Law Commons^™

Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford

Faculty Publications

This paper examines the impact of the 1982 Department of Justice Merger Guidelines on the stock market prices of publicly traded firms in the United States. We argue that those Guidelines were perceived by the market as a real change in enforcement policy that would result in substantial deregulation of mergers throughout the economy. We conduct an event study of S&P 500 firms to test this hypothesis and find evidence of a significant positive effect on the stock prices of firms in moderately concentrated industries subject to antitrust regulation, the firms for which the 1982 Guidelines articulate a substantially less …

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

All Faculty Scholarship

Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …

The Antitrusting Of Patentability, Saurabh Vishnubhakat

Faculty Scholarship

Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …

Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane

Articles

Since I have already published a lengthy academic article on antitrust and wealth inequality, I have the freedom of using this piece to present the key arguments unvarnished by dense citations or technical details (readers interested in those things should consult my earlier article) and to respond to some of the criticisms of my article that have since been levied. My thesis, before and now, is this: claims that antitrust enforcement advances income or wealth progressivity are overstated and rest on simplistic and unrealistic understandings of how antitrust actually operates. While some enforcement actions may generate progressive results, others will …

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

All Faculty Scholarship

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new …

Bitcoins And Other Cryptocurrencies As Property?, Kelvin F. K. Low, Ernie G. S. Teo

Research Collection Yong Pung How School Of Law

The hype over bitcoins and other cryptocurrencies has been compared to the tulip mania in seventeenth-century Netherlands. As they have gained popularity, the law has approached the subject warily, mostly from a regulatory perspective. However, there has been no comprehensive consideration of the fundamental nature of a cryptocurrency owner’s private law relation to his cryptocurrencies. Whether or not cryptocurrencies achieve mainstream adoption, this question will inevitably have to be addressed. This paper considers if bitcoins and other cryptocurrencies might be recognised as the subject of property rights by Commonwealth courts and if so, what such rights ought to entail. It …

Irma Price Gouging Highlights Sad Truth: Consumer Fleecing Is The New Normal, Ramsi Woodcock

Law Faculty Popular Media

By bringing desperation to so many, Hurricane Irma is revealing a sad fact about many American companies, and not just airlines: that they have come in recent years to embrace taking advantage of desperate consumers as a central part of their business models.

The practice, called dynamic pricing, is intended to ration scarce goods and services, yet, as I show in a recent paper, it primarily harms consumers by making it easier for companies to fleece them.

Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This article examines the legal implications of the interconnections of the global derivatives market, such as the exchange and over-the-counter (OTC) markets, in East and Southeast Asia. First, we introduce the interconnectedness of the global derivatives market. We then examine some legal implications of such interconnectedness from several angles, such as the extraterritoriality of relevant regulations (notably the reporting, clearing and trading mandates prescribed by the G20 and the new initial margin rule), standard product documentation, the effect of substituted compliance, the potential competition effect due to shifting OTC trades to exchange trading and the effect of consolidating exchanges and/or …

Amazon's Whole Foods Deal Could Still Be Reversed Thanks To Forgotten Antitrust Case, Ramsi Woodcock

Law Faculty Popular Media

Amazon formally took ownership of Whole Foods this week after the Federal Trade Commission signaled on August 23 that it wouldn’t stop the deal.

The online retailer isn’t wasting any time remaking the high-end grocery chain in its low-price image. Its first act involved cutting prices on dozens of items, from avocados to tilapia. But that is not what is sending shivers down the aisles of rival food retailers like Walmart, which now controls 20 percent of the grocery market by pursuing just such a low-price strategy.

The reason, which the FTC ignored in providing its imprimatur, is that Amazon …

Big Data, Price Discrimination, And Antitrust, Ramsi Woodcock

Law Faculty Scholarly Articles

Antitrust law today guarantees a particular distribution of wealth between consumers and firms by promoting competition in some markets, but allowing firms to retain pricing power in other markets, such as those in which a firm has achieved power through oligopoly or by fielding a superior product. By giving firms the power to identify individual consumers at the point of sale and determine the maximum price that each consumer can be made to pay for a product, big data will soon allow firms with pricing power to charge each consumer the highest price that the consumer is able to pay, …

Eu's Antitrust 'War' On Google And Facebook Uses Abandoned American Playbook, Ramsi Woodcock

Law Faculty Popular Media

On June 27, the European Union imposed a €2.4 billion (US$2.75 billion) fine on Google for giving favorable treatment in its search engine results to its own comparison shopping service. And Germany’s antitrust enforcer is investigating Facebook for asking users to sign away control over personal information.

In contrast, American antitrust enforcers have shown little interest in these companies. The Federal Trade Commission (FTC) did open an investigation into whether Google has a search bias, but closed it in 2013, despite recognizing that it “may have had the effect of harming individual competitors.”

Anti-Americanism, however, does not explain these starkly …

Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

All Faculty Scholarship

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

When Antitrust Becomes Pro-Trust: The Digital Deformation Of U.S. Competition Policy, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Justice Scalia And Sherman Act Textualism, Alan J. Meese

Faculty Publications

No abstract provided.

The Bargaining Robot, Ramsi Woodcock

Law Faculty Scholarly Articles

The primary threat of the rise of the machines is not to competition itself, but to the bargaining power of consumers, given any level of competition in the market. By enabling firms to interact with each consumer on an individual basis, technology will permit firms to tailor price to the highest level each individual consumer is willing to pay and to use tailored marketing to break each consumer’s will to hold out for a better deal, reducing consumer welfare for any given level of competition. By giving consumers more outside options, the promotion of competition can limit the effects of …

Market Power In The U.S. Economy Today, Jonathan Baker

Presentations

Market concentration measures the extent to which market shares are concentrated between a small number of firms. It is often taken as a proxy for the intensity of competition. Indeed, in recent years changes in concentration have increasingly been used to argue that the intensity of competition is falling, that the growth of large firms with high market shares is driving up profits, damaging innovation and productivity, and increasing inequality. Some have argued that the competition rules need to be rewritten and a crackdown by overly antitrust agencies is required. The simplicity of this framing has found supporters across the …

Whatever Happened To Quick Look?, Edward D. Cavanagh

Faculty Publications

In California Dental Ass’n v. F.T.C. (hereafter “Cal Dental”), the Supreme Court observed that there is no sharp divide separating conduct that can be summarily condemned under section one of the Sherman Act as per se unlawful from conduct that warrants a more searching factual assessment to ascertain any anticompetitive effect and hence its legality. The Court further observed that not every antitrust claim falling outside the narrow ambit of per se illegality warrants the detailed Rule of Reason analysis prescribed in Chicago Board of Trade. The Court thereby eschewed any notion that section one analysis is …

$=Euro=Bitcoin, Hilary Allen

Articles in Law Reviews & Other Academic Journals

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. This Article argues that if virtual currencies are used at that scale, it would pose threats to the stability of the financial system-threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile-Bitcoin can remain money only for so long as people have confidence that bitcoins will be readily accepted by others as a means of payment. Unlike the U.S. dollar, which is …

The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

I Dissent: The Federal Circuit’S “Great Dissenter,” Her Influence On The Patent Dialogue, And Why It Matters, 19 Vand. J. Ent. & Tech. 873 (2017), Daryl Lim

UIC Law Open Access Faculty Scholarship

This Article is the first study to comprehensively explore the centrality of the patent dialogue at the Court of Appeals for the Federal Circuit, the nation’s principal patent court from empirical, doctrinal, and policy perspectives. It offers several insights into how the Federal Circuit reaches consensus and when it does not, serving as a window into its inner workings, a reference to academics, judges, and attorneys alike. More broadly, this Article provides a template to study the “legal dialogue” of other judges at the Federal Circuit, those in other Circuits, as well as those in other areas of the law. …

Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim

UIC Law Open Access Faculty Scholarship

This Article argues that courts should operationalize insights offered by behavioral economics in developing jurisprudence at the patent-antitrust interface.

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Trading Spaces: The Changing Role Of The Executive In U.S. Trade Lawmaking, Kathleen Claussen

Articles

Since the earliest days of the republic, the U.S. executive has wielded a significant but constitutionally bounded influence on the direction of U.S. trade law. In the twenty-first century, the growth of free trade agreements has led to an institutionalization of trade norms that permits the executive many more spaces for engagement with trading partners. In addition, other types of quotidian lawmaking extend the power of the executive in both public and hidden spaces beyond congressional delegation, even as that power remains substantially bounded by congressional control. This Article analyzes the dynamics between the branches that will direct future U.S. …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Faculty Scholarship

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

Constraining Monitors, Veronica Root

Faculty Scholarship

Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …

Ex Parte Seizures Under The Dtsa And The Shift Of Ip Rights Enforcement, Yvette Joy Liebesman

All Faculty Scholarship

The ex parte seizure provision of the Defend Trade Secrets Act is another step in a long line of legislation that shifts the costs of private enforcement to the public, which already has a toehold in copyright and trademark law. The ex parte provision — which is not incorporated into any state trade secret law — relieves rights owners of two “burdens.” First, it relieves the trade secret owner of the burden of actually having to compete in the marketplace. Second, it relieves the trade secret owner of the burden of the costs associated with the discovery process of a …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark Mckenna

Journal Articles

This Article, delivered as the 2017 Oldham Lecture at the University of Akron School of Law, focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement — use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but …

Comment On “The Empirical Basis For Antitrust: Cartels, Mergers, And Remedies”, John M. Connor, Robert H. Lande

All Faculty Scholarship

In this journal, James Langenfeld critically reviewed four of the present authors’ articles that analyze the size of cartel overcharges and their antitrust policy implications. In this comment, we explain why we believe Langenfeld errs in his criticism of our work. In particular, this comment discusses the variation in research quality of the sources used to compile a large sample of historical cartel overcharges; the advisability of trimming outliers or large estimates from the sample; alleged publication bias; why our 25% median estimate is much more likely to be correct than the US Sentencing Guideline’s 10% presumption; and the implications …