Law Commons^™

Teece's Competing Through Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

This essay reviews David J. Teece's book, Competing Through Innovation: Technological Strategies and Antitrust Policies (2013).

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

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The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …

Public Good Economics And Standard Essential Patents, Christopher S. Yoo

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Standard essential patents have emerged as a major focus in both the public policy and academic arenas. The primary concern is that once a patented technology has been incorporated into a standard, the standard can effectively insulate it from competition from substitute technologies. To guard against the appropriation of quasi-rents that are the product of the standard setting process rather than the innovation itself, standard setting organizations (SSOs) require patentholders to disclose their relevant intellectual property before the standard has been adopted and to commit to license those rights on terms that are fair, reasonable, and non-discriminatory (FRAND).

To date …

Framing A Purpose For Corporate Law, William W. Bratton

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This article seeks to frame a short statement of purpose for corporate law on which all reasonable observers can agree. The statement, in order to succeed at its intended purpose, must satisfy two strict conditions: first, it must have enough content to be meaningful; second, it must be completely uncontroversial, both descriptively and normatively. The exercise, thus described, involves avoiding the issues that occupy center stage in discussions about corporate law while at the same time highlighting the discussants’ generally held presuppositions. Three closely interconnected issues arise. First, whether the statement of the purpose of corporate law should speak in …

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

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As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) …

Competition Policy And The Technologies Of Information, Herbert J. Hovenkamp

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When we speak about information and competition policy we are usually thinking about oral or written communications that have an anticompetitive potential, and mainly in the context of collusion of exclusionary threats. These are important topics. Indeed, among the most difficult problems that competition policy has had to confront over the years is understanding communications that can be construed as either threats to exclude or as offers to collude or facilitators of collusion.

My topic here, however, is the relationship between information technologies and competition policy. Technological change can both induce and undermine the use of information to facilitate anticompetitive …

Single Point Of Entry And The Bankruptcy Alternative, David A. Skeel Jr.

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This Essay, which will appear in Across the Great Divide: New Perspectives on the Financial Crisis, a Brookings Institution and Hoover Institution book, begins with a brief overview of concerns raised by the Lehman Brothers bankruptcy about the adequacy of our existing architecture for resolving the financial distress of systemically important financial institutions. The principal takeaway of the first section is that Title II as enacted left most of these issues unanswered. By contrast, the FDIC’s new single point of entry strategy, which is introduced in the second section, can be seen as addressing nearly all of them. The …

Response To Questions In The First White Paper, 'Modernizing The Communications Act', Randolph J. May, Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speeta, Christopher S. Yoo

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The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: "What should a modern Communications Act look like?"

The Response advocates a "clean slate" approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous 'public interest' delegation of authority found throughout the Communications Act. The replacement regime …

Harm To Competition Under The 2010 Horizontal Merger Guidelines, Herbert J. Hovenkamp

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In August, 2010, the Antitrust Division and the Federal Trade Commission issued new Guidelines for assessing the competitive effects of horizontal mergers under the antitrust laws. These Guidelines were long awaited not merely because of the lengthy interval between them and previous Guidelines but also because enforcement policy had drifted far from the standards articulated in the previous Guidelines. The 2010 Guidelines are distinctive mainly for two things. One is briefer and less detailed treatment of market delineation. The other is an expanded set of theories of harm that justify preventing mergers or reversing mergers that have already occurred.

The …

Big Banks And Business Method Patents, Megan M. La Belle, Heidi Mandanis Schooner

University of Pennsylvania Journal of Business Law

No abstract provided.

The Paradoxes Of Secured Lending: Is There A Less Uneasy Case For The Priority Of Secured Claims In Bankruptcy?, Wei Zhang

University of Pennsylvania Journal of Business Law

No abstract provided.

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

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This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

When Should Bankruptcy Be An Option (For People, Places Or Things)?, David A. Skeel Jr.

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When many people think about bankruptcy, they have a simple left-to-right spectrum of possibilities in mind. The spectrum starts with personal bankruptcy, moves next to corporations and other businesses, and then to municipalities, states, and finally countries. We assume that bankruptcy makes the most sense for individuals; that it makes a great deal of sense for corporations; that it is plausible but a little more suspect for cities; that it would be quite odd for states; and that bankruptcy is unimaginable for a country.

