Law Commons^™

Introduction Of Competition And Environmental Regulation In The Electricity Sector In Hong Kong, Thomas K. Cheng

Thomas K. Cheng

This article explores both the competition and the environmental aspects of the electricity sector in Hong Kong, and a possible linkage between them.There has been considerable public pressure to liberalize the electricity sector in Hong Kong due to longstanding discontent with the persistently high profit of the sector and a regulatory structure that is widely perceived to be ineffective. In light of the government’s seeming reluctance to pursue liberalization, this article examines an alternative approach – litigation under the recently adopted Competition Ordinance. It assesses the likelihood of success of the strategy and its potential shortfalls. The article proceeds to …

Market Power Without Market Definition, Daniel A. Crane

Articles

Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …

Competition Policy And Comparative Corporate Governance Of State-Owned Enterprises, D. Daniel Sokol

D. Daniel Sokol

The legal origins literature overlooks a key area of corporate governance-the governance of state-owned enterprises ("SOEs"). There are key theoretical differences between SOEs and publicly-traded corporations. In comparing the differences of both internal and external controls of SOEs, none of the existing legal origins allow for effective corporate governance monitoring. Because of the difficulties of undertaking a cross-country quantitative review of the governance of SOEs, this Article examines, through a series of case studies, SOE governance issues among postal providers. The examination of postal firms supports the larger theoretical claim about the weaknesses of SOE governance across legal origins. In …

Antitrust Merger Efficiencies In The Shadow Of The Law, D. Daniel Sokol, James A. Fishkin

D. Daniel Sokol

This Essay provides an overview of U.S. antitrust merger practice in addressing efficiencies both in terms of actual practice before the agencies and in scholarly work as a response to Jamie Henikoff Moffitt's Vanderbilt Law Review article Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis. Moffitt’s analysis could have benefited from a more thorough discussion of the Department of Justice and Federal Trade Commission’s (collectively, the “agencies”) analysis of efficiencies during investigations and the broader process of negotiations involving mergers. For instance, the article does not discuss the empirical work addressing when the agencies …

Antitrust, Institutions, And Merger Control, D. Daniel Sokol

D. Daniel Sokol

This Article makes two primary contributions to the antitrust literature. First, it identifies the dynamic interrelationship across antitrust institutions. Second, it provides new empirical evidence from practitioner surveys to explore how the dynamic institutional interrelationship plays out in the area of merger control. This Article provides a descriptive, analytical overview of the various institutions to better frame the larger institutional interrelations for a comparative institutional analysis. In the next Part it examines mergers as a case study of how one might apply antitrust institutional analysis across these different kinds and levels of antitrust institutions. The Article utilizes both quantitative and …

Resolving Competition Related Disputes Under The Aml: Theory & Practice, Susan Beth Farmer

Presentations

This presentation was given at the European China Law Studies 2014 Conference, Making, Enforcing and Accessing the Law, in Hong Kong. The presentation addresses the Chinese Anti-Monopoly Law (AML), the MOFCOMM, NDRC, and SAIC, and litigation before the Supreme People's Court.

E-Books, Collusion, And Antitrust Policy: Protecting A Dominant Firm At The Cost Of Innovation, Nicholas Timchalk

Seattle University Law Review

Amazon’s main rival, Apple, went to great lengths and took major risks to enter the e-book market. Why did Apple simply choose not to compete on the merits of its product and brand equity (the iPad and iBookstore) as it does with its other products? Why did Apple decide not to continue to rely on its earlier success of situating its products differently in the market than other electronics and working hard to be different and cutting-edge with its e-book delivery? This Note argues that the combination of Amazon’s 90% market share, network externalities, and an innovative technology market creates …

A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi

Seattle University Law Review

The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …

The Appropriate Legal Standard And Sufficient Economic Evidence For Exclusive Dealing Under Section 2: The Ftc’S Mcwane Case, Steven C. Salop, Sharis A. Pozen, John R. Seward

Georgetown Law Faculty Publications and Other Works

The FTC recently found McWane, Inc. liable for unlawful monopoly maintenance by a 3-1 majority. The dispute among the FTC Commissioners raises important and interesting issues regarding the law and economics of exclusive dealing and the proper evaluation of the competitive effects of exclusionary conduct. Commissioner Wright’s Dissent proposes and utilizes a new legal standard that requires the plaintiff to show “clear evidence” of harm to competition before shifting the burden to the defendant to show procompetitive efficiency benefits. This burden of proof and production on the plaintiff is much higher than showing “probable effect” based on a preponderance of …

Tesla And The Car Dealers' Lobby, Daniel A. Crane

Articles

Tesla Motors, the offspring of entrepreneur Elon Musk (who brought us Pay-Pal and SpaceX), is the most exciting automotive development in many decades and a marquee story of American technological dynamism and innovation. The company’s luxury electric cars have caused a sensation in the auto industry, including a review by Consumer Reports calling Tesla’s Model S the best car it ever tested. Despite the acclaim, Tesla faces enormous challenges Despite the acclaim, Tesla faces enormous challenges in penetrating an automotive market that has been dominated for a century by internal combustion engines. Not only must it build cars that customers …

Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff

Michigan Telecommunications & Technology Law Review

“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …

Worse Than The Tower Of Babel? Remedying Antitrust’S False Dichotomy Through De Novo Appellate Review, Steven Semeraro

William & Mary Business Law Review

Modern antitrust analysis rests on a strange perch. Its paradigmatic method—pretentiously entitled the Rule of Reason—appears (but only appears) to be a dichotomous analytic. At the first stage, a court supposedly defines the relevant market and determines, as a matter of fact, whether marketplace forces constrain the defendant from profitably raising price above the level that would prevail in a competitive market. Only when market forces are inadequate to protect consumers, that is, the defendant has market power, does the court proceed to stage two, at which it assesses, as a matter of law, whether the defendant used its power …

Merger Policy And The 2010 Merger Guidelines, Herbert J. Hovenkamp

All Faculty Scholarship

New Horizontal Merger Guidelines were issued jointly by the Antitrust Division and the Federal Trade Commission in August, 2010, replacing Guidelines issued in 1992 that no longer reflected either the law or government enforcement policy. The new Guidelines are a striking improvement. They are less technocratic, accommodating a greater and more realistic variety of theories about why mergers of competitors can be anticompetitive and, accordingly, a greater variety of methodologies for assessing them.

The unifying theme of the Horizontal Merger Guidelines is to prevent the enhancement of market power that might result from mergers. The 2010 Guidelines state that “[a] …

Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform, Anne Mcginnis

University of Michigan Journal of Law Reform

Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid …

Barreras A La Competencia Y Libre Concurrencia E Insumos Esenciales, Carlos Mena-Labarthe

Carlos Mena-Labarthe

En la Constitución Mexicana y la Ley Federal de Competencia Económica se establecen facultades para que la autoridad de competencia elimine barreras y regule insumos.

Las investigaciones de mercado son una herramienta adicional que permite obtener una perspectiva integral de los mercados para la corrección de fallas conductuales y estructurales.

Se trata de un procedimiento muy riguroso con plazos establecidos para su ejecución.

Las investigaciones de mercado han resultado exitosas en otras jurisdicciones con una sólida tradición en competencia económica.

Apple And Amazon’S Antitrust Antics: Two Wrongs Don’T Make A Right, But Maybe They Should, Kerry Gutknecht

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Possible Paradigm Shifts In Broadband Policy, Christopher S. Yoo

All Faculty Scholarship

Debates over Internet policy tend to be framed by the way the Internet existed in the mid-1990s, when the Internet first became a mass-market phenomenon. At the risk of oversimplifying, the Internet was initially used by academics and tech-savvy early adopters to send email and browse the web over a personal computer connected to a telephone line via networks interconnected through in a limited way. Since then, the Internet has become much larger and more diverse in terms of users, applications, technologies, and business relationships. More recently, Internet growth has begun to slow both in terms of the number of …

Consumer Welfare In Competition And Intellectual Property Law, Herbert J. Hovenkamp

All Faculty Scholarship

Whether antitrust policy should pursue a goal of "general welfare" or "consumer welfare" has been debated for decades. The academic debate is much more varied than the case law, however, which has consistently adopted consumer welfare as a goal, almost never condemning a practice found to produce an actual output reduction or price increase simply because productive efficiency gains accruing to producers exceeded consumer losses.

While some practices such as mergers might produce greater gains in productive efficiency than losses in consumer welfare, identifying such situations would be extraordinarily difficult. First, these efficiencies would have to be "transaction specific," meaning …

Understanding Behavioral Antitrust, Avishalom Tor

Journal Articles

Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, …

Intellectual Property Experimentalism By Way Of Competition Law, Tim Wu

Faculty Scholarship

Competition law and Intellectual Property have divergent intellectual cultures – the former more pragmatic and experimentalist; the latter influenced by natural law and vested rights. The US Supreme Court decision in Federal Trade Commission v. Actavis is an intellectual victory for the former approach, one that suggests that antitrust law can and should be used to introduce greater scrutiny of the specific consequences of intellectual property grants.

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

Articles

The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments. …

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

Articles

The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …