Law Commons^™

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Michigan Law Review

Over the last thirty years, regulators have deregulated just about every regulated industry. In no industry has deregulation raised as much fear and concern as in electric power markets. Even before the Enron debacle, a crisis that is more about the failures of corporate than regulatory law, it was clear that something had gone seriously wrong in the turn towards deregulation of electric power. Recent events in California are illustrative. In early 2000, consumers in California, the first state to deregulate retail power markets on a mass scale, saw repeated months of power interruptions. Many utility customers experienced a risk …

The Price Of Law: How The Market For Lawyers Distorts The Justice System, Gillian K. Hadfield

Michigan Law Review

Bill Clinton's legal bills in connection with the Lewinsky scandal topped $10 million; the bill for Ken Starr's investigation of the President exceeded $50 million. The cost to the eight families portrayed in the bestseller A Civil Action for their tort suit against a manufacturing company accused of dumping hazardous chemicals into the water supply was $4.8 million (paid from a settlement of about $8 million); the cost for the defense exceeded $7 million. Lawyers who represented the three states in the nationwide suit by state attorneys general against tobacco companies to recoup smoking-related health care costs were awarded $8.2 …

Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, Ian Ayres, Paul Klemperer

Michigan Law Review

Uncertainty and delay in patent litigation may have unforeseen virtues. The combination of these oft-criticized characteristics might induce a limited amount of infringement that enhances social welfare without reducing (or without substantially reducing) the profitability of the patentee. Patent infringement is generally viewed as socially inefficient because infringement reduces the patentee's ex ante incentive to innovate. Limited amounts of infringement combined with increased patent duration, however, can substantially reduce the distortionary ex post effects of supracompetitive pricing without reducing the patentee's ex ante incentives to innovate. Indeed, this Article derives a legal regime that preserves the incentive to innovate by …

Optimal Antitrust Penalties And Competitors' Injury, William H. Page

Michigan Law Review

Herbert Hovenkamp's primary target in Antitrust's Protected Classes is the Chicago School's optimal deterrence model of antitrust penalties. Substantive antitrust rules are often overinclusive prohibiting practices even when they are efficient - in order to avoid the costs of error associated with a more case-specific rule. The optimal deterrence model attempts to correct for this overinclusiveness by setting the penalty for antitrust violations at a level just sufficient to deter only inefficient instances of the violation. The task is complicated by, among other things, the myriad effects antitrust offenses can have on economic actors: allocative inefficiencies and efficiencies (the losses …

Antitrust's Protected Classes, Herbert Hovenkamp

Michigan Law Review

For purposes of argument, this essay assumes that efficiency ought to be the exclusive goal of antitrust enforcement. That premise is controversial. Nonetheless, several economic and legal theorists, primarily among the Chicago School of economics and antitrust scholarship, have developed an Optimal Deterrence Model based on this assumption. The Model is designed to achieve the optimum, or ideal, amount of antitrust enforcement. The Model's originators generally believe that there is too much antitrust enforcement, particularly enforcement initiated by private plaintiffs. I intend to show that, even if efficiency is the only antitrust policy goal, a broader array of lawsuits should …

Antitrust-Patents-Licenses-Regulation Of Patent License Royalty Rates Under The Antitrust Laws, Michigan Law Review

Michigan Law Review

Neither the Constitution nor federal legislation defines a patentee's licensing rights; consequently, it has devolved upon the courts to control patent marketing practices. A patentee is entitled to a limited monopoly on his invention, and proper use of this grant is not a violation of any law regulating trade practices. Yet licensing affords an opportunity to enlarge the scope of this monopoly, and courts using various rationales have declared illegal different forms of patent licensing arrangements found to be outside the protective coverage of the patent grant. Until recently, however, the courts have not dealt with the problem of whether …

Hawley: The New Deal And The Monopoly Problem, Arthur D. Austin

Michigan Law Review

A Review of The New Deal and the Monopoly Problem By E. W. Hawley

Government And The Consumer, Richard J. Barber

Michigan Law Review

This article takes up four major topics. First, the principal characteristics of governmental action with respect to consumer protection are reviewed, with emphasis on developments during the past thirty years. Second, the traditional pleas for consumer protection are examined with a view toward determining the inadequacies in governmental action. Third, the problems of the consumer are studied in the context of oligopolistic industrial markets in which nonprice competition accentuates the place of advertising and severely restricts the dissemination of factual information that is essential to enlightened purchase decisions. Fourth, the ingredients of a meaningful consumer protection program are outlined and …

Boycotts And Restrictive Marketing Arrangements, Richard M. Buxbaum

Michigan Law Review

It is currently a common if still relatively unheralded practice for a "fired" dealer to bring an antitrust action against his former manufacturer-supplier (and perhaps other dealers), alleging that his termination was the result of a boycott. Boycotts-collective efforts to obtain the exclusion of a party from a market-are illegal per se under section 1 of the Sherman Act. Thus, questions concerning the justification for the boycott or the significance of the offender's market position do not arise.

Oppenheim: Unfair Trade Practices, Cases And Comments, Glen E. Weston

Michigan Law Review

A Review of Unfair Trade Practices, Cases and Comments by S. Chesterfield Oppenheim

Phillips: Perspectives On Antitrust Policy, Edwin W. Tucker

Michigan Law Review

A Review of Perspectives on Antitrust Policy edited by Almarin Phillips

Know-How Licensing And The Antitrust Laws, David R. Macdonald

Michigan Law Review

The purpose of this article is to re-analyze the present antitrust status of know-how licensing for the purpose of clarifying the extent of the protection which the exploiter of know-how may accord himself without abusing the public interest in unfettered competition.

Patents--Prior Publication-Application Of Section 102(B) To Plant Patents, Ira J. Jaffe S.Ed.

Michigan Law Review

Appellant applied for a plant patent on two roses which he had developed. The Patent Office Board of Appeals affirmed the final rejection of the application on the basis of section 102(b) of the patent statute. Pictures and classifications of the varieties of roses sought to be patented had appeared in printed publications more than one year before appellant's application. On appeal, held, reversed. In order to bar issuance of a plant patent, a description in a printed publication must convey such knowledge as to place the invention within the public domain. In re LeGrice, 301 F.2d 929 …

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 …

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 …

British Antitrust In Action, Michael Conant

Michigan Law Review

The Restrictive Trade Practices Act of 1956 was the first positive anti-monopoly statute in the United Kingdom since the Statute of Monopolies in 1623. Now that the statute has been in effect four years there are sufficient decisions and consent orders to make possible a report on its operation. Since most American readers are unfamiliar with the legal and economic background of the Restrictive Trade Practices Act, the prior common law in this area and the 1948 monopolies investigation statute will be summarized first. This summary is followed by an analysis of the structure of the 1956 Act, of the …

Protecting The Public Interest In Labor Disputes, Frank E. Cooper

Michigan Law Review

There exists general agreement that an effective means must be found, in the public interest, to curb strikes in basic industries that imperil the national health or safety. This principle, indeed, has been a part of our basic law for more than a decade. The trouble has been that the limited means provided to meet this need fail to give effective expression to the public interest. The only significant remedy is that which the steel strike has made so well known: an 80-day injunction followed by an election in which the employees may indicate for publicity purposes whether they wish …

Regulation Of Business - Antitrust Laws - Exemption Of Agricultural Cooperative, Dean L. Berry S.Ed.

Michigan Law Review

Defendant agricultural cooperative, organized under the authority of section 6 of the Clayton Act and section I of the Capper- Volstead Act, engaged in alleged predatory practices claimed by the government to constitute an attempt to monopolize and lessen competition within the ban of the Sherman and Clayton Acts. In a civil action by the government setting forth three separate claims for relief from such activities, held, the first cause of action, alleging monopoly, dismissed on the merits. In the absence of a combination or conspiracy with persons who are not within the purview of the Clayton and Capper-Volstead …

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 …

Regulation Of Business - Refusals To Deal - Use To Effectuate Resale Price Maintenance, Raymond J. Dittrich, Jr. S.Ed.

Michigan Law Review

This comment will examine the legal questions arising from a manufacturer's exercise of his right to maintain resale prices by refusing to deal with price cutters in an attempt to determine whether this exists only as an abstract right, or whether it can be translated into legally effective business practices.

Regulation Of Business - Sherman Act - Effect Of Trade-Mark On Scope Of Relevant Market, Robert H. Kapp S. Ed.

Michigan Law Review

Defendants are American corporations marketing trade-marked toilet goods obtained from their French affiliates. In each case the French company transferred to the American company trademark rights covering imported products. Pursuant to section 526 of the Tariff Act of 1930 defendants filed with the Bureau of Customs certificates of registration of these trade-marks for the purpose of preventing the competitive importation of products bearing the same trade-marks. In an action by the government charging that utilization of section 526 by each defendant constitutes an attempt to monopolize and a monopolization of the importation and sale of these trade-marked commodities in violation …

Edwards: Big Business And The Policy Of Competition, Carl H. Fulda

Michigan Law Review

A Review of Big Business and the Policy of Competition By Corwin D. Edwards.

