Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Antitrust and Trade Regulation (30)
- Administrative Law (15)
- Legislation (13)
- Supreme Court of the United States (7)
- Commercial Law (6)
-
- Intellectual Property Law (6)
- Marketing Law (6)
- Consumer Protection Law (5)
- Food and Drug Law (5)
- Business Organizations Law (4)
- Communications Law (4)
- Courts (4)
- Internet Law (3)
- Privacy Law (3)
- Science and Technology Law (3)
- Banking and Finance Law (2)
- Computer Law (2)
- Constitutional Law (2)
- Jurisprudence (2)
- Law and Economics (2)
- Legal History (2)
- Legal Remedies (2)
- Legal Writing and Research (2)
- Public Law and Legal Theory (2)
- Securities Law (2)
- Tax Law (2)
- Bankruptcy Law (1)
- Comparative and Foreign Law (1)
- Contracts (1)
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 52
Full-Text Articles in Law
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane
Articles
State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …
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 …
Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers
Protecting Personal Information: Achieving A Balance Between User Privacy And Behavioral Targeting, Patrick Myers
University of Michigan Journal of Law Reform
Websites and mobile applications provide immeasurable benefits to both users and companies. These services often collect vast amounts of personal information from the individuals that use them, including sensitive details such as Social Security numbers, credit card information, and physical location. Personal data collection and dissemination leave users vulnerable to various threats that arise from the invasion of their privacy, particularly because users are often ignorant of the existence or extent of these practices. Current privacy law does not provide users with adequate protection from the risks attendant to the collection and dissemination of their personal information. This Note advocates …
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl T. Bogus
University of Michigan Journal of Law Reform
This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School’s view that antitrust law should be …
The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah Brennan
The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah Brennan
Michigan Telecommunications & Technology Law Review
The United States spends nearly $1,000 per person annually on drugs—forty percent more than the next highest spender, Canada, and more than twice the amount France and Germany spend. Although myriad factors contribute to high drug spending in the United States, intellectual property law plays a crucial and well-documented role in inhibiting access to cheaper, generic medications. Yet, for the most part, the discussion of the relationship between intellectual property law and drug spending has centered on patent protection. Recently, however, a few researchers have turned their attention to a different avenue of exclusivity—trademark law. New studies suggest that pharmaceutical …
After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane
After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane
Articles
The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …
Section 5 And The Innovation Curve, Daniel A. Crane
Section 5 And The Innovation Curve, Daniel A. Crane
Book Chapters
the ftc’s authority to use Section 5 of the FTC Act to reach anticompetitive conduct that would not be illegal under the Sherman or Clayton Acts has been much discussed in recent years, particularly in conjunction with the FTC’s enforcement action against Intel. As of this writing, a Section 5 action against Google seems imminent.
Bargaining Over Loyalty, Daniel A. Crane
Bargaining Over Loyalty, Daniel A. Crane
Articles
Contracts between suppliers and customers frequently contain provisions rewarding the customer for exhibiting loyalty to the seller. For example, suppliers may offer customers preferential pricing for buying a specified percentage of their requirements from the supplier or buying minimum numbers of products across multiple product lines. Such loyalty-inducing contracts have come under attack on antitrust grounds because of their potential to foreclose competitors or soften competition by enabling tacit collusion among suppliers. This Article defends loyalty inducement as a commercial practice. Although it can be anticompetitive under some circumstances, rewarding loyal customers is usually procompetitive and price reducing. The two …
The Institutions Of Antitrust Law: How Structure Shapes Substance, William E. Kovacic
The Institutions Of Antitrust Law: How Structure Shapes Substance, William E. Kovacic
Michigan Law Review
Daniel Crane's The Institutional Structure of Antitrust Enforcement ("Institutional Structure") may do for antitrust law what Essence of Decision did for public administration. Unlike most literature on antitrust law, this superb volume does not address pressing issues of substantive analysis (e.g., when can dominant firms offer loyalty discounts?). Instead, Institutional Structure studies the design and operation of the institutions of U.S. antitrust enforcement. Professor Crane skillfully advances a basic and powerful proposition: to master analytical principles without deep knowledge of the policy implementation mechanism is dangerously incomplete preparation for understanding the U.S. antitrust system, or any body of competition law. …
Antitrust Rulemaking As A Solution To Abuse On The Standard-Setting Process, Adam Speegle
Antitrust Rulemaking As A Solution To Abuse On The Standard-Setting Process, Adam Speegle
Michigan Law Review
While many recognize the critical role that technology plays in modern life, few appreciate the role that standards play in contributing to its success. Devices as prevalent as the modern laptop computer for example, may be governed by over 500 interoperability standards, regulating everything from the USB drive to the memory chip. To facilitate adoption of such standards, firms are increasingly turning to standard-setting organizations. These organizations consist of members of an industry who agree to abide by the organization's bylaws, which typically regard topics such as patent disclosure and reasonable licensing. Problems arise, however, when members violate these bylaws …
Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans
Privacy Policies, Terms Of Service, And Ftc Enforcement: Broadening Unfairness Regulation For A New Era, G. S. Hans
Michigan Telecommunications & Technology Law Review
This Note examines website privacy policies in the context of FTC regulation. The relevant portion of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a), uses the following language to define the scope of the agency's regulatory authority: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Specifically, this Note analyzes the FTC's power to regulate unfair practices (referred to as the FTC's "unfairness power") granted by Section 5, and also discusses the deception prong of Section 5, which allows the agency to …
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin
Michigan Telecommunications & Technology Law Review
2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …
A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane
A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane
Articles
It has long been fashionable to categorize antitrust by its "schools." From the Sherman Act's passage to World War II, there were (at least) neo-classical marginalism, populism, progressivism, associationalism, business commonwealthism, and Brandeisianism. From World War II to the present, we have seen (at least, and without counting the European Ordo-Liberals) PaleoHarvard structuralism, the Chicago School, Neo-Harvard institutionalism, and Post -Chicagoans. So why not Neo-Chicago? I am already on record as suggesting the possible emergence of such a school, so it is too late for me to dismiss the entire "schools" conversation as window-dressing. This Symposium is dedicated to defining …
A Path Toward User Control Of Online Profiling, Tracy A. Steindel
A Path Toward User Control Of Online Profiling, Tracy A. Steindel
Michigan Telecommunications & Technology Law Review
Online profiling is "the practice of tracking information about consumers' interests by monitoring their movements online." A primary purpose of online profiling is to "deliver advertising tailored to the individual's interests," a practice known as online behavioral advertising (OBA). In order to accomplish this, publishers and advertisers track a individual's online behavior using cookies and other means. Publishers and advertisers aggregate the information, often compile it with information from offline sources, and sort individuals into groups based on characteristics such as age, income, and hobbies. Advertisers can then purchase access to these consumer groups, controlling their selections with such specificity …
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook
Michigan Telecommunications & Technology Law Review
Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Articles
The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Articles
The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …
Linkline's Institutional Suspicions, Daniel A. Crane
Linkline's Institutional Suspicions, Daniel A. Crane
Articles
Antitrust scholars are having fun again. Not so long ago, they were the poor, redheaded stepchildren of the legal academy, either pining for the older days of rigorous antitrust enforcement or trying to kill off what was left of the enterprise. Other law professors felt sorry for them, ignored them, or both. But now antitrust is making a comeback of sorts. In one heady week in May of 2009, a front-page story in the New York Times reported the dramatic decision of Christine Varney-the Obama Administration's new Antitrust Division head at the Department of Justice-to jettison the entire report on …
Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh
Michigan Law Review
Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …
Antitrust Modesty, Daniel A. Crane
Antitrust Modesty, Daniel A. Crane
Michigan Law Review
Given Hovenkamp's influence and intellect, the publication of The Antitrust Enterprise is a major event, particularly since he sets out, according to the book's jacket, to provide "the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago." Nevertheless, one could quibble with the jacket's claim. Richard Posner substantially updated his own authoritative and compact exposition of antitrust law in 2001. In a 2003 book review, Hovenkamp called Posner's second edition a "marvelous and important book." So, before beginning a review of Hovenkamp's new work, it seems necessary …
Antitrust Enfocement And High-Technology Markets, William J. Baer, David A. Balto
Antitrust Enfocement And High-Technology Markets, William J. Baer, David A. Balto
Michigan Telecommunications & Technology Law Review
Although the antitrust laws apply to all industries, the application must be tempered in each case by the myriad ways in which competition can be modified by structural, behavioral, technological, regulatory, and other characteristics. The Commission applies the antitrust laws with sensitivity to the special characteristics of high-tech industries and of intellectual property, but also with the recognition that--as in other industries--competition plays an important role in spurring innovation and in spreading the benefits of that innovation to consumers. This focus is not new. This balanced approach has roots that go back at least to the 1977 Antitrust Guide to …
A Critique Of The Proposed National Tobacco Resolution And A Suggested Alternative, Jon D. Hanson, Kyle D. Logue
A Critique Of The Proposed National Tobacco Resolution And A Suggested Alternative, Jon D. Hanson, Kyle D. Logue
Articles
