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State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester
State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester
Michigan Law Review
The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …
An Administrative Meter Maid: Using Inter Partes Review And Post-Grant Review To Curb Exclusivity Parking Via The "Failure To Market" Provision Of The Hatch-Waxman Act, Brian T. Apel
Michigan Law Review
Congress created the unique Hatch-Waxman framework in 1984 to increase the availability of low-cost generic drugs while preserving patent incentives for new drug development. The Hatch-Waxman Act rewards generic drug companies that successfully challenge a pharmaceutical patent: 180 days of market exclusivity before any other generic firm can enter the market. When a generic firm obtains this reward, sometimes drug developers agree to pay generic firms to delay entering the market. These pay-for-delay agreements give rise to exclusivity parking and run counter to congressional intent by delaying full generic drug competition. The Medicare Prescription Drug, Improvement, and Modernization Act created …
Tarrification Of The Coastwise Trade Laws, Keith E. Diggs
Tarrification Of The Coastwise Trade Laws, Keith E. Diggs
Michigan Law Review
The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers between American ports. These anticompetitive laws punish American producers and consumers yet barely sustain a dwindling merchant marine. Every attempt to repeal the laws encounters insurmountable political resistance. Reformers of the coastwise trade laws, then, should instead try to convert the prohibition on foreign involvement into a tariff.
Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola
Choosing Between The Necessity And Public Interest Standards In Fcc Review Of Media Ownership Rules, Peter Dicola
Michigan Law Review
Section 202(h) of the Telecommunications Act of 1996, as amended, directs the Federal Communications Commission ("FCC") to review its media ownership rules every four years. But the statute contains an ambiguity regarding the standard of review that the FCC must apply during such proceedings. To retain a particular media ownership regulation, must the FCC merely show that the regulation advances one of the FCC's three public-interest goals for media: competition, diversity, and localism-applying a "public interest" standard? Or must the FCC meet the higher burden of demonstrating that the regulation is also indispensable for maintaining competition, diversity, or localism at …
Copyright's Communications Policy, Timothy Wu
Copyright's Communications Policy, Timothy Wu
Michigan Law Review
There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …
The Distinction Between The Scope Of Section 2(A) And Sections 2(D) And 2€ Of The Robinson-Patman Act, Michigan Law Review
The Distinction Between The Scope Of Section 2(A) And Sections 2(D) And 2€ Of The Robinson-Patman Act, Michigan Law Review
Michigan Law Review
This Note argues that sections 2(d) and 2(e) were meant to cover only disguised discriminations not within the scope of section 2(a). If the seller's conduct falls within the scope of section 2(a), that section must be applied regardless of whether or not the conduct also falls within the language of section 2(d) or 2(e). Only when section 2(a) does not apply is recourse available under sections 2(d) and 2(e). Part I of this Note looks at general antitrust policy, the limitations of the Clayton Act that led to the enactment of the Robinson-Patman Act, and the legislative history of …
Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review
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 …
Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review
Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review
Michigan Law Review
Section I of this Note analyzes the cases in which the Supreme Court has implied a doctrine of intra-enterprise conspiracy. Section II then sets forth the theoretical and practical difficulties that such a doctrine entails. Section III, in turn, considers previous proposals for limiting the scope of the intra-enterprise conspiracy doctrine and examines their deficiencies. Finally, section IV presents an alternative analysis of the intra-enterprise conspiracy issue and proposes a standard for determining when application of section 1 of the Sherman Act to parent-subsidiary relations is inappropriate.
Contracts, Conditions, And The Clayton Act: Causes Of Action Available To A Dealer Injured By An Exclusive-Dealing Arrangement, Michigan Law Review
Contracts, Conditions, And The Clayton Act: Causes Of Action Available To A Dealer Injured By An Exclusive-Dealing Arrangement, Michigan Law Review
Michigan Law Review
It is the purpose of this Comment to re-examine two of the three requirements of section 3 of the Clayton Act-with particular emphasis on the sale-or-contract-for-sale requirement-in an attempt to determine whether the formidable obstacle that judicial interpretation has made of these requirements is consistent with either the letter or spirit of the section. In discussing these requirements, this Comment will only consider the rights of parties who have at one time made purchases from a seller who utilizes exclusive-selling arrangements.
