Law Commons^™

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer

Joseph P. Bauer

Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. …

Developments In Section Two Of The Sherman Act, Joseph P. Bauer

Joseph P. Bauer

The issues raised in this Symposium are of great interest and timeliness. During the 1940s and 1950s, the Supreme Court explored the role of Section 2 of the Sherman Act as an essential element in the antitrust regime. As was true with antitrust generally, courts expanded the reach of Section 2, frequently concluding that the complained-of conduct constituted unlawful monopolization or attempts to monopolize, and approving injunctions forbidding the continuation of exclusionary or predatory practices and orders leading to the breakup of the monopoly itself. However, after the Grinnell decision in 1966, and the Otter Tail case almost a decade …

Per Se Illegality Of Concerted Refusals To Deal: A Rule Ripe For Reexamination, Joseph P. Bauer

Joseph P. Bauer

Section 1 of the Sherman Act proscribes [e]very contract, combination . . . or conspiracy, in restraint of trade. Early Supreme Court cases interpreting this provision held that it required a determination by the trier of fact of the reasonableness of the challenged conduct in each case — an approach which came to be known as the rule of reason. In subsequent cases, however, the Court has held that certain conduct is unreasonable per se. That is, once a court has determined that such conduct has taken place, it is foreclosed from undertaking an inquiry into the reasonableness of that …

Competition At The Teller's Window?: Altered Antitrust Standards For Banks And Other Financial Institutions, Joseph P. Bauer, Earl W. Kintner

Joseph P. Bauer

Congressional and judicial attitudes towards the banking industry have reflected two, sometimes conflicting, goals-the maintenance of the solvency of financial institutions to protect the interests of depositors, other creditors and the economy at large; and the promotion of competition among these institutions and in the economy. The advancement of these goals has been reflected in the application of the antitrust laws to the industry. For the most part, the Sherman and Clayton Acts apply with the same force and scope to financial institutions as to other industries. In some cases, however, the goal of institutional protection is favored, and the …

A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer

Joseph P. Bauer

Few types of antitrust conduct have received as much treatment from the Supreme Court as tying arrangements. This practice, which is unlawful per se when certain prerequisites are met, may be defined as an agreement by a party to sell one product [the tying product] but only on the condition that the buyer also purchases different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Notwithstanding this extensive Supreme Court attention, there is as much heat as light in this area. The doctrine that has developed is often unpredictable and frequently …

The Mpaa: A Script For An Antitrust Production, Ian G. Henry

West Virginia Law Review

No abstract provided.

Market Power In Power Markets: The Filed-Rate Doctrine And Competition In Electricity, Sandeep Vaheesan

University of Michigan Journal of Law Reform

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale electricity markets exist everywhere today. Independent power producers can construct generation facilities and sell their output to utilities and industrial customers through bilateral contracts. In many regions, centralized power markets now facilitate the sale of billions of dollars in electricity annually through auctions. Although market forces have replaced direct price regulation in electricity, antitrust enforcement has not expanded its role commensurately. A lack of competition has been a serious problem in …

A Response To Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods Of Competition, Maurice Stucke

Scholarly Works

Federal Trade Commissioner Joshua Wright recently proposed a new legal standard to evaluate “unfair methods of competition” under Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45(a) (2012).

This essay raises several concerns. First, Wright’s proposed legal standard does not go as far as Congress intended. Moreover it conflates unfair methods of competition with acts and practices that significantly harm consumer welfare. A second concern is that the proposed legal standard goes the other direction and permits conduct that is otherwise illegal under the Sherman and Clayton Acts. Third, the proposed standard reduces accuracy, is hard to administer …

From Microsoft To Google: Intellectual Property, High Technology, And The Reorientation Of U.S. Competition Policy And Practice, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Looking At The Monopsony In The Mirror, Maurice E. Stucke

College of Law Faculty Scholarship

Although still a distant second to monopoly, buyer power and monopsony are hot topics in the antitrust community. Despite the increasing interest in monopsony and buyer power, relatively few cases have actually been brought. Given the relatively few antitrust cases, the legal standards for monopsony claims are less developed than for monopoly claims. In recent years, courts, competition agencies, and scholars in addressing monopsony begin with a simple premise: monopsony is the mirror image of monopoly. But as this Article contends, courts and agencies should be careful when importing monopolization standards for monopsony cases. What works for monopolization claims may …

The Real Estate Brokerage Industry And Antitrust Implications, Lynn H. Mack, Valerie A. Moore

Pepperdine Law Review

No abstract provided.

Herschel Walker V. National Football League: A Hypothetical Lawsuit Challenging The Propriety Of The National Football League's Four-Or-Five Year Rule Under The Sherman Act, A. Randall Farnsworth

Pepperdine Law Review

No abstract provided.

Dr. Boulderlove; Or, How I Learned To Stop Worrying And Love Local Antitrust Liability , Kevin Charles Boyle

Pepperdine Law Review

Community Communications v. Boulder arose in the context of local cable registration, but the decision raised the specter of antitrust liability for nearly any local regulatory activity. This comment reviews state legislation enacted in response to Boulder against a framework of the post-Boulder "Parker Doctrine" and its probable requirements.

The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese

Faculty Publications

Transaction cost economics ("TCE") has radically altered industrial organization's explanation for so-called "non-standard contracts, "including "exclusionary" agreements that exclude rivals from access to inputs or customers. According to TCE, such integration usually reduces transaction costs without producing anticompetitive harm. TCE has accordingly exercised growing influence over antitrust doctrine, with courts invoking TCE's teachings to justify revision of some doctrines once hostile to such contracts. Still, old habits die hard, even for courts of increasing economic sophistication. This Article critiques one such habit, namely, courts'continuing claim that firms use market or monopoly power to impose exclusionary contracts on unwilling trading partners. …

The Federal Antitrust Implications Of Local Rent Control: A Plaintiff's Primer, Steven G. Churchwell

Pepperdine Law Review

The proliferation of rent control laws in many California cities has led to a furious debate concerning its legal, economic, and social consequences. Leading scholars believe that rent control only exacerbates existing housing shortages and excludes the poor, the minority and the elderly from scarce rental housing. This article sets forth the proposition that the fixing of rent ceilings by a local government violates the federal antitrust laws and can be invalidated in federal court.

Reasoning Per Se And Horizontal Price Fixing: An Emerging Trend In Antitrust Litigation?, Joseph W. Defuria Jr.

Pepperdine Law Review

No abstract provided.

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Pepperdine Law Review

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese

Faculty Publications

The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …

Accommodating Labor And Antitrust, Stephen F. Ross

Journal Articles

In this article, the author comments on Professor Michael LeRoy's article "Federal Jurisdiction in Sports Labor Disputes" (2012 Utah L. Rev. 815) and explains why he disagrees with the claim that federal courts improperly invoke the Sherman Act in sports labor disputes.

Antitrust Law And Economic Theory: Finding A Balance, Edward D. Cavanagh

Faculty Publications

Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided guidance with respect to antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate, and less predictable.

This Article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases, but …

"The Magna Carta Of Free Enterprise" Really?" , Daniel A. Crane

Articles

In U.S. v. Topco Associates, Inc., Justice Thurgood Marshall announced that "[a] ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.", In The Antitrust Constitution, Thomas Nachbar takes seriously the idea that federal antitrust laws serve a constitutional function. He argues that, contrary to common assumptions, the antitrust laws cannot be understood merely as a form of economic utilitarianism. Rather, they serve the additional purpose of preventing "regulatory harm," the assertion of law-like control over the conduct of others outside the sphere of one's own property interests.

Bargaining Over Loyalty, Daniel A. Crane

Articles

Contracts between suppliers and customers frequently contain provisions rewarding the customer for exhibiting loyalty to the seller. For example, suppliers may offer customers preferential pricing for buying a specified percentage of their requirements from the supplier or buying minimum numbers of products across multiple product lines. Such loyalty-inducing contracts have come under attack on antitrust grounds because of their potential to foreclose competitors or soften competition by enabling tacit collusion among suppliers. This Article defends loyalty inducement as a commercial practice. Although it can be anticompetitive under some circumstances, rewarding loyal customers is usually procompetitive and price reducing. The two …

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Faculty Scholarship

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Guiding Section 5: Comments On The Commissioners, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

FTC Commissioners Joshua Wright and Maureen Ohlhausen have proposed that the Commission adopt Guidelines for the application of Section 5 to Unfair Methods of Competition. This short note comments on the role of Section 5 distinct from the Sherman Act. It suggests that Section 5 be used to attack and deter certain conduct that falls into gaps of the Sherman Act. This includes exclusionary unilateral conduct that likely leads to the achievement, enhancement, or maintenance of market power (as opposed to monopoly power). It also includes unilateral conduct such as invitations to collude and other practices that facilitate conscious …

Section 5 And The Innovation Curve, Daniel A. Crane

Book Chapters

the ftc’s authority to use Section 5 of the FTC Act to reach anticompetitive conduct that would not be illegal under the Sherman or Clayton Acts has been much discussed in recent years, particularly in conjunction with the FTC’s enforcement action against Intel. As of this writing, a Section 5 action against Google seems imminent.

Looking At The Monopsony In The Mirror, Maurice Stucke

Scholarly Works

Although still a distant second to monopoly, buyer power and monopsony are hot topics in the antitrust community. Despite the increasing interest in monopsony and buyer power, relatively few cases have actually been brought. Given the relatively few antitrust cases, the legal standards for monopsony claims are less developed than for monopoly claims. In recent years, courts, competition agencies, and scholars in addressing monopsony begin with a simple premise: monopsony is the mirror image of monopoly. But as this Article contends, courts and agencies should be careful when importing monopolization standards for monopsony cases. What works for monopolization claims may …