and merger policy (Part III.D). In …
Collusion To Control A Powerful Customer: Amazon, E-Books, And Antitrust Policy, John B. Kirkwood
Collusion To Control A Powerful Customer: Amazon, E-Books, And Antitrust Policy, John B. Kirkwood
Faculty Articles
A federal judge recently held that Apple violated antitrust law by conspiring with leading publishers to raise e-book prices. While the Justice Department characterized the case as routine, many commenters argued it should not have been brought. In their view, the real villain was Amazon, whose power and aggressive behavior threatened to create a monopoly, reduce consumer choice, and diminish the vitality of book publishing. In the face of such a powerful customer, the publishers should have been allowed to collude. This article addresses that issue, in the e-books case and in general. In the e-books case, collusion was almost …
League Structure & Stadium Rent Seeking - The Role Of Antitrust Revisited, David Haddock, Tonja Jacobi, Matthew Sag
League Structure & Stadium Rent Seeking - The Role Of Antitrust Revisited, David Haddock, Tonja Jacobi, Matthew Sag
Faculty Articles
Professional North American sporting teams receive enormous pub for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries-the structure of league control-that enables rent-seeking by American teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support our claim, as …
The Essence Of Antitrust: Protecting Consumers And Small Suppliers From Anticompetitive Conduct, John B. Kirkwood
The Essence Of Antitrust: Protecting Consumers And Small Suppliers From Anticompetitive Conduct, John B. Kirkwood
Faculty Articles
The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct – conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than total welfare, and it is now espoused by the majority of courts. Proponents of total …
Rethinking Antitrust Policy Toward Rpm, John B. Kirkwood
Rethinking Antitrust Policy Toward Rpm, John B. Kirkwood
Faculty Articles
Resale price maintenance is a particularly dangerous vertical intrabrand restraint. Because of its direct impact on price competition, it is likely to harm consumers in a substantial number of cases. At the same time, RPM is likely to benefit consumers in a significant number of other cases. Given these mixed effects, the ideal legal standard would distinguish between those instances in which RPM is anticompetitive and those in which it is procompetitive. While Leegin thought that the full rule of reason could play this role, it did not acknowledge what every scholar who has looked at the issue has found-that …
The Path To Profitability: Reinvigorating The Neglected Phase Of Merger Analysis, Jack Kirkwood
The Path To Profitability: Reinvigorating The Neglected Phase Of Merger Analysis, Jack Kirkwood
Faculty Articles
This article reviews every litigated federal merger case since 1992, when the federal enforcement agencies revised the entry section of their merger guidelines. This review, unprecedented in the literature, shows that courts continue to neglect the entry phase of merger analysis, the phase that addresses whether, if the merged firm raised prices, new firms would enter the market and restore competition. In determining whether new entry is likely, most courts do not ask whether it would be profitable, but whether the market is protected by entry barriers. This “yes or no” approach is flawed, for all markets have some barriers …
The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, Jack Kirkwood
The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, Jack Kirkwood
Faculty Articles
This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen …
Beyond Eco-Imperialism: An Environmental Justice Critique Of Free Trade, Carmen G. Gonzalez
Beyond Eco-Imperialism: An Environmental Justice Critique Of Free Trade, Carmen G. Gonzalez
Faculty Articles
The article contributes to the trade and environment literature by assessing the claim that industrialized country proposals to integrate environmental protection into the WTO trade regime constitute environmental imperialism - the imposition of industrialized country values and preferences on less powerful nations. This claim is usually based on two distinct premises. The first is that environmental protection is a luxury that poor countries can ill afford. The second is that wealthy countries have played a leadership role in the protection of the global environment. The article questions these assumptions. It argues that environmental protection is essential to well-being of the …
Using Section 337 Of The Tariff Act Of 1930 To Block Materially Different Gray Market Goods In The Common Control Context: Are Reports Of Its Death Greatly Exaggerated?, Margo A. Bagley
Faculty Articles
This Comment examines the primary reasons for trademark owners within the common control exception to revisit section 337 when faced with materially different gray market goods. Part One discusses the issues in and history of the gray market goods controversy, and the common control exception. Part Two focuses on section 337: how it works, its use in gray market goods cases, and how it has changed as a result of amendments in the Omnibus Trade and Competitiveness Act of 1988 and in the Uruguay Round Agreements Act of 1994. Part Three traces the changes in the gray market landscape favorable …
Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas Arthur
Workable Antitrust Law: The Statutory Approach To Antitrust, Thomas Arthur
Faculty Articles
This Article will demonstrate the superiority of the statutory approach for producing more stable and consistent antitrust law. Part I details the development of the constitutional approach to antitrust, demonstrating how the rise of the pragmatic and instrumentalist view of law led to the displacement of the original statutory approach to antitrust. Part II illustrates that the constitutional approach fundamentally cannot produce workable antitrust law. It summarizes both the doctrinal disarray that continues to plague each major area of antitrust law and the irreconcilable policy prescriptions of the contending antitrust "schools." Part III presents an alternative, statutory approach to antitrust …
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Faculty Articles
This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal …
Elimination Of The Conduct Requirement In Government Monopolization Cases, John B. Kirkwood, Alfred F. Dougherty, James D. Hurwitz
Elimination Of The Conduct Requirement In Government Monopolization Cases, John B. Kirkwood, Alfred F. Dougherty, James D. Hurwitz
Faculty Articles
On July 12, 1978, Professor John Flynn of the University of Utah Law School urged the National Commission for the Review of Antitrust Laws and Procedures (National Commission or NCRALP) to consider recommending that Congress amend section 2 of the Sherman Act to permit the government to challenge persistent and substantial monopoly power without showing that the monopoly power was acquired or maintained through objectionable conduct. In Professor Flynn's view, eliminating the prevailing conduct requirement in certain government monopolization cases would expedite litigation and produce more effective remedies, two of the National Commission's central objectives. First, this article explains that …
Child, Family And State: Problems And Materials On Childrenand The Law, Henry Mcgee
Child, Family And State: Problems And Materials On Childrenand The Law, Henry Mcgee
Faculty Articles
Professor McGee reviews THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF, by Robert H. Bork. Professor McGee argues that it would be easy to balance the allocative efficiency and the productive efficiency effects of various transactions if we could generate information for the economic models as easily as it is done in the model of perfect competition-simply by assuming it. Since information is costly in the real world, however, we must develop proxies or general rules, formed with the guidance of economic analysis, that seem likely to produce more good than harm as the law is applied to various …