Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 3 of 3

Full-Text Articles in Law

The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp Jan 2010

The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The FTC has explicit antitrust authority to enforce the Clayton Act, although not the Sherman Act. More than a half century ago, however, the Supreme Court held that the FTC Act’s prohibition of “unfair methods of competition” reaches everything the Sherman Act reaches and also a “penumbra” of practices that are not technical Sherman Act violations. That view, which had fallen into disuse in recent decades, is now being revived.

This essay defends a limited version of that “penumbra” view and suggests several applications. First, while both Sherman Act provisions are open ended in their coverage, they have limitations ...


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 ...


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 ...