Regulation Of Business - Boxing And Theater Now Within Scope Of The Sherman Act, Norman A. Zilber S.Ed.

Michigan Law Review

The United States instituted two civil antitrust actions under section 4 of the Sherman Act claiming that defendants were acting in restraint of trade in their respective fields. Defendant Shubert was engaged in the multistate business of producing, booking, and presenting legitimate theatrical attractions. Defendant International Boxing Club was engaged in the business of promoting professional boxing contests, also on a multistate basis, with an alleged 25 percent of its revenue being derived from the interstate sale of radio, television, and motion picture rights. The district court dismissed both complaints on the authority of Federal Baseball Club v. National League …

The Patent-Antitrust Problem, Bartholomew Diggins

Michigan Law Review

The Patent-Antitrust section of the Report of the Attorney General's National Committee to Study the Antitrust Laws is an excellent analysis of the existing law and is an invaluable handbook for practitioners in this difficult field. The writer's approach to the problem is different from that of the committee and before commenting specifically on the Report it is only fair to state the writer's views of the problem lest differences in viewpoint give the impression of criticism of the Report.

In any approach to the patent-antitrust problem there is a basic question: does a "patent-antitrust problem" exist? The Report …

Basic Antitrust Concepts, Kenneth S. Carlston

Michigan Law Review

It is the function of this paper to summarize and evaluate chapter I of the Report of the Attorney General's National Committee to Study the Antitrust Laws. It will first be necessary to note briefly the circumstances attendant upon the appointment of the committee, its delegated function, its conception of its task and its working methods. No helpful critique of its accomplishments can be made unless its purpose and mode of operation are taken as the starting point. While many tasks remain to be done in the study of the antitrust laws, the committee's work should be appraised only …

Product Competition In The Relevant Market Under The Sherman Act, David Macdonald

Michigan Law Review

The correct delimitation of the relevant market is the problem to be examined here. First the legal development of market concepts will be traced. Then, with the objective of coalescing the legal and economic concepts of .the market, a test will be proposed with which to measure the correct market in any given case.

Constitutional Law-Commerce Clause-Freedom Of Press-Amenability Of Newspaper To Sherman Anti-Trust Act, William K. Davenport

Michigan Law Review

Until a competing radio station appeared on the scene in 1948, defendant newspaper was the only medium for mass advertising available in the Lorain, Ohio area. In an effort to regain its monopoly position and eliminate the radio station as a competitor, defendant inaugurated a policy of refusing to accept custom from advertisers who employed the services of its rival. Both the newspaper and the radio station received news dispatches, advertising copy, payments, and other materials from sources outside Ohio, but neither had any appreciable audience beyond the borders of the state. In a civil action brought by the United …

Contributory Infringement And The Combination Patent, Samuel Ewer Eastman

Michigan Law Review

The right of action for contributory infringement of a patent was forged by judicial legislation, and, as limited and subjected to opposing rules of law, has been tempered by that same process. The history is exemplary of the control over society exercisable by the courts according to their own individual economic outlook.

In tracing this history, buying agreements, price-fixing, agreements not to deal in the goods of a competitor, conspiracies to restrain trade through licensing, and other business arrangements subject to scrutiny under the anti-trust laws will be dealt with only incidentally. It is not possible to deal only with …

Labor Unions-Closed Shop And Arbitrarily Closed Or Partially Closed Union-Injunction, John S. Dobson

Michigan Law Review

The defendants appealed from an order of the lower court awarding a preliminary injunction which restrained the defendants from discharging or causing the discharge of the plaintiff and other Negro employees because they were not members of a labor union with which their employer has a closed shop agreement, but which will not grant Negroes full membership privileges. The defendants were: the plaintiff's employer; the International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America which is a labor union; and certain officials of the aforementioned union. There was a written contract between the employer and the International Brotherhood containing …

Patents - Estoppel Of Licensee To Deny Validity - Restrictions On Licensee's Sale Prices

Michigan Law Review

Plaintiff sued to recover royalties alleged to be due under a contract licensing defendant to manufacture articles covered by a patent owned by the plaintiff. The agreement provided that defendant licensee should not sell embodiments of the invention manufactured under the license at prices or under conditions more favorable to its customers than those prescribed by the licensor for its own customers. The defendant set up the defense that plaintiff "by reason of the price control provisions of the licensing contract and the invalidity of [the patent]" was not entitled to recover the royalties. The district court and the circuit …