Law Commons^™

Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh

All Faculty Scholarship

The Federal Circuit’s decisions in Oracle v. Google conflict with this Court’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. Based on the fundamental channeling principle enunciated in Baker v. Selden, as reflected in § 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of other machines, are …

Preventing The Curse Of Bigness Through Conglomerate Merger Legislation, Robert H. Lande, Sandeep Vaheesan

All Faculty Scholarship

The antitrust laws, as they are presently interpreted, are incapable of blocking most of the very largest corporate mergers. They successfully blocked only 4 of the 61 largest finalized mergers and acquisitions (defined as the acquired firm being valued at more than $10 billion) that occurred between 2015 and 2018. The antitrust laws also would permit the first trillion-dollar corporation, Apple, to merge with the third largest corporation, Exxon/Mobil. In fact, today every U.S. corporation could merge until just 10 were left – so long as each owned only 10% of every relevant market.

Even though the Congresses that enacted …

Cguppi: Scoring Incentives To Engage In Parallel Accommodating Conduct, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis

Georgetown Law Faculty Publications and Other Works

We propose an index for scoring coordination incentives, which we call the “coordination GUPPI” or cGUPPI. While the cGUPPI can be applied to a wide range of coordinated effects concerns, it is particularly relevant for gauging concerns of parallel accommodating conduct (PAC), a concept that received due prominence in the 2010 U.S. Horizontal Merger Guidelines. PAC is a type of coordinated conduct whereby a firm raises price with the expectation—but without any prior agreement—that one or more other firms will follow and match the price increase. The cGUPPI is the highest uniform price increase that all the would-be coordinating firms …

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice E. Stucke, Allen Grunes

College of Law Faculty Scholarship

In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

All Faculty Scholarship

The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

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 …

Why Antitrust Damage Levels Should Be Raised, Robert H. Lande

All Faculty Scholarship

The conventional wisdom is that current antitrust damage levels are too high, lead to overdeterrence, and should be cut back. Although most agree that threefold damages are fine, at least for cartels, the combination of treble damages to direct purchasers and another treble damages to indirect purchasers typically is denounced as duplicative, a "mess," or the equivalent of the use of "cluster bombs" on defendants. This article, however, will assert the opposite. This article will argue that, if the current antitrust damage levels are examined carefully, they do not even total treble damages, and overall are not high enough to …

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

All Faculty Scholarship

The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

Legalizing Merger To Monopoly And Higher Prices: The Canadian Competition Tribunal Gets It Wrong, Alan A. Fisher Ph.D., Robert H. Lande, Stephen F. Ross

All Faculty Scholarship

This article analyzes the Canadian Superior Propane decision, apparently the first merger decision in world history to consider explicitly what to do when a merger was predicted to lead to both higher consumer prices and to net efficiencies. The article advocates analyzing the merger under a "price to consumers" or "consumer welfare" standard, rather than a total efficiency standard, and advocates that the enforcers and the courts block such mergers.

Empirical Methods In Antitrust Litigation: Review And Critique, Jonathan Baker, Daniel Rubinfeld

Articles in Law Reviews & Other Academic Journals

The use of empirical methods in antitrust has been growing at an exponential rate. It is now commonplace for multiple regression and other statistical methods to be utilized in merger cases, especially those involving predictions of the price increases that may result from the strategic decisions of the merging firms. These methods are also prominently employed in civil nonmerger investigations by the federal antitrust enforcement agencies (including price fixing, monopolization, and exclusive dealing cases) and in private litigation (including damage claims and class action suits). This article surveys the methodologies that have been used and the range of questions that …

The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz

Faculty Scholarship

On July 1, 1997, the Federal Trade Commission (FTC) closed its investigation of the merger of the Boeing Company (Boeing) and the McDonnell Douglas Corporation (McDonnell Douglas), essentially approving the merger. The proposed $14 billion merger was quite significant, as it would unite the first and third largest civil aircraft companies in the world. Although the proposed merger had passed muster under U.S. antitrust laws, Boeing still faced the obstacle of gaining approval from the European Commission (EC), the antitrust enforcement agency of the European Union (EU). The EC initially sought to reject the merger and to levy heavy penalties …

Post-Chicago School Paradigm Emerges: A New Foundation For Antitrust Law, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Recent Trends In Merger Enforcement In The United States: The Increasing Impact Of Economic Analysis, Robert H. Lande, James Langenfeld

All Faculty Scholarship

From its modern origins more than thirty years ago federal merger policy has centered around the use of standard surrogates for market power to make presumptions about the likely effects of mergers. Since that time it has been evolving towards an increasingly complex approach as economic considerations have expanded their influence on merger policy. This trend was solidified in the 1982 revision of the Department of Justice's Merger Guidelines, accelerated by the Department of Justice and Federal Trade Commission 1992 Horizontal Merger Guidelines' increased emphasis on unilateral (as opposed to collusive) anticompetitive effects, and has reached new heights in the …

Identifying The Firm-Specific Cost Pass-Through Rate, Jonathan Baker, Orley Ashenfelter, David Ashmore, Signe-Mary Mckernan

Articles in Law Reviews & Other Academic Journals

A merger that permits the combined company to reduce the marginal cost of producing a product creates an incentive for it to lower price. Accordingly, the rate at which cost changes are passed through to prices (along with an estimate of the magnitude of cost reductions that would result from merger) matters to the evaluation of the likely competitive effects of an acquisition. In this paper, we describe our empirical methodology for estimating the cost pass-through rate facing an individual firm, and for distinguishing that rate from the rate at which a firm passes through cost changes common to all …

When Should States Challenge Mergers: A Proposed Federal/State Balance, Robert H. Lande

All Faculty Scholarship

This article critically analyzes the current system of United States merger enforcement, under which both federal and State antitrust enforcers scrutinizes and potentially can challenge any merger that affects interstate commerce. This article develops and proposes an alternative, a voluntary division of responsibility patterned after the European Union's approach. Under this alternative federal enforcers normally would defer to State enforcers for certain specified mergers, and State enforcers normally would defer to federal enforcers for other specified mergers.

The Contested Merger: Introduction And Fact Summary, Jonathan Baker

Presentations

"The Contested Merger" program arranged by the National Institute Committee of the Antitrust Section; and ABA's Division for Professional EducationThe program began with meetings set in corporate offices, in which the Yankee executives identified the business reasons behind the transaction, then consulted with in-house and outside counsel to assess the deal's antitrust risks and structure it. The transcript of this lesson in client counseling is reprinted following this introduction, as is the transcript of the panel discussion in which program participants offer a "reallife" analysis of the events of the program thus far.

The Gains From Merger Or Collusion In Product Differentiated Industries, Jonathan Baker, Timothy Bresnahan

Articles in Law Reviews & Other Academic Journals

A merger in an industry with differentiated products increases the market power of the merging firms to the extent that their products are close substitutes and that other firms produce only more distant substitutes.' Such a merger makes the residual demand curve of each partner steeper, by shifting each in the direction of the industry demand curve. The extent of this increase in market power depends upon the own-elasticity of demand for each merging firm's product, as well as the cross-elasticity of demand for each with all other firms' products. As a result, evaluating the effect of a merger between …

Legal Issues Of Market Dominance: A Comparative Study, Helmut Gottlieb

LLM Theses and Essays

Chapter I of this paper will focus on the current approach to the delimitation of the relevant market, the determination of market concentration and the legal requirements for a challenge of market dominating enterprises. In Chapter II, because of the interdependency between monopoly and antimerger policy, the present legal situation of mergers shall be analyzed. Finally, the theories of the problem of the jurisdictional reach of antitrust laws will be considered in Chapter III.

The New Merger Guidelines And The Herfindahl-Hirschman Index, Stephen Calkins

Law Faculty Research Publications

No abstract provided.

Challenging Conglomerate Mergers Under Section 7 Of The Clayton Act: Today's Law And Tomorrow's Legislation, Joseph P. Bauer

Journal Articles

Federal antitrust enforcement has undergone a radical transformation in the past decade. The change in enforcement patterns has been most noticeable in the area of merger law. The magnitude of this shift, the confusion that has characterized the case law accompanying it, and the increasing prominence of conglomerate mergers as a means to corporate expansion form the basis for this article. The primary source for regulation of mergers under the antitrust laws is section 7 of the Clayton Act, which proscribes those corporate acquisitions “where in any line of commerce in any section of the country, the effect of such …