Law Commons^™

Controlling Buyer And Seller Power: Reviving Enforcement Of The Robinson-Patman Act, Daniel A. Hanley

Hofstra Law Review

The Robinson-Patman Act (“RPA”) is a federal law enacted in 1936. Congress’s goal in drafting this historic legislation was to protect and promote democracy and individual liberty in the United States by supporting the creation and vitality of small and independent businesses, thereby distributing power and opportunity within the U.S. political economy.This Article provides a robust defense of Congress’s goals and intentions in enacting the RPA as well as a detailed history of how the Act benefited American society when it was vigorously enforced. It concludes with thoughts on how the RPA can be used to revitalize today’s economy, thus …

Privacy’S Commodification And The Limits Of Antitrust, Jeffrey L. Vagle

Arkansas Law Review

This Article argues that the buying and selling of personal data forms what Debra Satz calls a “noxious market,” and, thus, any regulation of information privacy should not accept or depend upon its commodification but should stand on its own. This Article proceeds in three parts. Part I first lays out the history and effects of data commodification, arguing that the market created by this commodification is noxious and undesirable. Part II examines the renewal of antitrust’s purpose as a regulatory tool, especially in the context of its use in the regulation of large technology firms. Finally, Part III argues …

Why The Protect Working Musicians Act's Proposed Antitrust Exemption Needs To Be Enacted, Olivia Finlayson

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

Recommendations To Update The Ftc & Doj’S Guidelines For Collaborations Among Competitors, Cynthia Hanawalt, Denise Hearn, Chloe Field

Sabin Center for Climate Change Law

Existing joint agency guidance from the FTC and DOJ, “Antitrust Guidelines for Collaborations Among Competitors” was written in 2000 and is misaligned with the agencies’ focus on market power considerations and protecting the competitive process. This white paper seeks to provide a rationale and suggestions for revising the collaboration guidelines. We look to examples in other jurisdictions, with an eye to their treatment of sustainability-related collaborations, as many were updated with these considerations in mind. Importantly, we do not recommend that updated guidelines follow international examples in creating explicit sustainability-related carve outs, safe harbors, or exemptions. Due to the complex …

Downstreaming, Rachel Landy

Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Getting Merger Guidelines Right, Keith N. Hylton

Faculty Scholarship

This paper is on the new Merger Guidelines. It makes several arguments. First, that the Guidelines should be understood as existing in a political equilibrium. Second, that the new structural presumption of the Merger Guidelines (HHI = 1,800) is too strict, and that an economically reasonable revision in the structural presumption would have increased rather than decreased the threshold. Whereas the new Guidelines lowers the threshold to HHI 1,800 from HHI 2,500, an economically reasonable revision would have increased the threshold to HHI 3,200. I justify this argument using a bare-bones model of Cournot competition. Third, it seems unlikely, …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Georgia Law Review

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Certificates Of Public Advantage: A Valuable Tool Or Diminishing Allure?, Abdur Rahman Amin

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

When Can An Agreement On Environmental Policies Comply With U.S. Antitrust Laws?, Nathan Mendelsohn

Emory Corporate Governance and Accountability Review

No abstract provided.

Federal Enforcers Signal Heightened Scrutiny Of Algorithm Use To Inform Pricing Decisions, Lohr A. Beck, Carley H. Thompson

Emory Corporate Governance and Accountability Review

No abstract provided.

False Analogies To Predatory Pricing, Christopher R. Leslie

University of Pennsylvania Law Review

Philosophers and policymakers have long cautioned against comparing incomparable objects or concepts. Scores of judicial opinions caution judges and litigants against comparing apples to oranges. The original idiom, as recited by such sixteenth-century luminaries as Sir Thomas More and William Shakespeare, admonished against equating apples and oysters,4 two items unlikely to be mistaken for each other given their obvious dissimilarities in color, texture, smell, and immediate edibility. Over time, oysters were replaced by oranges and the expression evolved to caution against confusing two types of fruit, which do in fact share some similar qualities but are quite distinct and, thus, …

Innovation Misunderstood, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced.

In this paper, we reflect on the D.C. Circuit’s 2023 ruling in N.Y. v Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …