Law Commons^™

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …

Regulating The Food Truck Industry: An Illustration Of Proximity And Sanitation Regulations, Nicholas Alvarez

Journal of Food Law & Policy

Manny Hernandez, a Chicago food truck owner, would wake up in the middle of the night and slowly travel by foot around downtown Chicago carrying a 200-foot rope. The rope was used to measure the distance from the doors of brick-and-mortar restaurants to possible parking locations for his food truck. A Chicago ordinance prohibited food trucks from operating within 200 feet of the front door of any brick-and-mortar restaurant. Furthermore, Manny could not just find one spot; he needed to find many spots because Chicago law also stated that food trucks were only allowed to park at one location for …

Comparative Advertising And Its Legitimacy: A Comparative Legal Study, Dr. Bakhtiar Saber Bayez

UAEU Law Journal

Commercial comparative advertising is that advertising which is exposed to someone who is competitor or exposed to goods or services offered by the competitor , and that advertising will not be project unless if it was impartial and honest and does not aim to harm a third party, whether if he was merchant competitor or an ordinary consumer, that means the relationship between commercial advertising and comparative mislead the consumer is not inevitable and is not correct to connect between them in all cases, but on the contrary, we believe that the presence of commercial comparative advertising elucidate the way …

Equalizing The Playing Field: The Time Has Come For Secondary Meaning In The Making In Small Restaurant Trade Dress Infringement Cases, John Pesek

Journal of Food Law & Policy

Imagine it is opening day for your first restaurant. It has taken months, if not years, to get to this point and you have spent a lot of money in developing the menu, artist style, and feel for the restaurant. A few months after the opening of your restaurant, a competing restaurant, right down the block from your restaurant, opens its doors; its menu and overall look are virtually indistinguishable from your restaurant. You are left wondering what remedies, if any, you have as a small restaurant owner. This was the case for Chef Rebecca Charles and her Pearl Oyster …

Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp

Indiana Law Journal

Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. In many of these cases the threat is that in concentrated markets—those with only a few sellers—the merger increases the likelihood of collusion or collusion-like behavior. The result will be that the post-merger firm will reduce the volume of sales in the affected market and prices will rise.

Mergers can also injure competition in markets in which the firms purchase, however. Although that principle is widely recognized, very few litigated cases …

Defining Unreasonable Radius Clauses For American Music Festivals, Trevor Lane

Seattle University Law Review

Since 1969, the music festival remains a staple of American musical culture, and in order to meet consumer demands, today’s music festival promoters rely on radius clauses ancillary to the performance agreements that they use with artists. These radius clauses limit artists’ ability to perform at other music festivals and concerts within a specified temporal and geographic radius of the contracted music festival. Beginning in 2010, legal challenges have alleged that broadly defined radius clauses used by music festival promoters violate Section 1 of the Sherman Antitrust Act. This Note contends that radius clauses which limit artists from performing beyond …

The United States, Developing Countries And The Issue Of Intra-Enterprise Agreements, Joel Davidow

Georgia Journal of International & Comparative Law

Antitrust issues have become one of the main concern of the world economy community and the United Nations. For many years, the United Nations Conference on Trade and Development has multiplied the meetings to discuss the relationship between transnational enterprises and international investment and has engaged in reflections on methods to avoid a decline in international investment. However, these meetings failed to resolve the fundamental issue of the impact of international antitrust principles on restrictive arrangements between a foreign parent corporation and its local subsidiary, particularly where that subsidiary is in a developing country. If applied, multinational enterprises would be …

Perverse Innovation, Dan L. Burk

William & Mary Law Review

An inescapable feature of regulation is the existence of loopholes: activities that formally comply with the text of regulation, but which in practice avoid the desired outcome of the regulation. Considerable ingenuity may be devoted to exploiting regulatory loopholes. Where technological regulation is at issue, such ingenuity may often be devoted to developing new technology that avoids the regulation; such innovation may be termed “perverse” because it is directed to avoiding the regulation that prompted it. Nonetheless, in this Article I argue that such regulatory circumvention may result in socially beneficial innovation. Drawing on insights from innovation policy in the …

Imports - Cumulation And Unfair Trade Competition - Cumulation Deemed Proper When A "Reasonable Overlap" Of Competition Exists. Wieland Werke A.G. V. United States, 718 F. Supp. 50 (Ct. Int'l Trade 1989), Kristine R. Berry

Georgia Journal of International & Comparative Law

No abstract provided.

E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk

Seattle University Law Review

Amazon’s main rival, Apple, went to great lengths and took major risks to enter the e-book market. Why did Apple simply choose not to compete on the merits of its product and brand equity (the iPad and iBookstore) as it does with its other products? Why did Apple decide not to continue to rely on its earlier success of situating its products differently in the market than other electronics and working hard to be different and cutting-edge with its e-book delivery? This Note argues that the combination of Amazon’s 90% market share, network externalities, and an innovative technology market creates …

Creating A Plug-In Electric Vehicle Industry Cluster In Michigan: Prospects And Policy Options, Thomas P. Lyon, Russell A. Baruffi Jr.

