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 …

A Sight For Sore Eyes: The Seventh Circuit Correctly Interprets Section 12 Of The Clayton Act, Ryan Moore

Seventh Circuit Review

In order to hail a defendant into federal court, a plaintiff must establish personal jurisdiction and venue. Under general principles of federal law, personal jurisdiction is proper whenever the defendant would be amenable to suit under the laws of the state in which the federal court sits. And venue is proper in any district where the defendant "resides" (i.e., is subject to personal jurisdiction). Section 12 of the Clayton Act, however, supplements these general principles. It has a liberal service-of-process provision that allows personal jurisdiction in any federal district court in the nation. But venue is proper only in the …

The Mpaa: A Script For An Antitrust Production, Ian G. Henry

West Virginia Law Review

No abstract provided.

One Short Of A Load: Why An Illinois Brick Repealer Will Increase Private Antitrust Enforcement In Montana, Gale Price

Montana Law Review

One approach Montana could take to increase private antitrust enforcement would be to enact an Illinois Brick repealer rejecting the indirect purchaser rule. Under ARC America, such a rule is not preempted by federal law. A repealer would allow Montana to counteract some of the negative effects of Illinois Brick, including the denial of compensation to injured indirect purchasers and the deferral of private enforcement to direct purchasers who may have less incentive to sue their suppliers. The MUTPA is well suited for such a repealer because it allows class actions and has clearly defined many anticompetitive behaviors as unlawful. …

The Need For Patent-Centric Standard Of Antitrust Review To Evaluate Reverse Payment Settlements, Tania Khatibifar

Fordham Intellectual Property, Media and Entertainment Law Journal

Reverse payment settlements have ignited a firestorm debate among all affected parties: consumer groups, brand-name pharmaceutical companies, generic manufacturers, pharmaceutical wholesalers and retailers, lawmakers, executive agencies, and the federal courts. The Federal Trade Commission (“FTC”) has waged a decade-long battle against such private settlements of pharmaceutical patent litigation as illegal market-sharing agreements, with skirmishes among the circuits trending in favor of the settling parties until recently. The Third Circuit’s recent decision in In re K-Dur Antitrust Litigation unsettled this trend, and the Supreme Court granted the FTC’s petition for a writ of certiorari in a separate case on the issue …

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Seattle University Law Review

The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research demonstrates that …

The Ftaia In Its Proper Place: Merits, Jurisdiction, And Statutory Interpretation In Minn-Chem, Inc. V. Agrium Inc., Donald R. Caplan

Seventh Circuit Review

The Foreign Trade Antitrust Improvements Act (FTAIA) excludes anticompetitive conduct occurring in purely foreign commerce from the reach of U.S. antitrust laws. However, the act permits the application of U.S. antitrust laws to both import commerce and foreign commerce that has a “direct, substantial, and reasonably foreseeable” effect on U.S. commerce. Controversy over the act centers on whether the act proscribes a federal court's subject-matter jurisdiction. In his 1993 dissent in Hartford v. California, Justice Scalia argued that the act does not affect a court's adjudicative authority. However, ten years later the Seventh Circuit Court of Appeals held the …

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 …

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.

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 …

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 …

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

Fordham Law Review

No abstract provided.

Against Goals, Eleanor M. Fox

Fordham Law Review

No abstract provided.

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 …

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 …

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 …

Foreword: Antitrust’S Pursuit Of Purpose, Barak Orbach

Fordham Law Review

No abstract provided.

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 …

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 …

From Microsoft To Google: Intellectual Property, High Technology, And The Reorientation Of U.S. Competition Policy And Practice, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan

Michigan Law Review

Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …

The Federal Antitrust Implications Of Local Rent Control: A Plaintiff's Primer, Steven G. Churchwell

Pepperdine Law Review

The proliferation of rent control laws in many California cities has led to a furious debate concerning its legal, economic, and social consequences. Leading scholars believe that rent control only exacerbates existing housing shortages and excludes the poor, the minority and the elderly from scarce rental housing. This article sets forth the proposition that the fixing of rent ceilings by a local government violates the federal antitrust laws and can be invalidated in federal court.

The Commercialization Of College Football: The Universities Of Oklahoma And Georgia Learn An Antitrust Lesson In Ncaa V. Board Of Regents, Suzanne E. Rand

Pepperdine Law Review

No abstract provided.

Reasoning Per Se And Horizontal Price Fixing: An Emerging Trend In Antitrust Litigation?, Joseph W. Defuria Jr.

Pepperdine Law Review

No abstract provided.

The Department Of Justice Merger Guidelines: A Critique And A Proposed Improvement, R. Preston Mcafee, Michael A. Williams

Pepperdine Law Review

No abstract provided.

Decertifying Players Unions: Lessons From The Nfl And Nba Lockouts Of 2011, Nathaniel Grow

Vanderbilt Journal of Entertainment & Technology Law

This Article analyzes the National Football League (NFL) and National Basketball Association (NBA) lockouts of 2011, focusing in particular on the role union dissolution played in each work stoppage. Although the existing academic literature had generally concluded that players unions in the four major US professional sports leagues were unlikely to disband during a labor dispute, the unions in both the NFL and NBA elected to dissolve in response to lockouts by ownership. This Article provides an explanation for why the prior literature misjudged the role that union dissolution would play during the 2011 work stoppages. It argues that previous …

Gmonopoly: Does Search Bias Warrant Antitrust Or Regulatory Intervention?, Andrew Langford

Indiana Law Journal

No abstract provided.