Federal Trade Commission Regulation Of Advertising, Earl W. Kintner
Federal Trade Commission Regulation Of Advertising, Earl W. Kintner
Michigan Law Review
The success of an economic democracy, no less than that of a political democracy, depends upon informed, intelligent choice. Thus, the widespread dissemination of information with respect to alternatives is imperative; otherwise, choices would be made in a vacuum and would become meaningless, if not plainly capricious. However, there is no paucity of information in our contemporary society; the so-called "mass media" ensure that. Indeed, modern man can hardly escape, even if he should so desire, the constant bombardment of information from television, radio, newspapers, billboards, and other sources.
Federal Antitrust Law-Mergers-An Updating Of The "Failing Company" Doctrine In The Amended Section 7 Setting, Philip Sotiroff S.Ed.
Federal Antitrust Law-Mergers-An Updating Of The "Failing Company" Doctrine In The Amended Section 7 Setting, Philip Sotiroff S.Ed.
Michigan Law Review
Even though application of section 7 has become increasingly effective, a specific exception to its coverage has been recognized by Congress and the Supreme Court. This exception is commonly referred to as the "failing company" doctrine. In short. the doctrine holds that an acquired or to-be-acquired firm which is in a "failing" condition, or the acquiring corporation, may interpose this condition as a defense to any prosecution under section 7 seeking to prevent or undo the acquisition of the failing company's stock or assets by the other. This discussion will attempt to explore the development of the doctrine, consider its …
Guides To Harmonizing Section 5 Of The Federal Trade Commission Act With The Sherman And Clayton Acts, S. Chesterfield Oppenheim
Guides To Harmonizing Section 5 Of The Federal Trade Commission Act With The Sherman And Clayton Acts, S. Chesterfield Oppenheim
Michigan Law Review
This topic is a constellation of antitrust highlights. Within the past five years the Federal Trade Commission has ventured into borderlands of its claim of jurisdiction under section 5 of the Federal Trade Commission Act in testing the scope of section 5 itself and its relation to the Commission's jurisdiction under the Sherman and Clayton Acts.
Antitrust - Resale Price Maintenance - Legality Of Fair Trade Contracts Made By Integrated Firm, John A. Ziegler S.Ed.
Antitrust - Resale Price Maintenance - Legality Of Fair Trade Contracts Made By Integrated Firm, John A. Ziegler S.Ed.
Michigan Law Review
Defendant-appellee manufactures its own brand-name line of drug products and is also the largest drug wholesaler in the United States. Its manufactured products are sold through appellee's own wholesale division and to independent wholesalers and retailers. In 1951 appellee entered into resale price maintenance contracts with these independent wholesalers, most of whom competed with appellee's wholesale divisions. The Government then brought an action for an injunction under section 4 of the Sherman Act, restraining the further use of resale price contracts by appellee on the ground that these contracts constituted illegal price fixing under section 1 of the act. The …
Federal Antitrust Legislation: Guideposts To A Revised National Antitrust Policy, S. Chesterfield Oppenheim
Federal Antitrust Legislation: Guideposts To A Revised National Antitrust Policy, S. Chesterfield Oppenheim
Michigan Law Review
The year 1952 finds various currents of controversy in the antitrust field converging toward the necessity for a survey and reappraisal of the body of congressional legislation generally known as the "federal antitrust laws." The foundation stone in the trio of principal antitrust statutes is the Sherman Act of 1890. Section 5 of the Federal Trade Commission Act and the Clayton Act of 1914, as amended, are the other two members of this major group of antimonopoly laws. While differing in particulars in its impact upon the American economy, each of these basic statutes is avowedly designed to maintain competition …
Price Discriminations And Their Justifications Under The Robinson-Patman Act Of 1936, John T. Haslett
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.
Federal Anti-Trust Law And The National Industrial Recovery Act, Howard E. Wahrenbrock
Federal Anti-Trust Law And The National Industrial Recovery Act, Howard E. Wahrenbrock
Michigan Law Review
The economic struggle for existence - the competitive system - which has been principally depended upon to equate the production and consumption of economic goods, is not self-sustaining. Extreme forms of that struggle - engrossing, forestalling, regrating, contracts in restraint of trade, monopoly, unfair competition, to mention some forms at the higher stages of legal development - have had to be restrained by law. Their restriction has been called for to protect the poor and economically weak from oppression by the rich and economically powerful; under a system of complete laissez faire, competition would bring about the elimination of the …
Note And Comment, Edwin C. Goddard, George Seletto, Edson R. Sunderland, Victor H. Lane, Burke Shartel, George E. Longstaff
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 …