Law Commons^™

Global Value Chains And Resource Corridors: The Nexus Is Regional Integration, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

To be more involved in the global value chains, sub-Saharan African countries should intensify their regional integration efforts. A first step in this direction can be implementing cross-border resource-based development corridors.

Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thom Lambert, Alden F. Abbott

Faculty Publications

In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general, and the U.S. Supreme Court in particular, under Chief Justice Roberts have in substantial part adopted Easterbrook's "limits of antitrust" approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to …

Revising The U.S. Vertical Merger Guidelines: Policy Issues And An Interim Guide For Practitioners, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

Mergers and acquisitions are a major component of antitrust law and practice. The U.S. antitrust agencies spend a majority of their time on merger enforcement. The focus of most merger review at the agencies involves horizontal mergers, that is, mergers among firms that compete at the same level of production or distribution.

Vertical mergers combine firms at different levels of production or distribution. In the simplest case, a vertical merger joins together a firm that produces an input (and competes in an input market) with a firm that uses that input to produce output (and competes in an output market). …

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

The New Road To Serfdom: The Curse Of Bigness And The Failure Of Antitrust, Carl Bogus

Law Faculty Scholarship

This Article argues for a paradigm shift in modern antitrust policy. Rather than being concerned exclusively with consumer welfare, antitrust law should also be concerned with consolidated corporate power. Regulators and courts should consider the social and political, as well as the economic, consequences of corporate mergers. The vision that antitrust must be a key tool for limiting consolidated corporate power has a venerable legacy, extending back to the origins of antitrust law in early seventeenth century England, running throughout American history, and influencing the enactment of U.S. antitrust laws. However, the Chicago School's view that antitrust law should be …

Balancing Effects Across Markets, Daniel A. Crane

Articles

In Philadelphia National Bank (PNB), the Supreme Court held that it is improper to weigh a merger's procompetitive effects in one market against the merger's anticompetitive effects in another. The merger in question, which ostensibly reduced retail competition in the Philadelphia area, could not be justified on the grounds that it increased competition against New York banks and hence perhaps enhanced competition in business banking in the mid-Atlantic region. I will refer to the Supreme Court's prohibition on balancing effects across markets as a "market-specificity" rule. Under this rule, efficiencies that may counterbalance anticompetitive aspects must be specific to …

Newsroom: Fcc's Sohn On Consumer Protection, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Exclusionary Conduct Of Dominant Firms, R&D Competition, And Innovation, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This paper evaluates the innovation consequences of antitrust enforcement against the exclusionary conduct of dominant firms through a Nash equilibrium model of research and development (R&D) competition to create new products. In the two-firm model, whether one firm regards the other firm’s R&D investment as a strategic complement or strategic substitute turns on an increasing differences condition: whether the first firm’s incremental benefit of increased R&D investment is greater if its rival’s R&D effort succeeds or if its rival’s R&D effort fails. Antitrust prohibitions on pre-innovation exclusion and post-innovation exclusion are found to be effective in different strategic settings: preventing …

Cguppi: Scoring Incentives To Engage In Parallel Accommodating Conduct, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis

Georgetown Law Faculty Publications and Other Works

We propose an index for scoring coordination incentives, which we call the “coordination GUPPI” or cGUPPI. While the cGUPPI can be applied to a wide range of coordinated effects concerns, it is particularly relevant for gauging concerns of parallel accommodating conduct (PAC), a concept that received due prominence in the 2010 U.S. Horizontal Merger Guidelines. PAC is a type of coordinated conduct whereby a firm raises price with the expectation—but without any prior agreement—that one or more other firms will follow and match the price increase. The cGUPPI is the highest uniform price increase that all the would-be coordinating firms …

Trending @ Rwulaw: Susan Schwab Heyman's Post: Defining The Boundaries Of Insider Trading, Susan Schwab Heyman

Law School Blogs

No abstract provided.