Michigan Telecommunications & Technology Law Review

This Article seeks to examine how policy can be used strategically to foster the development of a plug-in electric vehicle ("PEV") industry cluster in Michigan. The tendency for certain industries to localize in particular regions has captured the interest of much economic research and policy discussion in recent years. The trend toward the clustering of new industries has stayed strong despite the acceleration of globalization. Attention to clusters has proven to be an enduring theme in economic development circles for nearly thirty years. Clusters generate synergies that make industrial activity greater than the sum of contributions by individual players. In …

Standardization Of Standard-Form Contracts: Competition And Contract Implications, Mark R. Patterson

William & Mary Law Review

Standard-form contracts are a common feature of commercial relationships because they offer the advantage of lower transaction costs. This advantage of standard contracts is increased when there is a second layer of standardization under which multiple firms agree on a standard contract. Trade associations and similar entities often effect standardization of this kind through collective agreement on a standard contract, sometimes under the aegis of state actors. Multifirm contract standardization can provide not only the usual transaction-cost advantages of standard-form contracts, but also increased competition among firms, because a standard contract makes comparison among firms’ offerings easier. But standardization among …

Statutory And Judicial Approaches To Gray Market Goods: The "Material Differences" Standard, Lynda J. Oswald

Kentucky Law Journal

No abstract provided.

Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …

Regulation Of Intermodal Rate Competition In Transportation, Joseph R. Rose

Michigan Law Review

The controversy over intermodal rate competition comprehends both legal and economic issues. Clarity requires that each be explicitly stated and separately treated. The legal issues center on the meaning of section 15a(3) of the Interstate Commerce Act and the declaration of the National Transportation Policy that precedes the Act, which are the sources of the Commission's authority. The economic issues involve the effect on resource allocation of rate-making proposals devised to carry out these provisions of the Act.

Patents, Technical Data And International Defense Agreements, Harry M. Saragovitz, James A. Dobkin

Villanova Law Review

No abstract provided.

Tying Arrangements Under The Antitrust Laws: The "Integrity Of The Product" Defense, F. Bruce Kulp Jr.

Michigan Law Review

One of the most frequently asserted defenses to an action under either the Sherman Act or the Clayton Act against a tying arrangement-a contractual limitation imposed by a manufacturer whereby the purchaser of the "tying product" agrees to purchase a related "tied product" only from the manufacturer of the tying product-has been that the tying was necessary to protect the good will or the integrity of the tying product. Whether the tied product is service for the tying product, another component in a system in which the tying product is used, repair parts for the tying product, or any other …

Constitutional Law-Relation Of Federal And State Governments- Applicability Of State Minimum Price Regulations To Federal Procurement, Alexander E. Bennett

Michigan Law Review

The United States accepted the lowest bids for the supply of milk at three military installations in California. Because these bids were below the minimum prices for wholesale milk prescribed by state law, California instituted proceedings in the state courts for civil damages and injunctive relief against the successful bidders. The United States brought a separate action in a federal district court asking that the state be enjoined from applying its minimum price regulations to milk purchases by the armed services on the grounds that the military installations were federal enclaves over which the United States has exclusive jurisdiction and …

Trade Regulation-Robinson-Patman Act-Price Discrimination In The Marketing Of Gasoline, Howard R. Lurie S.Ed.

Michigan Law Review

The emergence of chain stores and mail-order houses in the 1920's posed a new threat to competition; this time at the retail level. The quantity purchase discounts which large buyers could exact placed the small independent merchant at a competitive disadvantage so substantial as to cast doubt upon his continued presence in the competitive picture. To prevent these competitive advantages, which were felt to be unfair and undesirable, Congress, in 1936, passed the Robinson-Patman Act which, in part, amended section 2 of the Clayton Act. The effect of the amendment was to tighten the application of the quantity purchase defense …

Price-Fixing Within The Barber Industry

Indiana Law Journal

No abstract provided.

Antitrust Considerations In Motor Carrier Mergers, Carl H. Fulda

Michigan Law Review

Unification of separate independent business enterprises in a single organization may raise important questions of antitrust policy. The entity which emerges may have acquired, as a result of such unification, a market position of such significance that a substantial lessening of competition or even the creation of a monopoly becomes not only possible but probable. This would be apparent whenever opportunities for buyers of the products or services of the new single unit to shop freely, and to make independent decisions as to prices, channels of purchases and selection of suppliers were to be seriously curtailed, or where such curtailment …

Price Discriminations And Their Justifications Under The Robinson-Patman Act Of 1936, John T. Haslett

Michigan Law Review

The Robinson-Patman Act was approved by the President on June 19, 1936. The purpose of the act was to amend section 2 of the Clayton Act, which prohibited price discriminations in interstate commerce. Congress, by amending section 2 of the Clayton Act, broadened the scope of the section by extending its purposes and prohibitions to price discriminations not formerly covered and by prohibiting other forms of discrimination which give favored purchasers undue cost advantages over their non-favored competitors. It also reduced the extent of requisite competitive injury.