The first criticism is that the proposed resolution would not require manufacturers and, in tum, consumers to pay anything approaching the true total costs of cigarettes, costs that we estimate to be at least $7 per pack, a number that is considerably higher than other estimates that have been reported in the media. Our estimate includes some, but not all, of the costs borne ultimately by smokers themselves, by smokers' insurers, and by individuals injured by second-hand smoke. It includes only future costs and excludes many of those. So, for example, the figure includes neither the health-care costs that have …
Smokers' Compensation: Toward A Blueprint For Federal Regulation Of Cigarette Manufacturers, Jon D. Hanson, Kyle D. Logue, Michael S. Zamore
Smokers' Compensation: Toward A Blueprint For Federal Regulation Of Cigarette Manufacturers, Jon D. Hanson, Kyle D. Logue, Michael S. Zamore
Articles
Although nothing is certain in Washington, sweeping federal legislation in the cigarette area is more likely now than has ever been the case. Congress is currently considering several proposals for comprehensive federal regulation of the cigarette market, a market that has until now gone largely untouched by government intervention. Among those proposals, the one that has received the most attention, and the one that in fact motivated policy makers to look anew at the problems posed by cigarettes, is the proposed national tobacco resolution (the "Proposed Resolution"). The Proposed Resolution, which has been advanced by a coalition of state attorneys …
Absolute Priority And New Value, James J. White
Absolute Priority And New Value, James J. White
Articles
This paper is based on a lecture given on December 6, 1990 ast the Second Annual Robert E. Krinock Lecture. The absolute priority rule is a specific application of the broader doctrine that reorganization plans must be "fair and equitable." Both have their origins in the railroad reorganization cases of the early 20th century. The general doctrine is now codified in section 1129(b)(2) of the Bankruptcy Code and the rule is codified in subsection 1129(b)(2)(B)(ii) which provides that the debtor must pay a nonconsenting class of unsecured creditors in full or "the holder of any claim or interest that is …
Fairness And Unfairness In Television Product Advertising, Michigan Law Review
Fairness And Unfairness In Television Product Advertising, Michigan Law Review
Michigan Law Review
The first section of this Note explores the impact of television product advertising on viewer attitudes. The next two sections set forth the statutory basis on which the Federal Communications Commission and the Federal Trade Commission could provide for the effective presentation of contrasting points of view on controversial issues implicitly or explicitly raised by television product advertising, could ensure that the implicit messages of such advertisements are delivered fairly and without deception, and could counter the adverse effects of such advertising. The purpose of these sections is not to predict actual regulatory behavior, for in fact the FCC and …
The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review
The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review
Michigan Law Review
Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …
Abuse Of Trademarks: A Proposal For Ompulsory Licensing, Mara L. Babin
Abuse Of Trademarks: A Proposal For Ompulsory Licensing, Mara L. Babin
University of Michigan Journal of Law Reform
This article neither deals with the propriety of the Federal Trade Commission's (FTC) proposed order nor evaluates the effectiveness of compulsory trademark licensing as a remedy for unfair trade practices.8 Rather, the pending cereal industry case is used as a point of departure for an examination of the problem of trademark abuse and the responses of the courts, the Congress, and the FTC to it. Acknowledging the legality of compulsory licensing of trademarks, the article suggests legislation which will incorporate licensing and standards for its application. Such legislation would make licensing an accessible remedy for trademark abuse while accommodating both …
Corrective Advertising And The Ftc: No, Virginia, Wonder Bread Doesn't Help Build Strong Bodies Twelve Ways, Michigan Law Review
Corrective Advertising And The Ftc: No, Virginia, Wonder Bread Doesn't Help Build Strong Bodies Twelve Ways, Michigan Law Review
Michigan Law Review
This Note will outline the development and theory of corrective advertising. In particular, it will discuss the residual effects of deceptive advertising, which are the basis for a corrective remedy. The Commission's statutory authority to require corrective advertising will then be explored: the analysis will compare corrective advertising with other types of affirmative disclosure required by the Commission and relate it to the present use of divestiture as a trade regulation remedy. Finally, the possible public benefit accruing from corrective advertising will be considered, along with some thoughts on what policies the FTC should pursue in order to maximize that …
Souped Up Affirmative Disclosure Orders Of The Federal Trade Commission, William F. Lemke Jr.
Souped Up Affirmative Disclosure Orders Of The Federal Trade Commission, William F. Lemke Jr.
University of Michigan Journal of Law Reform
Under section 5(b) of the Federal Trade Commission Act the Commission is given authority to conduct hearings, make findings and issue cease and desist orders requiring any person, partnership or corporation to cease and desist from use of unfair methods of competition or unfair or deceptive practices in commerce. The Commission also issues consent orders in cases which are concluded by agreement between the Commission and the allegedly offending party. Consent orders have the same force and binding effect as those issued after hearings and findings. Although it is well established that the Commission has very broad discretion and authority …
Cox, Fellmeth, Schulz: The Consumer And The Federal Trade Commission, Ernest Gellhorn
Cox, Fellmeth, Schulz: The Consumer And The Federal Trade Commission, Ernest Gellhorn
Michigan Law Review
A Review of The Consumer and the Federal Trade Commission by Edward Cox, Robert Fellmeth, and John Schulz