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Articles 1 - 12 of 12
Full-Text Articles in Law
Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang
Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang
All Faculty Scholarship
Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo
All Faculty Scholarship
The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Articles
State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
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.
Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov
Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov
Faculty Scholarship
This article examines the impact of four types of law-related uncertainty on the utility of risk-neutral agents. We find that greater legal or factual uncertainty makes agents worse off if enforcement is targeted (meaning that greater deviations from what the law demands lead to a greater probability of enforcement), or if sanctions are graduated (meaning that greater deviations from what the law demands result in higher sanctions). In contrast, agents are indifferent to changes in detection uncertainty induced by variation in enforcement resources or to changes in sanction uncertainty arising from legally irrelevant factors. Finally, risk-neutral agents benefit from greater …
Transatlantic Perspective On Judicial Deference In Administrative Law, Maciej Bernatt
Transatlantic Perspective On Judicial Deference In Administrative Law, Maciej Bernatt
Maciej Bernatt
The U.S. concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in the light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts. The paper analyzes whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts or both). As a starting point it is observed that it remains generally accepted in Europe that it is a role of courts …
Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras
Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras
Andrés Palacios Lleras
Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …
Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi
Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and …
Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi
Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi
Vanderbilt Law School Faculty Publications
Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose …
Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan
Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan
Articles
The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.
The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs
The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs
University of Michigan Journal of Law Reform
This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …
The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review
The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review
Michigan Law Review
In the wake of this uncertainty, this Note analyzes the proper scope of judicial review of consent decrees. The Note argues that to further the policies embodied in the APP A, courts should undertake intense review of proposed settlements before entering them as final judgments. Both the congressional intent in enacting the APP A and the public's interest in effective enforcement of the antitrust laws support intense judicial review. The Note then demonstrates that the deferential standard that some courts have applied is derived mainly from a case that is inapplicable to the review of consent decrees. Finally, the Note …