Law Commons^™

Feature Comment: Don’T Let Post-Employment Conflicts Derail Your Contract Award, Jessica Tillipman, Bryan Dewan

GW Law Faculty Publications & Other Works

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.

In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, …

Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind …

Brand Name Or Equal: Without "Equal," It's Not Competitive, Steven L. Schooner

GW Law Faculty Publications & Other Works

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some …

Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar

GW Law Faculty Publications & Other Works

Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …

Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper

GW Law Faculty Publications & Other Works

Behavioral economics (BE) examines the implications for decision-making when actors suffer from biases documented in the psychological literature. This article considers how such biases affect regulatory decisions. The article posits a simple model of a regulator who serves as an agent to a political overseer. The regulator chooses a policy that accounts for the rewards she receives from the political overseer — whose optimal policy is assumed to maximize short-run outputs that garner political support, rather than long-term welfare outcomes — and the weight the regulator puts on the optimal long run policy. Flawed heuristics and myopia are likely to …

Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman

GW Law Faculty Publications & Other Works

The challenges and questions surrounding the design of a competition system are part of an identifiable life cycle that characterizes the development of a competition agency. The core challenges are to set priorities and execute them, but there are various potential obstacles. This article looks at the FTC’s experiences in its first decade, a period bringing extraordinary technological dynamism that reshaped the U.S. economy and transitions in political leadership, to shed light on how a new or reformed agency might go about facing predictable problems in its first years and to suggest how these agencies can improve their effectiveness.

New …

Removing Property From Intellectual Property And (Intended?) Pernicious Impacts On Innovation And Competition, F. Scott Kieff

GW Law Faculty Publications & Other Works

Commentators have poured forth a loud and sustained outcry over the past few years that sees property rule treatment of intellectual property (IP) as a cause of excessive transaction costs, thickets, anticommons, hold-ups, hold-outs, and trolls, which unduly tax and retard innovation, competition, and economic growth. The popular response has been to seek a legislative shift towards some limited use of weaker, liability rule treatment, usually portrayed as “just enough” to facilitate transactions in those special cases where the bargaining problems are at their worst and where escape hatches are most needed. This essay is designed to make two contributions. …

The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber

GW Law Faculty Publications & Other Works

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …

The Last Days Of The American Lawyer, Thomas D. Morgan

GW Law Faculty Publications & Other Works

An historic transformation is underway in the legal profession. It began about 40 years ago, but it has accelerated and became painfully evident by 2009. These are the “last days” of the American lawyer we once new. This paper, based on the new book, The Vanishing American Lawyer (Oxford 2010) by the same author, documents the progress and direction of the transformation.

Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark

GW Law Faculty Publications & Other Works

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and …

How Lawyers Compete, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Lester Brickman's article establishes that the market for contingent fee lawyers is unusual, perhaps even bizarre. By removing legal impediments to the solicitation of clients, by unleashing the capital markets to finance legal claims, and by allowing intermediaries to match client and counsel, we could produce competition. Brickman has convinced me that there is little competition in contingency fee markets, and that such markets could be much more competitive. But I am not sure there is as little competition as he thinks, or that the changes in legal regimes he proposes would be sufficient to make the markets more competitive.

Speeding Up The Crawl To The Top, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

The literature on competition in corporate law has debated whether competition is a "race to the bottom" or a "race to the top.” This Article endorses the increasing scholarly consensus that competition improves corporate law but argues that the pace of innovation in corporate law is likely to be slow. Because benefits of corporate law innovation are not internalized, neither states nor firms will have sufficient incentives to innovate. That competitive federalism is “to the top" suggests that the model could be applied beyond the corporate charter context, for example to areas such as bankruptcy, but that benefits from such …

Model Behaviour? Anecdotal Evidence Of Tension Between Evolving Commercial Public Procurement Practices And Trade Policy, Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The international trade community increasingly focuses upon the purchasing practices of nation states. Developing nations and states seeking to improve their procurement systems expect to glean lessons from the evolution of procurement law regimes in developed nations, including the United States. To the extent that the U.S. procurement regime is perceived (at least by some) as a model, the global community has been intrigued by the United States government's efforts to adopt more commercial practices and buy more commercial items. Yet numerous impediments to a purely commercial public procurement model remain, because commercial practices are invariably less transparent, and raise …

Against Principled Antitrust, Edward T. Swaine

GW Law Faculty Publications & Other Works

Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO …