Law Commons^™

A Response To Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods Of Competition, Maurice Stucke

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Federal Trade Commissioner Joshua Wright recently proposed a new legal standard to evaluate “unfair methods of competition” under Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45(a) (2012).

This essay raises several concerns. First, Wright’s proposed legal standard does not go as far as Congress intended. Moreover it conflates unfair methods of competition with acts and practices that significantly harm consumer welfare. A second concern is that the proposed legal standard goes the other direction and permits conduct that is otherwise illegal under the Sherman and Clayton Acts. Third, the proposed standard reduces accuracy, is hard to administer …

Reconsidering Antitrust's Goals, Maurice Stucke

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Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?

Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned …

Antitrust Review Of The At&T/T-Mobile Transaction, Maurice Stucke, Allen Grunes

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In this Essay, we review AT&T Inc.’s proposed $39 billion acquisition of T-Mobile USA, Inc., under federal merger law, under the U.S. Department of Justice and Federal Trade Commission’s 2010 Horizontal Merger Guidelines, and with a focus on possible remedies. We find, under a rule of law approach, that the proposed acquisition is presumptively anticompetitive, and the merging parties in their public disclosures have failed to overcome this presumption. Next we find that under the Merger Guidelines, there is reason to believe that the transaction may result in higher prices to consumers under several different plausible theories. Finally, we turn …

Crony Capitalism And Antitrust, Maurice Stucke

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In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T‑Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice’s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile?

This Essay examines the recent …

Toward A Better Competition Policy For The Media: The Challenge Of Developing Antitrust Policies That Support The Media Sector's Unique Role In Our Democracy, Maurice Stucke, Allen Grunes

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It is difficult to formulate meaningful competition policy when there is a fierce debate over the current competitiveness of the media industry. After addressing the importance of the marketplace of ideas in our democracy, our article examines the current state of the media industry, including the response of traditional media to audience declines, the growth of new media, the impact of media consolidation (including its impact on minority and women ownership), and the role of the Internet. In response to recent calls for liberalizing cross-ownership rules to protect traditional media, our article outlines why conventional antitrust policy is difficult to …

Concentrated Media Is Something We Can't Ignore: A Response To Speaker Pelosi, Maurice Stucke

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This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends …

Labor As Property: Guestworkers, International Trade, And The Democracy Deficit, Ruben J. Garcia

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In the 1914 Clayton Act, Congress declared: "The labor of a human being is not a commodity or an article of commerce." The practical reason for this section of the Clayton Act was to exempt collusion in labor negotiations from antitrust liability. The law also gave effect to the rejection of the commodification of human labor. Since the passage of the Clayton Act, developments in law and society have chipped away at the law's symbolic anti-commodification message. This paper examines the commodification of labor in the international trade and guestworker debates. Historically, the concept of "comparative advantage" in international trade …

Antitrust And The Marketplace Of Ideas, Maurice Stucke, Allen Grunes

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Article provides an overview of the marketplace of ideas, its relevance to media mergers, and the current approach under the federal antitrust agencies' Horizontal Merger Guidelines. The article examines the legal support for the proposition that antitrust analysis of media mergers should be expanded to include the merger's impact on editorial competition. After finding legal support in the legislative history and Supreme Court decisions, the article explores the pros and cons of evaluating a media merger's impact on the marketplace of ideas, and asks whether this should be left to the FCC. The article concludes with several modest proposals as …

Competition And-Or Efficiency: A Review Of West German Antimerger Law As A Model For The Proposed Treatment Of Efficiency Promotion Under Section 7 Of The Clayton Act, James F. Ponsoldt, Christian Westerhausen

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The purpose of this Article is to demonstrate the need for legislative change in the Clayton Act. Such change should be based upon the merger control legislation enacted in the Federal Republic of Germany ("Germany"), which explicitly recognizes an appropriate role for the efficiency effects of mergers but, at the same time, often subordinates the role of efficiency to the quite separate goal of protecting competitive markets, when those goals conflict. This Article first will briefly summarize the existing state of United States antimerger law, insofar as Section 7 of the Clayton Act and its history incorporate efficiency considerations. The …

Retaliatorily Discharged Employees’ Standing To Sue Under The Antitrust Laws, Gary M. Shaw

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No abstract provided.

Pfizer, Inc. V. India Foreign Sovereigns’ Standing To Sue For Treble Damages, Gary M. Shaw

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No abstract provided.

The Behavior Of Justice Douglas In Federal Tax Cases, Marjorie A. Silver, Bernard Wolfman, Jonathan L. F. Silver

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No abstract provided.