Carriers - Motor Carrier Act Of 1935 - Issuance Of Certificates Of Convenience And Necessity, William H. Hillier

Michigan Law Review

Applicant petitioned the Interstate Commerce Commission for a certificate of public convenience and necessity to operate a transcontinental bus line, claiming that it offered a distinct type of low-cost service, that by so doing it attracted a portion of the travelling public not served by other carriers, that its through-trip features were a special convenience to its passengers, and that meals en route were included in its fare charges, which were slightly lower than those of existing carriers. The protesting carriers claimed that existing bus facilities could amply handle all of applicant's traffic, that competition in the motor bus field …

Interstate Commerce - Discrimination Between Shippers By Providing Non-Transportation Services At Less Than Cost, Thomas K. Fisher

Michigan Law Review

In order to increase the use of rail transportation, seven railroads with terminals at the Port of New York expended a total of $35,000,000 in construction of warehouse and docking facilities. Charges for leases, storage (both in and out of the transit privilege), handling and insurance were found by the Interstate Commerce Commission to be non-compensatory. The commission further found that the below-cost warehouse rates were not available to all shippers alike. Upon an appeal by the carriers from a three-judge court's dismissal of their petition to enjoin enforcement of a cease and desist order issued by the commission, it …

Interstate Commerce - Constitutionality Of State Weight And Size Limitations As Applied To Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

A South Carolina statute limited the width of motor trucks (including semi-trailers) to 90 inches and their gross weight to 20,000 pounds. The validity of this legislation was challenged before a three-judge federal court on three grounds: (1) that it was a denial of due process under the Fourteenth Amendment; (2) that the power of the states to regulate size and weight of motor vehicles used in interstate commerce had been superseded by the Federal Motor Carrier Act of 1935; (3) that the statute as applied to vehicles used by interstate motor carriers placed an unreasonable burden upon interstate commerce. …

State Regulation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

After the decision in Buck v. Kuykendall, the question naturally arose whether a State could require an interstate carrier to obtain a certificate of public convenience and necessity in order to engage in intrastate business. The question is important because it is possible that interstate business cannot be conducted profitably on a given route without the benefit of supplemental earnings derived from intrastate business. No doubt was entertained by state commissions after the Buck case that they could still exercise plenary control over the intrastate operations of interstate carriers, and deny them permission to engage in intrastate business if …

State Regulation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

According to Article 1, section 8, of the Constitution, "The Congress shall have power . . . to regulate commerce . . . among the several States . . . . " Is this provision of the Constitution applicable to interstate motor transportation over a public highway, built, owned, and maintained by a State? The provincial view might have been put forward that because the State owns the highways, therefore it should have exclusive control with respect to the commerce passing over them. Whatever force might have been conceded such a view in the early history of our country, when …

Public Utilities-Power Of Interstate Commerce Commision To Give Certificate Of Convenience And Necessity

Michigan Law Review

Certain coal fields in West Virginia are served by the Chesapeake and Ohio, the Norfolk and Western, and the Virginian railroads. The Chesapeake and the Norfolk compete for the westbound coal traffic coming over the Virginian which has no lines in the western part of these fields. The Interstate Commerce Commission authorized the Virginian to build a short connecting line which made possible much cheaper carriage over the Chesapeake, and authorized the Norfolk to construct a similar line in order to compete on equal terms. The Chesapeake sought a reversal on the ground that the Interstate Commerce Commission is not …

Note And Comment, Edwin C. Goddard, George Seletto, Edson R. Sunderland, Victor H. Lane, Burke Shartel, George E. Longstaff

Michigan Law Review

Carriers - Second Cummins Amendment - It was seven years after the Carmack Amendment of the Hepburn Act of i9o6 before the Supreme Court began that series of decisions, extending from Adams Express Co. v. Croninger, 226 U. S. 491 (1913), to George N. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278 (1915), which directly resulted in the First Cummins Amendment of March, 1915. One has only to read those cases, reviewed in 13 Micn. L. REv. 59o, and other notes referred to in 17 MICH. L. Rzv. 183, to see that the language of the Cummins …

Combination Not Competition Of Railroads, Blewett Lee

Michigan Law Review

In the course of the taking of evidence before what is generally called the Newlands Committee, appointed by Congress to investigate conditions relating to interstate and foreign commerce, it was very interesting to observe the personality of the different members of the Committee, as indicated by the questions which they asked of the various expert witnesses who were brought before them. The keen intellect of the Senior Senator from Iowa has continually played about the problem, how the revenues of the weak lines can be increased without at the same time increasing those of the strong ones. Assuming that some …