Law Commons^™

About-Face: How Facebook’S Restrictions On User Posts Could Violate Antitrust Law, Efrem Berk

Northwestern Journal of Technology and Intellectual Property

This Note examines whether Facebook’s restrictions on its users’ posts are subject to Sherman Act § 2. This Note looks at the economic activity generated by social media activity and argues that posts are commerce. While this piece finds that current antitrust jurisprudence likely favors Facebook, an alternative approach sought by some antitrust scholars could influence judges to preclude the platform’s restrictions.

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

The Probative Synergy Of Plus Factors In Price-Fixing Litigation, Christopher R. Leslie

Northwestern University Law Review

Private plaintiffs alleging that defendants conspired to fix prices in violation of antitrust law must usually prove their claims through circumstantial evidence, generally in the form of “plus factors”—evidence indicating that the defendants’ parallel conduct was caused by collusion, not by independent decision-making. Supreme Court precedent requires fact finders to examine antitrust plaintiffs’ evidence holistically. With increasing frequency, however, federal courts in price-fixing cases improperly isolate each piece of circumstantial evidence presented by the plaintiff and then deprive it of all probative value because that single piece of evidence is insufficient, standing alone, to prove a price-fixing conspiracy. As a …

Ftc V. Phoebe Putney And Municipalities As Nongovernments, Peter F. Nascenzi

Northwestern University Law Review

American courts have long struggled with categorizing municipalities. They treat municipalities sometimes as private corporations, sometimes as governmental bodies, and sometimes as something in between. This uncertainty provides a shaky foundation for local government law and hampers its development. Local governments are not sure of their powers, and states are unable to create a comprehensive vision of municipal governance. When federal law is involved, the situation is muddled further.

In FTC v. Phoebe Putney, the Supreme Court’s application of the state action doctrine unnecessarily injected federal antitrust law into the relationship between states and municipalities. The state action doctrine …

Antitrust Arbitration And Merger Approval, Mark A. Lemley, Christopher R. Leslie

Northwestern University Law Review

In a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum.

Arbitration differs from litigation in ways that harm the interests of consumer antitrust plaintiffs. For example, arbitration limits discovery and has no meaningful appeals process. Furthermore, defendants use the terms in arbitration clauses to prevent class actions and to undercut the pro-plaintiff features of antitrust law, including mandatory treble damages, meaningful injunctive relief, recovery of attorneys’ fees, and a …

How Not To Apply Actavis, Michael A. Carrier

NULR Online

No abstract provided.

"Perfectly Properly Triable" In The United States: Is Extradition A Real And Significant Threat To Foreign Antitrust Offenders?, Daseul Kim

Northwestern Journal of International Law & Business

Seeking extradition of foreign officers in charge of foreign corporations for trial in the United States is one of the latest policies that the U.S. Department of Justice ("DOJ") has adopted to enforce U.S. antitrust laws internationally. As a result, the world has become a much riskier place for foreign officers and executives, who, in the past, could practically ignore U.S. antitrust laws and still hide safely behind the protection of their own countries' borders. The DOJ expects this "real and significant" threat of extradition to incentivize foreign corporate officers to comply with U.S. antitrust laws by altering their conduct, …

Legal Turbulence After : New Possibilities For Patent Licensing At Research Institutions, Jonathan Hillel

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Illinois Tool Works: Allocating The Burden Of Proving Market Power In Patent Tying Cases, Dennis J. Abdelnour

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

E.U. Competition And Private Actions For Damages, The Symposium On European Competition Law , Georg Berrisch, Eve Jordan, Rocio Salvador Roldan

Northwestern Journal of International Law & Business

There are numerous reasons why private enforcement of E.U. competition law remains underdeveloped in Europe. The main reason is perhaps that it is not regulated by E.U. law but by Member State law. This in itself creates legal uncertainty. A system that creates optimal conditions for individuals to challenge infringements of competition rules before national courts ensures a high level of compliance. It is therefore no surprise that the European Commission ("Commission") is keen to see the general use of private enforcement, and in particular of actions for damages, in Europe increase. This paper focuses on one particular aspect of …

Emerging Wto Competition Jurisprudence And Its Possibilities For Future Development , Alberto Alvarez-Jimenez

Northwestern Journal of International Law & Business

A new competition jurisprudence is emerging within the World Trade Organization ("WTO") and its Dispute Settlement Body ("DSB"). WTO competition jurisprudence comprises all WTO Panel and Appellate Body rulings in cases where what is debated is the existence of a private anti-competitive behavior, the absence of the private competitive conduct that WTO law orders, or certain subject matters that fall within the traditional scope of domestic antitrust legislation, regardless of whether or not the decision provides a WTO solution. Part II of this article presents the WTO self-restraint approach regarding competition and trade before the new millennium, as set out …

Can U.S. Antitrust Laws Open International Markets?, Spencer Weber Waller

Northwestern Journal of International Law & Business

The vigorous and non-discriminatory enforcement of antitrust law can contribute to promoting an international marketplace characterized by an open competitive process. However, antitrust law is, at best, a supporting player in constructing a liberal multilateral trading order, and is incapable of promoting any single country's exports. This article suggests a small, but important, role for United States antitrust law in promoting that competitive marketplace in conjunction with a developing wave of competition law around the globe.

Restrictive Trade Practices And The Extraterritorial Application Of U.S. Antitrust And Trade Legislation, Mark A.A. Warner

Northwestern Journal of International Law & Business

The Japan-U.S. economic relationship has been marked by tremendous friction and misunderstanding. These tensions have given rise in the past to the extraterritorial application of U.S. trade and antitrust laws to perceived public and private restrictive trade practices. In this paper, I will review the U.S. approach to the extraterritorial application of trade and antitrust laws, particularly as they apply to Japan. I will conclude that although formal coercion has given way to more bilateral negotiations, demands will grow for a return to the more aggressive U.S. posture of the past unless meaningful and effective market access is achieved. I …

Trading Secrets--The International Antitrust Enforcement Assistance Act, Laraine L. Laudati, Todd J. Friedbacher

Northwestern Journal of International Law & Business

This article will explore the terms of the IAEAA, questioning in particular whether the Act provides a viable mechanism for information exchange, as well as whether it embodies a true commitment to argued to the European Court of Justice that the Agreement should have been concluded by the European Council rather than the European Commission. French Republic v. Commission of the European Communities, Case C-327/91 (1994).

Through A Glass Darkly: The Case Against Pilkington Plc. Under The New U.S. Department Of Justice International Enforcement Policy, Jeffrey N. Neuman

Northwestern Journal of International Law & Business

An inquiry into subject matter jurisdiction under the 1995 Guidelines and in U.S. v. Pilkington, plc. requires a brief examination of the history of extraterritorial enforcement policy since the mid-1970s. This is set forth in section II. Next, in section III, the comment analyzes the ebb and flow of judicial approaches to U.S. antitrust subject matter jurisdiction, focusing on the pre- and post-FTAIA eras. Section IV looks specifically at the 1995 Guideline and the Justice Department's grounds for asserting U.S. subject matter jurisdiction against Pilkington. In doing so, the comment suggests that in an interdependent global economy, an aggressive jurisdictional …

Merger Control In The European Community: The Ec Regulation "On The Control Of Concentrations Between Undertakings" And Implementing Guidelines, Terence P. Stewart, Delphine A. Abellard

Northwestern Journal of International Law & Business

The European Community (EC) is currently adopting comprehensive new legislation within the framework of its internal market program, which is expected to transform the way business is conducted in the EC. By December 1992, the Community should be well on its way to becoming an integrated economy, with about 320 million consumers. Not surprisingly, the number of mergers and acquisitions in the EC across national boundaries is increasing in response to the prospects of a larger consumer base and greater market opportunities. The new EC Regulation "On the Control of Concentrations Between Undertakings" is one element of the EC's ambitious …

Guidelines For Mergers And Acquisitions In France, David J. Berger

Northwestern Journal of International Law & Business

Recent developments in France, including the opening of French markets and the privatization of many of the companies nationalized in the early 1980s, have made France one of the leading countries for investment by American companies seeking to enter Europe prior to the unified European market in 1992. France's liberalization of foreign investment rules, as well as its lifting of foreign exchange controls, have further helped make French companies among the most attractive for both American and European investors.

Canada-United States Memorandum Of Understanding Regarding Application Of National Antitrust Law: New Guidelines For Resolution Of Multinational Antitrust Enforcement Disputes , Gary E. Dyal

Northwestern Journal of International Law & Business

This Comment will first examine the fundamental policy differences and opposing perspectives underlying the conflict between Canada and the United States regarding extraterritorial antitrust enforcement. Par- ticular conflict areas will then be discussed. Second, this Comment will explore the reasons underlying the failure of the Fulton-Rogers Under- standing to prevent instances of serious disagreement concerning particu- lar antitrust enforcement measures taken by the United States during the 1970's. Third, this Comment will analyze the 1984 Understanding, fo- cusing on its departure from the weaknesses of the Fulton-Rogers Under- standing, its specific provisions addressing concerns within the major categories of previous …

