Law Commons^™

Harmonizing Preferential Rules Of Origin In The Wto System, John J. Barceló Iii

Cornell Law Faculty Publications

Preferential arrangements (bilateral and multilateral free trade areas and GSP systems (preferences for developing countries)) are emerging everywhere in the world trading system and are causing concern because they discriminate against non-members and add complexity, distortions and inconsistency to the global system. Rules of origin (ROOs) linked to these arrangements are a significant part of the problem. More and more they have become the source in their own right of distortions in trade patterns, complexity, non-transparency and inconsistency. This essay argues that WTO members should authorize negotiations seeking to harmonize preferential ROOs (rules of origin linked to preferential arrangements) around …

Guideline Institutionalization: The Role Of Merger Guidelines In Antitrust Discourse, Hillary Greene

William & Mary Law Review

With the growth of the administrative state, agency-promulgated enforcement policy statements, typically referred to as guidelines, have become ubiquitous in the U.S. federal system. Yet, the actual usage and impact of such guidelines is poorly understood. Often the issuing agencies declare the guidelines to be nonbinding, even for themselves. Notwithstanding this disclaimer, the government, private parties, and even the courts frequently rely on the guidelines in a precedent-like manner. In this Article, Professor Greene examines the evolution of one system of enforcement policy guidelines-the U.S. federal antitrust merger guidelines--and finds that these guidelines have acted as a stealth force on …

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields …

Municipal Broadband: Challenges And Perspectives, Craig Dingwall

Federal Communications Law Journal

This Article reviews the status and challenges of municipal broadband and provides recommendations for responsible municipal broadband deployment. The Author reviews broadband demand; possible justifications for and the status of municipal broadband deployment; speed, feature, and price considerations; regulatory and technical issues; and relevant laws and legislation. The Author offers specific national policy recommendations and concludes that government/industry partnerships offer perhaps the best solution for municipal broadband deployment where broadband needs aren't met.

Analyzing The World Bank's Blueprint For Promoting "Information And Communications", Sherille Ismail

Federal Communications Law Journal

Book Review: Information and Communications for Development 2006: Global Trends and Policies, issued by the World Bank.

This Review provides a summary and brief analysis of foreign private investment, the book's blueprint for reform, and how investments have fared in promoting economic growth and reducing poverty. The book is a valuable asset for governments, scholars, investors, and the international community seeking to serve end users in developing countries.

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for relaxing caps …

The Legal Status Of Spyware, Daniel B. Garrie, Alan F. Blakley, Mathew J. Armstrong

Federal Communications Law Journal

This Article examines the legal status of Spyware under federal and common law in the United States of America. The Authors begin with a technical overview of Spyware technology, which covers Spyware's functionality, methods of dispersion, and classification. The Authors then analyze the treatment of Spyware under the Computer Fraud and Abuse Act, the Stored Communications Act, the Wiretap Act, and under general tort claims of trespass to chattels, invasion of privacy, and intrusion upon seclusion. The Authors conclude that none of the aformentioned causes of action provide an adequate remedy at law for Spyware victims. Moreover, the Authors note …

Opening Bottlenecks: On Behalf Of Mandated Network Neutrality, Bill D. Herman

Federal Communications Law Journal

This Article calls for mandated "network neutrality," which would require broadband service providers to treat all nondestructive data equitably. The Author argues that neutral networks are preferable because they better foster online innovation and provide a more equitable distribution of the power to communicate. Without mandated network neutrality, providers in highly concentrated regional broadband markets will likely begin charging content providers for the right to send data to end users at the fastest speeds available. The Author demonstrates that regional broadband competition and forthcoming transmission technologies are unlikely to prevent broadband discrimination, ad hoc regulation under current statutory authority is …

The Information Quality Act: The Little Statute That Could (Or Couldn't?) Applying The Safe Drinking Water Act Amendments Of 1996 To The Federal Communications Commission, Kellen Ressmeyer

Federal Communications Law Journal

In December 2000, Congress passed the Information Quality Act - a two sentence rider to a 712-page Appropriations Bill. The Information Quality Act, which seeks to ensure the quality of government-disseminated information, places the White House Office of Management and Budget in a supervisory role. The Office of Management and Budget subsequently finalized a set of mandatory Guidelines applicable to all federal agencies. Among other things, the Guidelines require adherence to the scientific standard articulated in the 1996 Amendments to the Safe Drinking Water Act where such agencies engage in risk analysis to human health, safety, and the environment. As …

Aspectos Econômicos E Jurídicos Sobre Cartéis Na Revenda De Combustíveis: Uma Agenda Para Investigações, Carlos Emmanuel Joppert Ragazzo, Rutelly Marques Da Silva

carlos ragazzo

No abstract provided.

The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter

William & Mary Law Review

When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private "monopolies," in contrast to the general antimonopoly thrust of the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners-or excuses otherwise infringing activity on the part of IP defendants-expressly for the purpose of promoting competition. It does so even though antitrust law -if one were to apply it at all under analogous circumstances-would not find anticompetitive harm without conducting a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient …

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides

ExpressO

Under the rules of the Telecommunications Act of 1996, incumbent local exchange carriers, including Verizon, were obligated to lease parts of their local telecommunications network to any firm at “cost plus a reasonable profit” prices which could combine them at will, add retailing services and sell local telecommunication service as a rival to the incumbent. AT&T, an entrant in local telecommunications, leased parts of Verizon’s network. Trinko, a local telecommunications services customer of AT&T, sued Verizon alleging various anti-competitive actions of Verizon against AT&T, including that Verizon raised the costs of AT&T, its downstream retail rival. The Supreme Court held …

Ley Federal Del Procedimiento Contencioso Administrativo., Bruno L. Costantini García

Bruno L. Costantini García

Ponencia sobre la Ley Federal del Procedimiento Contencioso Administrativo, impartida por Bruno L. Costantini García.

A Neo-Chicago Perspective On The Law Of Product Tying: Exposing The Last Sanctuary Of The Harvard School, Alan J. Devlin

ExpressO

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Price Discrimination With Contract Terms: The Lost Volume Problem, Barry E. Adler, Alan Schwartz

ExpressO

In a common commercial pattern, the seller of a standard product contracts with one buyer and then sells to another at the contract price after the initial buyer breaches. Sellers argue, and courts largely agree, that the seller could have served the contract buyer as well as the later buyer; hence, the seller is entitled to retain a down payment to the extent of, or sue to recover, the profit – price less cost – that it would have realized on the initial sale had that sale been completed. Some courts and many scholars disagree, arguing that resale of the …

Antitrust And Competition Law Update: U.S. V. Visa: Government Wins Major Rule Of Reason Case, William Kolasky, Robert Bell, Lee Greenfield, Veronica Kayne, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On September 17, 2003, the Second Circuit issued an important decision in U.S. v. Visa U.S.A., Inc., 2003 WL 22138519 (2d Cir. Sept. 17, 2003). The court affirmed a district court ruling invalidating Visa and Mastercard rules that prohibit member banks from issuing American Express or Discover.1 The district court had found that these ìexclusionary rulesî substantially harmed competition and failed scrutiny under a rule of reason analysis. Visa is noteworthy both because it is a (relatively rare) government win in a major rule of reason case ó with the Second Circuit affirming the trial courtís rigorous inquiry into the …

An Instrumental Theory Of Market Power And Antitrust Policy, Jeffrey L. Harrison

UF Law Faculty Publications

Since Judge Hand's pivotal opinion in United States v. Aluminum Company of America (Alcoa), the possession of monopoly power has been treated as presumptively legal. The focus of the antitrust laws since then has been on defining when that power is abused. This approach to market power cannot be squared with the prevailing view that antitrust law is grounded in economic theory. To understand why, one must see market power for what it is: the ability of a firm to raise prices above competitive levels and to profitably keep them there. Seen in this light, market power is indistinguishable from …

There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow

Michigan Law Review

This Note argues that outside of labor disputes, sports leagues should be presumed to be single entities. Part I argues that professional sports leagues are single entities in disputes regarding league-wide, non-labor policy. In particular, the focus of the Supreme Court's jurisprudence on economic reality rather than organizational form necessitates a finding that professional sports leagues are single entities in non-labor disputes. Part II argues that professional sports leagues are not single entities for purposes of labor disputes; sports leagues, on the whole, do not involve a unity of interest for labor matters. More importantly, existing precedent outside of the …

The Accident Externality From Driving, Aaron S. Edlin, Pinar Karaca Mandic

Aaron Edlin

Understanding Single-Firm Behavior: Empirical Perspectives Session, Jonathan Baker, Luke Froeb, Robert Marshall, Wally Mullin, David Reitman, F. Michael Scherer, Clifford Winston

Presentations

In 2006 and 2007, the Antitrust Division and the Federal Trade Commission (FTC) cohosted hearings on single-firm conduct and antitrust law. For more information, consult the hearings information page or contact the Legal Policy Section at singlefirmconduct@usdoj.gov.

The Death Of The Doha Round. What Next For Services Trade?, Rafael Leal-Arcas

ExpressO

With the indefinite suspension of the WTO multilateral trade negotiations in July 2006 by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to unblock what is perceived as a danger to the world order. This article analyzes the legal and policy implications of the currently fatal Doha Round for the two main developed WTO Members, i.e., the U.S. and the EC, and the most relevant developing countries of the WTO. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are …

Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a …

China’S Market Participation: The Case For A Paradigm Shift In Analyzing China’S Capital Market Regulation, David P. Finn

ExpressO

This paper deals with recent reforms governing China’s state owned enterprises and how those reforms affect both the domestic and international markets

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets. …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

ExpressO

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …