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The Influence Of The Areeda-Hovenkamp Treatise In The Lower Courts And What It Means For Institutional Reform In Antitrust, Rebecca Haw Allensworth
The Influence Of The Areeda-Hovenkamp Treatise In The Lower Courts And What It Means For Institutional Reform In Antitrust, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
It is often pointed out that while the United States Supreme Court is the final arbiter in setting antitrust policy and promulgating antitrust rules, it does so too infrequently to be an efficient regulator. And since the antitrust agencies, the Federal Trade Commission ("FTC") and the Antitrust Division of the Department of Justice ("DOJ"), rarely issue guidelines, and even more rarely issue rules or regulations, very little antitrust law is handed down from on high. Instead, circuits split, and lower courts must muddle through new antitrust problems by finding analogies in technologically and socially obsolete precedents. When faced with this …
Adversarial Economics In Antitrust Litigation: Losing Academic Consensus In The Battle Of The Experts, Rebecca Haw Allensworth
Adversarial Economics In Antitrust Litigation: Losing Academic Consensus In The Battle Of The Experts, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
The adversarial presentation of expert scientific evidence tends to obscure academic consensus. In the context of litigation, small, marginal disagreements can be made to seem important and settled issues can be made to appear hopelessly deadlocked. This Article explores this dynamic's effect on antitrust litigation. Modem antitrust law is steeped in microeconomics, and suits rely heavily on economic expert witnesses. Indeed, expert testimony is often the "whole game" in an antitrust dispute because experts testify about dispositive issues such as the competitive effect of a business practice or the relevant boundaries of a market. And the Supreme Court has encouraged-even …
Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi
Political Bargaining And Judicial Intervention In Constitutional And Antitrust Federalism, Jim Rossi
Vanderbilt Law School Faculty Publications
Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose …
Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi
Moving Public Law Out Of The Deference Trap In Regulated Industries, Jim Rossi
Vanderbilt Law School Faculty Publications
This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and …