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Articles 1 - 3 of 3
Full-Text Articles in Law
Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp
Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp
All Faculty Scholarship
In its Arbaugh decision the Supreme Court insisted that a federal statute’s limitation on reach be regarded as “jurisdictional” only if the legislature was clear that this is what it had in mind. The Foreign Trade Antitrust Improvement Act (FTAIA) presents a puzzle in this regard, because Congress seems to have been quite clear about what it had in mind; it simply failed to use the correct set of buzzwords in the statute itself, and well before Arbaugh assessed this requirement.
Even if the FTAIA is to be regarded as non-jurisdictional, the constitutional extraterritorial reach of the Sherman Act is …
Mergers, Market Dominance And The Lundbeck Case, Herbert J. Hovenkamp
Mergers, Market Dominance And The Lundbeck Case, Herbert J. Hovenkamp
All Faculty Scholarship
In Lundbeck the Eighth Circuit affirmed a district court’s judgment that a merger involving the only two drugs approved for treating a serious heart condition in infants was lawful. Although the drugs treated the same condition they were not bioequivalents. The Eighth Circuit approved the district court’s conclusion that they had not been shown to be in the same relevant market.
Most mergers that are subject to challenge under the antitrust laws occur in markets that exhibit some degree of product differentiation. The Lundbeck case illustrates some of the problems that can arise when courts apply ideas derived from models …
Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp
Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp
All Faculty Scholarship
For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.
Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …