Law Commons^™

Experimental Economics And Antitrust: What Can We Learn From Laboratory Markets?, Bart Wilson

Bart J Wilson

No abstract provided.

Are We Exclusive? Does It Matter?: An Antitrust-Inspired Framework For Understanding Anti-Exclusive Dealing Statutes And The Meaning Of Coercion, Christopher E. Ware, Alison A. Hill

Alison Hill

We both practice in the area of Product Distribution and Franchise law, where we first encountered client concerns regarding the anti-exclusive dealing statutes described in our Article. These laws prevent manufacturers from "coercing" their dealers into not selling products from a competing manufacturer. However, the laws are problematic because they never define what it means for a manufacturer to "coerce" a dealer into an exclusive deal.

Our subsequent research demonstrated four key factors which make our Article timely for publication:

(1) The number of states passing anti-exclusive dealing statutes is continually increasing. Between 2000 and 2007, ten states enacted anti-exclusive …

Making Sense Of Nonsense: Intellectual Property, Antirtust, And Market Power, Ariel Katz

Ariel Katz

While the economic rationale for intellectual property (“IP”) rights rests on the concepts of “monopoly” or market power,” the Supreme Court, in Illinois Tool Works v. Independent Ink, has recently joined a “virtual consensus” among antitrust commentators believing that no presumption of market power should exist in antitrust cases involving IP. This Article critically analyzes this consensus, and clarifies the relationship between IP and market power, shows why IP rights often do confer market power in the antitrust sense, but also explains why acknowledging this should not necessarily lead to oversized application of antitrust law to IP.

Beyond Microsoft: Intellectual Property, Peer Production And The Law’S Concern With Market Dominance., Daryl Lim

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

"Why Can't A Woman Be More Like A Man?" American And Australian Approaches To Exclusionary Conduct, George Hay, Rhonda L. Smith

Cornell Law Faculty Publications

Much of antitrust law (in the U.S.) or trade practices law (in Australia) is about “exclusionary conduct,” things that large firms do to acquire an even larger share of the market or to preserve their large market share from being eroded by smaller rivals or new entrants. In the U.S., the main vehicle for policing inappropriate exclusionary conduct by large firms against smaller competitors is Section 2 of the Sherman Act, which prohibits monopolization or attempted monopolization. In Australia, the main vehicle is Section 46 which, generally speaking, prohibits the misuse of market power. The main purpose of this paper …

The Quiet Revolution In U.S. Antitrust Law, George Hay

Cornell Law Faculty Publications

In this paper, I report on a series of recent decisions in antitrust cases by the U.S. Supreme Court. While each decision, read separately, may be only of moderate interest (even to a U.S. audience), the slate of decisions, looked at in its entirety, conveys a significant message, and one that may have meaning for scholars and practitioners in Australia and other jurisdictions outside the U.S. I would suggest that a quiet revolution is occurring in which the arguments economists have been making for nearly fifty years have suddenly been embraced by both the left and the right on the …

Technological Convergence And Competition On The Edge - „Emerging Markets“ And Their Regulation, Andrea Stazi

Andrea Stazi

Technological convergence, on the one hand, tends to point out new roles - and sometimes also markets - for the players in the communications industry, producing the segmentation of different functions and phases in the value chain. On the other hand, technological convergence could bring forth numerous specific antitrust issues, such as an increase in the market power of the suppliers of more appealing services or contents, or a premature foreclosure of the new market due to leveraging of the power maintained by a company in another market. A topic of particular interest, till now quite neglected by legal doctrine, …

How The Legal System, Along With Growing Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Todd M. Morton

Todd M Morton

The period known as New Hollywood in American film was created by the American legal system coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases along with the 1948 Paramount decision forced Hollywood to produce graphic and existential films that appealed to the disaffected youth generation and laid out in unprecedented style the problems that plagued the youths of the day.

Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement, William H. Page, Seldon J. Childers

UF Law Faculty Publications

An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …

The Legal Periphery Of Dominant Firm Conduct, Herbert J. Hovenkamp

All Faculty Scholarship

This essay explores two different but related problems and how U.S. antitrust law and EU competition law approach them. The first is the offense of attempt to monopolize, which concerns the acts that a firm that is not yet dominant might undertake in order to become dominant. The second is the offense of monopoly or dominant firm leveraging, which occurs when a firm uses its dominant position in one market to cause some kind of harm in a different market where it also does business.

The language of EU and U.S. provisions concerning dominant firms provokes one to think that …

Predatory Buying And The Antitrust Laws, John E. Lopatka, Roger D. Blair

John E Lopatka

No abstract provided.

What Weyerhaeuser Suggests For Punitive Damages, Nickolai G. Levin

Nickolai G. Levin

In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 U.S. 1069 (2007), the Supreme Court addressed the antitrust claim of “predatory bidding”—i.e., that a manufacturer paid too much for an “input.” Although the Ninth Circuit allowed predatory-bidding liability to be based on the jury’s subjective estimation that the defendant paid more than “necessary” for an input, the Supreme Court reversed, holding that the objective, two-part “predatory pricing” test from Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), should govern predatory-bidding claims instead. Otherwise, the Court explained, there would be a serious risk of chilling procompetitive …

Whither Dr. Miles?, Mark D. Bauer

Mark D Bauer

This essay reviews the June 2007 Supreme Court decision of Leegin v. PSKS. That case overruled a 96 year old Supreme Court case, Dr. Miles v. Park & Sons. The Leegin case eliminated a per se rule in antitrust for minimum resale price maintenance between manufacturers and retailers. The essay examines the history and controversy of Dr. Miles, acts of Congress to circumvent and then restore it, the controversy over the Leegin case, and likely outcomes in the future.

Differing Shades Of Meaning, Robin C. Feldman

Robin C Feldman

The relationship between patent law and antitrust law has challenged legal minds since the emergence of antitrust law in the late 19th century. In reductionist form, the two concepts pose a natural contradiction: One encourages monopoly while the other restricts it. To avoid uncomfortable dissonance, the trend across time has been to try to harmonize patent and antitrust law. In particular, harmonization efforts in recent decades have led Congress and the courts to engage in a series of attempts, some aborted and some half-formed, to graft antitrust doctrines onto patent law. These efforts have failed to resolve the conflicts.

This …

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The …

Análisis De La Necesidad De Una Ley De Competencia En La República Dominicana, Fanny Solano Agramonte

Fanny Solano Agramonte

The Dominican Republic is one of the few countries of Latin America that at the moment lacks a Competition Law which would allow it to identify and sanction certain practices that restrict competition. Although the Dominican Constitution consecrates a market economy and prohibits monopolies, and although the Dominican government has made efforts to equip this country with a legal framework to promote and protect competition, the results have been little. The purpose of this article is to analyse the existing regulation of competition of the Dominican Republic, reviewing the social, economic and political context in order to explain the difficulties …

Relaxing The Noose Around Tying Arrangements: Reifert V. South Central Wisconsin Mls Corp. Exposes Problems With The Per Se Analysis, Paul C. Mallon Jr.

Seventh Circuit Review

The U.S. Supreme Court has employed the per se standard for illegality of tying arrangements under antitrust laws for some sixty years. The tying arrangement, once reviled by the House of Representatives as "one of the greatest agencies and instrumentalities of monopoly ever devised by man," is now understood by many to have potentially redeeming, as well as condemning, qualities. As a result, scholars and judges alike have decried the per se standard as ineffective and called for its abandonment. However, the Supreme Court continues to endorse the per se standard when assessing tying arrangements. The Seventh Circuit, like other …

A Control Theory Model Of Pricing For A Firm Facing A Stochastic Environment – A Firm’S Dynamic Pricing Strategy When Faced With The Threat Of Antitrust Action, Manak Gupta, Atin Basu Choudhary

Atin Basu Choudhary

No abstract provided.

Patent Dispute Identification In China :Harmony Between The Protection And Restraint, Dong Zhang

Dr. Dong Zhang

How to keep a balance between restraining patent abuse and weakening local intervention has been a global issue, especially in such developing countries as China, while meeting a serious challenge of intellectual property protection. This article argues that patent right is definitely a kind of property, which must remain fully within the reach of antitrust law and it is against regulating special independent provisions in the drafted Chinese antitrust law to emphasize unduly on IP abuse. This requires an inquiry into intent that is consistent with antitrust essentials and preserves legitimate patent claims.

Patent Dispute Identification In China:Harmony Between The Protection And Restraint, Dong Zhang

Dr. Dong Zhang

How to keep a balance between restraining patent abuse and weakening local intervention has been a global issue, especially in such developing countries as China, while meeting a serious challenge of intellectual property protection. This article argues that patent right is definitely a kind of property, which must remain fully within the reach of antitrust law and it is against regulating special independent provisions in the drafted Chinese antitrust law to emphasize unduly on IP abuse. This requires an inquiry into intent that is consistent with antitrust essentials and preserves legitimate patent claims.

Patent Dispute Identification In China: Harmony Between The Protection And Restraint, Dong Zhang

Dr. Dong Zhang

How to keep a balance between restraining patent abuse and weakening local intervention has been a global issue, especially in such developing countries as China, while meeting a serious challenge of intellectual property protection. This article argues that patent right is definitely a kind of property, which must remain fully within the reach of antitrust law and it is against regulating special independent provisions in the drafted Chinese antitrust law to emphasize unduly on IP abuse. This requires an inquiry into intent that is consistent with antitrust essentials and preserves legitimate patent claims.

Behavioral Economists At The Gate: Antitrust In The 21st Century, Maurice Stucke

Scholarly Works

Although tossed against the rocks elsewhere, the Law and Economics' rational choice theories, within the quiet waters of antitrust, stand largely unchallenged. Antitrust's economic theories, premised on 'rational' profit maximizing behavior, enjoy the deep slumber of a decided opinion. Although Post-Chicago School antitrust theories have developed, the Chicago School's rational choice theories still dominate. This article explores some possible paradoxes and anomalies with respect to antitrust's merger theories. It appears anecdotally that some corporate behavior is (or is not) occurring which is not readily explainable under the Chicago School's theories. It is an empirical question as to the degree the …

“Cultural Treatment” And “Most-Favoured-Culture” Principles To Promote Trade Related Cultural Diversity, Christophe Roy Germann

Christophe Roy Germann

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions approved by the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on 20 October 2005 entered into force on 18 March 2007. This paper focuses on the policy goal of “cultural diversity” for “international trade related cultural goods and services”, and on strategies and means to achieve this goal for countries that cannot afford substantial subsidies for these purposes. It proposes to explore and discuss an innovative legal approach beyond the new UNESCO Convention on cultural diversity in order to materialize cultural diversity …

Credit Card Interchange Fees: Three Decades Of Antitrust Uncertainty, Steven Semeraro

Steven Semeraro

This article re-examines the historical, economic, and legal analyses of credit card interchange fees, rejecting the standard assumptions that (1) collectively set interchange fees are unlikely to harm consumers and (2) these fees cannot feasibly be set in a competitive fashion. Through a new historical assessment and consideration of the most recent economic learning, this article shows that under current market conditions collusively set interchange fees are likely to harm consumers and thus violate the antitrust laws. In addition, a competitive remedy is feasible. The six largest Visa and MasterCard issuers, which are larger than the Discover Card System and …

Credit Card Interchange Fees: Three Decades Of Antitrust Uncertainty, Steven Semeraro

Steven Semeraro

This article re-examines the historical, economic, and legal analyses of credit card interchange fees, rejecting the standard assumptions that (1) collectively set interchange fees are unlikely to harm consumers and (2) these fees cannot feasibly be set in a competitive fashion. Through a new historical assessment and consideration of the most recent economic learning, this article shows that under current market conditions collusively set interchange fees are likely to harm consumers and thus violate the antitrust laws. In addition, a competitive remedy is feasible. The six largest Visa and MasterCard issuers, which are larger than the Discover Card System and …

The Antitrust Legacy Of Justice William O. Douglas And The Curse Of The Curse Of Bigness, C. Paul Rogers

C. Paul Rogers III

Justice William O. Douglas’s position as our leading antitrust hawk cannot be denied. He is also, of course, our longest sitting Supreme Court Justice. During his long tenure on the Court, he wrote more antitrust opinions than anyone in our history. Surprisingly, however, with all the scholarship on Douglas, including two full-length biographies, there exists no thorough or complete treatment of his lengthy and controversial antitrust record. This article seeks to fill that gap by critiquing Douglas’s antitrust opinions in the context of contemporary antitrust doctrine. It considers Douglas’s deep distrust of economic power, fueled in part by his legal …

Broadcasting The 2006 World Cup: The Right Of Arab Fans Versus Art Exclusivity, Bashar H. Malkawi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused …

Internet 3.0: Identifying Problems And Solutions To The Network Neutrality Debate , Robert M. Frieden

ExpressO

What Internet Service Providers (“ISPs”) can and cannot do to diversify services lies at the core of the debate over network neutrality. In prior generations ISPs had little incentive or technological capability to deviate from plain vanilla best efforts routing for content providers and from standard “all you can eat” subscription terms for consumer access to the World Wide Web. The next generation Internet has the technological capability and ISPs have the commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. …

Academic Testimony On Unilateral Conduct Before The U.S. Dept. Of Justice & Federal Trade Commission Hearings, Aaron S. Edlin

Aaron Edlin

No abstract provided.