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Full-Text Articles in Law
Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth
Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth
Vanderbilt Law School Faculty Publications
American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in …
Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried
Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried
Vanderbilt Law School Faculty Publications
American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector- is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets …
Taking Antitrust Away From The Courts, Ganesh Sitaraman
Taking Antitrust Away From The Courts, Ganesh Sitaraman
Vanderbilt Law School Faculty Publications
A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …
The Commensurability Myth In Antitrust, Rebecca Haw Allensworth
The Commensurability Myth In Antitrust, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
Modern antitrust law pursues a seemingly unitary goal: competition. In fact, competition—whether defined as a process or as a set of outcomes associated with competitive markets—is multifaceted. What are offered in antitrust cases as procompetitive and anticompetitive effects are typically qualitatively different, and trading them off is as much an exercise in judgment as mathematics. But despite the inevitability of value judgments in antitrust cases, courts have perpetuated a commensurability myth, claiming to evaluate “net” competitive effect as if the pros and cons of a restraint of trade are in the same unit of measure. The myth is attractive to …
Antitrust Scrutiny For The Occupations: "North Carolina Dental" And Its Impact On U.S. Licensing Boards, Rebecca Haw Allensworth
Antitrust Scrutiny For The Occupations: "North Carolina Dental" And Its Impact On U.S. Licensing Boards, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
The American system of occupational licensing is under attack. The current regime – which allows for almost total self-regulation – has weathered sustained criticism from consumer advocate groups, academics, politicians, and even the White House itself. But the recent U.S. Supreme Court opinion in North Carolina Board of Dental Examiners v. FTC,1 portends a sea change in how almost a third of American workers are regulated. The case has made it possible for aggrieved individuals and government enforcers to bring suits against most state licensing boards, challenging their restrictions as violating federal competition law. The case has prompted two responses: …
Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth
Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or …
The Landscape Of Collective Management Schemes, Daniel J. Gervais
The Landscape Of Collective Management Schemes, Daniel J. Gervais
Vanderbilt Law School Faculty Publications
Collective management comes in many shapes and sizes. There is, however, an interesting definition proposed by WIPO: [T]he term “collective management” only refers to those forms of joint exercise of rights where there are truly “collectivized” aspects (such as tariffs, licensing conditions and distribution rules); where there is an organized community behind it; where the management is carried out on behalf of such a community; and where the organization serves collective objectives beyond merely carrying out the tasks of rights management . . . . In contrast, “rights clearance organizations” are those which perform joint exercise of rights without any …
Amicus Briefs And The Sherman Act: Why Antitrust Needs A New Deal, Rebecca Haw Allensworth
Amicus Briefs And The Sherman Act: Why Antitrust Needs A New Deal, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
Power to interpret the Sherman Act, and thus power to make broad changes to antitrust policy, is currently vested in the Supreme Court. But reevaluation of existing competition rules requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which it lacks. To compensate for these deficiencies, the Court has turned to amicus briefs to supply the economic information and reasoning behind its recent changes to antitrust policy. This Article argues that such reliance on amicus briefs makes Supreme Court antitrust adjudication analogous to administrative notice-and-comment rulemaking. When the Court pays careful attention to economic …
The Trojan Horse Of Electric Power Transmission Line Siting Authority, Jim Rossi
The Trojan Horse Of Electric Power Transmission Line Siting Authority, Jim Rossi
Vanderbilt Law School Faculty Publications
Reform proposals pending in the U.S. Congress would increase federal and regional power to preempt states in siting transmission lines on order to allow the development of a high-votage transmission grid for renewable resources. This Article recognizes the inadequacy of existing state siting authority over transmission, but takes a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argues that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because it ignores the more difficult issues of how the costs and benefits of transmission …
Why The Filed Rate Doctrine Should Not Imply Blanket Judicial Deference To Regulatory Agencies, Jim Rossi
Why The Filed Rate Doctrine Should Not Imply Blanket Judicial Deference To Regulatory Agencies, Jim Rossi
Vanderbilt Law School Faculty Publications
The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility …
Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi
Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi
Vanderbilt Law School Faculty Publications
Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other--especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the antitrust state-action exception against alternative interpretations, such as the substantive efficiency-preemption approach that Richard Squire recently advanced, and it elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused around delegation issues …