In this Article, I argue that the left-to-right spectrum is sensible but mistaken. After defining “bankruptcy,” …

Behavioral Economics And Insurance Law: The Importance Of Equilibrium Analysis, Tom Baker, Peter Siegelman

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Because choosing insurance requires consumers to assess risks and probabilities, the demand for insurance has proven to be fertile ground for identifying deviations from rational behavior. Consumers often shun the insurance against large losses that they rationally should want (e.g., floods); and they are attracted to insurance against small losses (extended warranties, low deductibles) that no rational individual should purchase. But the welfare consequences of behavioral anomalies in insurance are complex, because consumers’ irrational behavior takes place in a market profoundly shaped by informational asymmetries. Under some conditions, deviations from rational behavior may actually generate insurance market equilibria that produce …

Title Vii Religious Discrimination And Contemporary Socio-Religious Issues In A Post-9/11 America: The Scope And Shortcomings Of Religious Discrimination Protection Under Title Vii, Prerna Soni

University of Pennsylvania Journal of Business Law

No abstract provided.

Of Gangs And Gaggles: Can A Corporation Be Part Of An Association-In-Fact Rico Enterprise? Linguistic, Historical And Rhetorical Perspectives, Randy D. Gordon

University of Pennsylvania Journal of Business Law

No abstract provided.

Wickard For The Internet? Network Neutrality After Verizon V. Fcc, Christopher S. Yoo

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The D.C. Circuit’s January 2014 decision in Verizon v. FCC represented a major milestone in the debate over network neutrality that has dominated communications policy for the past decade. This article analyzes the implications of the D.C. Circuit’s ruling, beginning with a critique of the court’s ruling that section 706 of the Telecommunications Act of 1996 gave the Federal Communications Commission (FCC) the authority to mandate some form of network neutrality. Examination of the statute’s text, application of canons of construction such as ejusdem generis and noscitur a sociis, and a perusal of the statute’s legislative history all raise questions …

Consumer Welfare In Competition And Intellectual Property Law, Herbert J. Hovenkamp

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Whether antitrust policy should pursue a goal of "general welfare" or "consumer welfare" has been debated for decades. The academic debate is much more varied than the case law, however, which has consistently adopted consumer welfare as a goal, almost never condemning a practice found to produce an actual output reduction or price increase simply because productive efficiency gains accruing to producers exceeded consumer losses.

While some practices such as mergers might produce greater gains in productive efficiency than losses in consumer welfare, identifying such situations would be extraordinarily difficult. First, these efficiencies would have to be "transaction specific," meaning …

Separation Anxiety: A Cautious Endorsement Of The Independent Board Chair, Lisa Fairfax

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This Article critically examines the competing arguments related to splitting the roles of CEO and board chair. Although the campaign for independent board chairs has received increased attention from shareholders and regulators, there has been very little academic analysis of such campaign. This Article seeks to fill this void not only by examining the campaign, but also by assessing its implications in light of the available empirical evidence and normative claims. Based on this assessment, this Article offers two conclusions. First, while there appear to be costs associated with splitting the roles of CEO and board chair, those costs likely …

Remic Tax Enforcement As Financial-Market Regulator, Bradley T. Borden, David J. Reiss

University of Pennsylvania Journal of Business Law

No abstract provided.

10b5-1 Plans: Obscuring The "Smoking Gun" And Proposals For Change, Jane Trueper

University of Pennsylvania Journal of Business Law

No abstract provided.

The Role-Modeling Bfoq: Court Confusion And Educational Promise, Benjamin O. Hoerner

University of Pennsylvania Journal of Business Law

No abstract provided.

Inequitable Conduct And Walker Process Claims After Therasense And The America Invents Act, Gideon Mark, T. Leigh Anenson

University of Pennsylvania Journal of Business Law

No abstract provided.

The Enigma Of The Single Entity, Mark Anderson

University of Pennsylvania Journal of Business Law

No abstract provided.

In Defense Of Snooping Employers, Jessica K. Fink

University of Pennsylvania Journal of Business Law

No abstract provided.

Equal Protection, Preemption, And The Need For Uniform Regulation Of Nonimmigrant Aliens' Ability To Obtain Professional Licenses, Maxwell Blum

University of Pennsylvania Journal of Business Law

No abstract provided.

Guarding The Guardians: The Case For Regulating State-Owned Entities In Global Finance, Stephen Kim Park

University of Pennsylvania Journal of Business Law

No abstract provided.

Re-Envisioning The Controlling Shareholder Regime: Why Controlling Shareholders And Minority Shareholders Often Embrace, Sang Yop Kang

University of Pennsylvania Journal of Business Law

No abstract provided.

When A Bailout Is A Taking: Can Takings Solve The Problem Of The Government As Controlling Shareholder?, Andrew J. Morris

University of Pennsylvania Journal of Business Law

No abstract provided.

The New Macroprudential Reform Paradigm: Can It Work?, Miriam F. Weismann, Jason H. Peterson, Christopher A. Buscaglia

University of Pennsylvania Journal of Business Law

No abstract provided.