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Full-Text Articles in Law

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp Dec 2010

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek ...


The New Financial Deal: Understanding The Dodd-Frank Act And Its (Unintended) Consequences, David A. Skeel Jr. Oct 2010

The New Financial Deal: Understanding The Dodd-Frank Act And Its (Unintended) Consequences, David A. Skeel Jr.

Faculty Scholarship at Penn Law

Contrary to rumors that the Dodd-Frank Act is an incoherent mess, its 2,319 pages have two very clear objectives: limiting the risk of the shadow banking system by more carefully regulating derivatives and large financial institutions; and limiting the damage caused by a financial institution’s failure. The new legislation also has a theme: government partnership with the largest Wall Street banks. The vision emerged almost by accident from the Bear Stearns and AIG bailouts of 2008 and the commandeering of the bankruptcy process to rescue Chrysler and GM in 2009. Its implications for derivatives regulation could prove beneficial ...


The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp Feb 2010

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that ...


Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese Feb 2010

Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese

Faculty Scholarship at Penn Law

No abstract provided.


The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp Jan 2010

The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The 1945 McCarran-Ferguson Act provides that federal legislation generally, including the antitrust laws, is “applicable to the business of insurance [only] to the extent that such business is not regulated by State law.” The statute was enacted after United States v. South Eastern Underwriters Assn. (1944), held that insurance transactions were “interstate commerce” and thus subject to the antitrust laws. That case had in turn undermined the traditional view expressed in Paul v. Virginia (1868), that insurance was not interstate commerce, but strictly local transactions. The South Eastern case followed in turn upon the Supreme Court's decision in Wickard ...


Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman Jan 2010

Oil And Water: Mixing Individual Mandates, Fragmented Markets, And Health Reform, Allison K. Hoffman

Faculty Scholarship at Penn Law

With momentum toward national health reform, there is wide support for legislation to include an individual mandate that would require all Americans to carry health insurance. Discussion of the individual mandate has relied largely on whether the mandate will generate universal coverage as a gauge for success. This article challenges the notion that an individual mandate is successful if it leads to universal coverage, revealing a critical problem the individual mandate will face even if all Americans were to have health insurance. To uncover this problem, this article sets out a novel framework that disentangles the three different policy objectives ...


Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp Jan 2010

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier ...


Tying Arrangements And Antitrust Harm, Erik Hovenkamp, Herbert J. Hovenkamp Jan 2010

Tying Arrangements And Antitrust Harm, Erik Hovenkamp, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary the amount of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires the purchase of varying numbers of printer cartridges from the same manufacturer.

Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial. Tying has been attacked on the theory that price discrimination of this sort reduces consumer welfare. We ...


Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels Jan 2010

Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels

Faculty Scholarship at Penn Law

Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any ...


The Case Against Shareholder Empowerment, William W. Bratton, Michael L. Wachter Jan 2010

The Case Against Shareholder Empowerment, William W. Bratton, Michael L. Wachter

Faculty Scholarship at Penn Law

No abstract provided.


Opportunities And Challenges For Gender-Based Legal Reform In China, Rangita De Silva De Alwis Jan 2010

Opportunities And Challenges For Gender-Based Legal Reform In China, Rangita De Silva De Alwis

Faculty Scholarship at Penn Law

No abstract provided.


The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp Jan 2010

The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

During the administration of President George W. Bush, the Antitrust Division was not enthusiastic about use of §2 of the Sherman Act to pursue anticompetitive single-firm conduct. Indeed, its most prominent contribution on the issue was the Antitrust Division’s §2 Report, which the Obama Antitrust Division withdrew only eight months after it was issued.This withdrawal was entirely in keeping with candidate Obama’s repeated promises to reinvigorate antitrust enforcement.

This essay analyzes the current state of antitrust and makes recommendations concerning structures and practices where increased §2 enforcement is warranted and those where it is not. Wise use ...