Law Commons^™

A Three-Tiered Public Policy Approach To Copyright Misuse In The Context Of Tying Arrangements, Sandy Azer

Fordham Law Review

Over two decades since the copyright misuse doctrine was first recognized in Lasercomb America, Inc. v. Reynolds, a uniform approach for determining whether a specific behavior constitutes misuse still does not exist. Circuit courts have commonly applied two competing approaches to the misuse analysis. One approach centers on the public policy underlying copyrights; the other approach centers on antitrust principles. This Note explores relevant jurisprudence and elucidates the shortfalls of each approach. It then proposes a compromise that underscores the interplay between copyright and antitrust laws. The proposed resolution aims to provide a much–needed uniform misuse analysis that does …

How Antitrust Lost Its Goal, Barak Orbach

Fordham Law Review

During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of “competition” as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while “consumer welfare” was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer …

Welfare Standards In U.S. And E.U. Antitrust Enforcement , Roger D. Blair, D. Daniel Sokol

Fordham Law Review

The potential goals of antitrust are numerous. Goals matter to antitrust. We believe that it is total welfare rather than consumer welfare that should drive antitrust analysis. We use this Article as an opportunity to explore both a comparative analysis of welfare standards across E.U. and U.S. competition systems and the impact of welfare standards on global antitrust systemwide welfare.

In this Article, we analyze two types of situations in which there would be a different outcome based on the goal implemented. One scenario involves resale price maintenance (RPM). For RPM, we argue that even if there were a different …

Foreword: Antitrust’S Pursuit Of Purpose, Barak Orbach

Fordham Law Review

No abstract provided.

Institutional Design, Agency Life Cycle, And The Goals Of Competition Law, David A. Hyman, William E. Kovacic

Fordham Law Review

No abstract provided.

Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan B. Baker

Fordham Law Review

This Article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics with politics by describing antitrust’s economic goals as the product of a mid-twentieth century political understanding about the nature of economic regulation that continues to be accepted. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. It identifies contemporary political tensions that threaten to create regulatory gridlock or even to undermine that political understanding …

Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese

Fordham Law Review

This Article critiques the role that the partial equilibrium trade–off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both …

Trusts And The Origins Of Antitrust Legislation, Wayne D. Collins

Fordham Law Review

Between 1888 and 1890, thirteen states and the federal government enacted antitrust legislation criminalizing combinations among competitors intended to control prices in the marketplace. These laws were a reaction to the increasing formation of horizontal combinations, large and small, throughout the economy in the wake of dramatically changing economic conditions since the Civil War. Through most of this period, combinations struggled to find structures that would enable them to operate effectively. Simple combinations of independent firms, although neither criminal nor tortious, were often undermined because state common law refused to enforce the contractual arrangements that would prevent members from deviating …

A Traditional And Textualist Analysis Of The Goals Of Antitrust: Efficiency, Preventing Theft From Consumers, And Consumer Choice, Robert H. Lande

Fordham Law Review

This Article ascertains the overall purpose of the antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or “plain meaning” analysis of the purpose of the antitrust statutes, using Justice Scalia’s methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.S. antitrust cases, and it does this in light of the history of the relevant times.

Both approaches …

The Goals Of Antitrust: Welfare Trumps Choice, Joshua D. Wright, Douglas H. Ginsburg

Fordham Law Review

No abstract provided.

The Essence Of Antitrust: Protecting Consumers And Small Suppliers From Anticompetitive Conduct, John B. Kirkwood

Fordham Law Review

The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct—conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than a total welfare standard, and it is now espoused by the majority of courts.

Proponents of total …

Implementing Antitrust’S Welfare Goals, Herbert Hovenkamp

Fordham Law Review

No abstract provided.

Antitrust’S Democracy Deficit, Harry First, Spencer Weber Waller

Fordham Law Review

No abstract provided.

Should Competition Policy Promote Happiness?, Maurice E. Stucke

Fordham Law Review

What, if anything, are the implications of the happiness economics literature on competition policy? This Article first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well–being. It next surveys the happiness literature on five key issues: (i) What constitutes well–being; (ii) How do you measure well–being; (iii) What increases well–being; (iv) Do people want to be happy; and (v) Can and should the government promote total well–being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore …

Merger Settlement And Enforcement Policy For Optimal Deterrence And Maximum Welfare, Steven C. Salop

Fordham Law Review

Merger enforcement today relies on settlements more than litigation to resolve anticompetitive concerns. The impact of settlement policy on welfare and the proper goals of settlement policy are highly controversial. Some argue that gun–shy agencies settle for too little, while others argue that agencies use their power to delay to extract overreaching settlement terms, even when mergers are not welfare reducing. This Article uses decision theory to throw light on this controversy. The goal of this Article is to formulate and analyze agency merger enforcement and settlement commitment policies in the face of imperfect information, litigation costs, and delay risks …

Against Goals, Eleanor M. Fox

Fordham Law Review

No abstract provided.

The Rocky Path For Private Directors General: Procedure, Politics, And The Uncertain Future Of Eu Antitrust Damages Actions, Marc A. Sittenreich

Fordham Law Review

For the better part of the past decade, the European Commission has engaged in a dialogue with European Union (EU) citizens and businesses in an attempt to strengthen an almost nonexistent private competition enforcement system. In the United States, where private antitrust lawsuits are most prevalent, litigation is justified on the grounds of both deterrence and compensation. While the Commission wants to make private damages actions the primary vehicle for the compensation of aggrieved parties, recent political pressure has made EU officials claim that government enforcement will remain the predominant means for the deterrence of EU antitrust violations. Furthermore, many …

Which Cases Are "Such Cases": Interpreting And Applying Section 12 Of The Clayton Act, Adam B. Perry

Fordham Law Review

This Note examines an issue currently dividing the nation's circuit courts of appeal. The issue presented is how courts should interpret and apply Section 12 of the Clayton Act, the long-arm and venue statute for private antitrust actions brought against corporate defendants. Section 12's poor construction has resulted in courts applying section 12 differently to similar sets of facts. This Note thoroughly discusses section 12 as it relates to antitrust law generally and the procedural elements of bringing a private antitrust action in federal court, examines the existing section 12 case law that illustrates the conflict and the arguments on …

The Nomos And Narrative Of Matsushita, Nickolai G. Levin

Fordham Law Review

No abstract provided.

Recent Antitrust Developments And A Selective Antitrust Perspective Of The Information Superhighway, Stewart A. Pomerantz

Fordham Law Review

No abstract provided.

Universal Analytics, Inc. V. Macneal-Schwendler Corp.: Predators By Hire?, Vincent A. D'Arpino

Fordham Law Review

No abstract provided.

Trial Lawyers And Arco: Jurisprudentially Inconsistent Approaches To Per Se Illegality , Michael Malina

Fordham Law Review

Annual Antitrust Reviews have been presented at the Association of the Bar of the City of New York since 1948, when Progessor Milton Handler instituted the series. The 1990 Review was presented on November 14, 1990, and the following articles are based on those presentations.

Functional Discounts After Texaco V. Hasbrouck, Richard M. Steuer

Fordham Law Review

No abstract provided.

The New Role Of Coercion In Antitrust, Jean Wegmen Burns

Fordham Law Review

With the ascendancy of the economic efficiency approach and its emphasis on competitive prices and output, coercrion--the use of force or threat; to copel another to act against one's will--seemingly no longer has a role to play in antitrust analysis. Professor Burns argues that coercion is indeed still relevant in antitrust analysis, though its role has changed from the central character it once played in the early antitrust cases. After analyzing the evolving role of coercion, Professor Burns concludes that the concept is still useful in vertical restraints and tie-ins distinguishing between efficient restraints and inefficient ones and in evaluating …

Reagan's Judicial Appointees And Antitrust In The 1990s, William E. Kovacic

Fordham Law Review

No abstract provided.

The Economic Interest Requirement In The Per Se Analysis Of Tying Arrangements: A Worthless Inquiry, Eric D. Young

Fordham Law Review

No abstract provided.

"Sovereign" State Policy And State Action Antitrust Immunity, John F. Hart

Fordham Law Review

No abstract provided.

Attorneys’ Fees In Antitrust Litigation: Making The System Fairer, Edward D. Cavanagh

Fordham Law Review

No abstract provided.

The Personal Liability Of Corporate Officers In Private Actions Under The Sherman Act: Murphy Tugboat In Distress, Gregory Walker

Fordham Law Review

No abstract provided.

Antitrust Standing Of Target Corporations To Enjoin Hostile Takeovers Under Section 16 Of The Clayton Act, Matina Kesaris

Fordham Law Review

No abstract provided.