Not Treble Damages: Cartel Recoveries Are Mostly Less Than Single Damages, John M. Connor, Robert H. Lande

All Faculty Scholarship

Antitrust law provides treble damages for victims of antitrust violations, but the vast majority of private cases settle. The average or median size of these settlements relative to the overcharges involved has, until now, been only the subject of anecdotes or speculation. To ascertain what we term "Recovery Ratios," we assembled a sample consisting of every completed private U.S. cartel case discovered from 1990 to mid-2014 for which we could find the necessary information. For each of these 71 cases we collected, we assembled neutral scholarly estimates of affected commerce and overcharges. We compared these to the damages secured in …

Deterrence And Antitrust Punishment: Firms Versus Agents, Keith N. Hylton

Faculty Scholarship

Antitrust enforcement regimes rely on penalties against two groups of actors for deterrence: penalties against the violating firm and penalties against the violating firm's agents. Here, I examine the economics of punishing agents versus firms. My area of application is antitrust, but the argument applies generally to other fields in which the government has the choice of punishing the agent, the firm, or both. This analysis suggests that whenever the firm has an incentive, given existing penalties, to engage in some illegal act that may result in relatively modest punishment for its agents, the firm can almost always induce its …

The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for …

Wrong Direction On Climate, Trade And Development, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In pushing for Trade Promotion Authority, the Obama administration argues that the agreements it is negotiating (including TPP and TTIP) are true 21st century agreements that correct the failings of past agreements and will promote trade and investment that can both re-launch America as the key economic player and promote broad-based sustainable development at home and abroad.

Why Fast Track Is A Dangerous Gift To Corporate Lobbies, Jeffrey D. Sachs, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The Obama Administration is now on track to get "fast track" legislation through the Senate, heading towards a close vote in the House. The end goal is to conclude two major business treaties: the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP) and the Trans-Pacific Partnership Agreement (TPP). The House Democrats are right to withhold their support until key treaty positions favored by the White House are dropped.

Investor-State Dispute Settlement, Public Interest And U.S. Domestic Law, Lise Johnson, Lisa E. Sachs, Jeffrey D. Sachs

Columbia Center on Sustainable Investment Staff Publications

As negotiations are ongoing in the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP), CCSI staff and Jeffrey Sachs discuss the implications of investor-state dispute settlement (ISDS) for domestic law and policy, focusing on effects within the US. The paper concludes that the risks ISDS poses for domestic law are significant and unjustified, and that there are preferable policy alternatives to pursue as a means of protecting the rights of investors operating overseas.

Antitrust Federalism And State Restraints Of Interstate Commerce: An Essay For Herbert Hovenkamp, Alan J. Meese

Faculty Publications

No abstract provided.

Quality-Enhancing Merger Efficiencies, Roger D. Blair, D. Daniel Sokol

UF Law Faculty Publications

The appropriate role of merger efficiencies remains unresolved in US antitrust law and policy. The Patient Protection and Affordable Care Act (ACA) has led to a significant shift in health care delivery. The ACA promises that increased integration and a shift from quantity of performance through increased competition will create a system in which quality will go up and prices will go down. Increasingly, due to the economic trends that respond to the ACA, including considerable consolidation both horizontally and vertically, it is imperative that the antitrust agencies provide an economically sound and administrable legal approach to efficiency enhancing mergers. …

Licensing Health Care Professionals, State Action And Antitrust Policy, Roger D. Blair, Christine Piette Durrance

UF Law Faculty Publications

In this Essay, we raise some economic concerns about the wisdom of conferring antitrust immunity on professional licensing boards, which are often comprised of members of the profession and therefore apt to be motivated by self-interest rather than the public interest. In Part II, we examine the political economy of special interest legislation, which suggests that little public good results from replacing competitive market forces with self-regulation. In Part III, we employ a basic economic model to generate predictions of the economic effects of professional licensing. Part IV provides a survey of the empirical research in this area, which confirms …

All I Really Need To Know About Antitrust I Learned In 1912, Daniel A. Crane

Articles

Herbert Hovenkamp has indisputably earned the deanship of contemporary antitrust scholarship. One could point to many different attributes by which he has earned his laurels: fantastic scholarly productivity; clarity and precision in the craft of writing; analytical depth in both law and economics; moderation in a field apt to polarization; and custodianship of the influential Areeda treatise. In this Essay, I hope to honor another quality that has contributed significantly to Herb’s tremendous success as an antitrust scholar—his engagement with history. Much contemporary antitrust scholarship bursts with excitement at the discovery of new phenomena or theories that in all actuality …

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

UF Law Faculty Publications

This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …

Ripe For Refinement: The State’S Role In Interpretation Of Fet, Mfn, And Shareholder Rights, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Over recent years, many states have taken steps to refine and modernize their investment treaties. These reforms, however, are typically only included in newer treaties or model agreements. States continue to be exposed to claims, litigation, and potential damages under older “old-style” agreements. These risks are particularly acute given that tribunals have often permitted investors to “treaty shop” to obtain more favorable protections, and have also permitted investors to use the most-favored nation (MFN) provision to “import” more investor-friendly (or at least less clear) provisions from other treaties.

This working paper discusses one strategy states can use to try to …

Rediscovering Capture: Antitrust Federalism And The North Carolina Dental Case, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay analyzes the Supreme Court's 2015 decision in the North Carolina Dental case, assessing its implications for federalism. The decision promises to re-open old divisions that had once made the antitrust "state action" doctrine a controversial lightning rod for debate about state economic sovereignty.

One provocative issue that neither the majority nor the dissenters considered is indicated by the fact that nearly all the cartel customers in the Dental case were located within the state. By contrast, the cartel in Parker v. Brown, which the dissent held up as the correct exemplar of the doctrine, benefited California growers …

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.

This paper is an effort to assist courts …

The Federal Question In Patent-License Cases, Amelia Rinehart

Utah Law Faculty Scholarship

The jurisdictional rules that determine whether a license case arises under the patent laws are cumbersome and expensive for courts and litigants alike. Gunn v. Minton, a recent patent-malpractice case raising very different concerns than the ones raised in license cases, will only add to the inconsistency, inefficiency, and uncertainty that surround this “dark corridor” of federal-question jurisdiction. The time has come for a new assessment of arising-under jurisdiction in patent cases that reduces these burdens, promotes uniformity, encourages patent challenges, and reflects Congress’s intent to carry federal patent questions into federal courts.

Predatory Pricing Under The Areeda-Turner Test, Herbert J. Hovenkamp

All Faculty Scholarship

Few works of legal scholarship have had the impact enjoyed by Areeda and Turner's 1975 article on predatory pricing. Proof of predatory pricing under the Areeda-Turner test requires two things. The plaintiff must show a market structure such that the predator could rationally foresee "recouping the losses through higher profits earned in the absence of competition." This requirement, typically called "recoupment," requires the plaintiff to show that, looking from the beginning of the predation campaign, the predator can reasonably anticipate that the costs of predation will be more than offset by the present value of a future period of monopoly …

Trending@Rwu Law: Professor Carl Bogus's Post: When Corporations Grow Too Powerful: Reviving An Old Debate, Carl Bogus

Law School Blogs

No abstract provided.

The Revolving Door, Wentong Zheng

UF Law Faculty Publications

The revolving door between the government and the private sector has long been presumed to lead to the capture of regulators by industry interests. A growing body of empirical literature, however, either finds no conclusive evidence of a capture effect or finds evidence of an opposite effect that the revolving door indeed results in more aggressive, not less aggressive, regulatory actions. To account for these incongruous results, scholars have formulated and tested a new “human-capital” theory positing that revolving-door regulators have incentives to be more aggressive toward the regulated industry as a way of signaling their qualifications to prospective industry …

Brief Of Antitrust Scholars As Amici Curiae In Support Of Appellees, Supporting Affirmance, Chris Sagers, K. Craig Wildfang, Ryan W. Marth, David Martinez

Law Faculty Briefs and Court Documents

Amici urge affirmance for three principal reasons. First, we elaborate a point to dispel Appellant's suggestion that antitrust somehow does not belong here. Second, we show that ordinary rule of reason treatment was appropriate. Relying rather daringly on a case that it overwhelmingly lost, Appellant asks this Court to find within NCAA v. Board of Regents of Univ. of Okla., 468 U. S. 85 (1984), a rule that its "amateurism" or "eligibility" restraints are "valid...as a matter of law." NCAA Br. at 14, 22. Board of Regents did not say that, and even Appellant's own amici admit it. See Wilson …

Financial Market Bottlenecks And The 'Openness' Mandate, Felix B. Chang

Faculty Articles and Other Publications

Financial market infrastructures (“FMIs”), which facilitate the execution of financial transactions, exhibit such strong economies of scale that they are natural monopolies. In each market, production is controlled by a few dominant players. Federal courts have traditionally checked the abuses of natural monopolies under the Sherman Act. Yet recent Supreme Court decisions have reined in the role of antitrust in regulated industries, where administrative bodies set and enforce standards. To this effect, financial regulations require certain FMIs to grant open, nondiscriminatory access to users.

This Article argues that weak “openness” regulations must be buttressed by their antitrust counterpart — specifically, …