Exports, Banking And Antitrust: The Export Trading Company Act - A Modest Tool For Export Promotion, George E. Garvey

Northwestern Journal of International Law & Business

There is an almost universally held perceptoin that expanded export trade is essential to a robust United States economy. President Carter, for example, stated in a report to Congress that export expansion is critical to the health of our economy. Huge balance of payments deficits in recent years, the increasingly successfuly and visible penetration of United States markets by foreign producers, and substantial unemployment in basic industry have all fuedl this concern. These conditions have led naturally to a two-pronged response by the public and members of Congress: first, the call for greater protection against foreign competition; and second, a …

A Standard Of Reason In Eec Antitrust Law: Some Comments On The Application Of Parts 1 And 3 Of Article 85, Ben Van Houtte

Northwestern Journal of International Law & Business

In this article, Mr. Van Houtte outlines the basic provisions for antitrust enforcement in the European Economic Community, and comments on the current standards utilized by the European Commission in application of these laws. He advocates movement toward a more equalized balance of the theory behind the antitrust laws and adequate enforcement of those provisions. To achieve that balance, Mr. Van Houtte favors the use of a "standard of reason" in Article 85(1) cases, and increased emphasis on the public interest in analyses performed under Article 85(3).

Comity And Computers In The Common Market: The Ibm Case, Terrance L. Bessey

Northwestern Journal of International Law & Business

This note will surey the law of the Community and its member states, United States law, and international law. The factual aspects of the EEC case against IBM which highlight the tensions underlying the comity question in international antitrust will also be explored. Before turning to these issues, however, the historical and theoretical context of the comity question in international antitrust will be examined.

National Panasonic (U.K.) Ltd. V. Commission Of The European Communities: The Common Market's First Look At Warrantless Searches In Antitrust Investigations, Catherine C. Gale

Northwestern Journal of International Law & Business

In Antitrust Investigations National Panasonic (UK) Ltd v. Commission of the European Communities' is the first decision of the European Court of Justice delineating the powers of the European Commission to conduct evidentiary searches on the premises of firms suspected of violating the European Economic Community's antitrust laws. The Court held that the Commission may conduct on-the-spot searches of firms without prior notification. The Court's decision greatly expands the investigatory powers of the Commission at the expense of significant privacy and due process rights for firms operating within the European Community. This note will examine the extent to which the …

The Relationship Between National And Community Antitrust Law: An Overview After The Perfume Cases, Jean-Francois Verstrynge

Northwestern Journal of International Law & Business

The European Coal and Steel Community Treaty and the Treaty of Rome have been recognized as transferring the jurisdictional authority to apply antitrust laws to the European Communities. After surveying the impact of these treaties on various sectors, the author argues that it is necessary to subordinate the jurisdictional authority of the Member States in this field to fulfill the objectives of the Common Market.

The Rise And Fall Of Provisional Validity -- The Need For A Rule Of Reason In Eec Antitrust, Valentine Korah

Northwestern Journal of International Law & Business

The doctrine of provisional validity invented by the Community Court now applies to very few agreements. Mrs. Korah believes that unless a rule of reason is applied to restraints ancillary to agreements that lead to new competitive pressures, the risk of collaboration may become excessive. Mrs. Korah also expresses concern that this may reduce the dynamism of Community industry in competition with American and Japanese firms.

The Protection Of Trading Interests Act Of 1980: Britian's Response To U.S. Extraterritorial Antitrust Enforcement, Tina J. Kahn

Northwestern Journal of International Law & Business

The extraterritorial enforcement of U.S. antitrust laws has long generated discontent between the United States and several European nations.1 While not alone in attributing extraterritorial jurisdiction to its antitrust laws, the United States is among the minority in this re- gard,2 joined only by the European Economic Community,3 Austria,4 and the Federal Republic of Germany.

International Application Of American Antitrust Laws: Issues And Proposals, James A. Rahl

Northwestern Journal of International Law & Business

American antitrust policy in foreign commerce is once again under the pressure of complaints from at home and abroad.' It may seem anomalous that laws intended to protect competition are charged with impairing American "competitiveness," but that is the contention heard in Congress and in business quarters.2 Meanwhile, some foreign nations, including a few who have recently enacted new antitrust laws of their own, complain that our antitrust laws are too aggressive.3 Given the large amount of current discussion and the number of different proposals in Congress, careful study of the issues and of possi- ble solutions is certainly indicated.

Competition, Trade, And The Antitrust Division: 1981, Joel Davidow

Northwestern Journal of International Law & Business

One of the primary purposes-some would say the primary pur- pose--of antitrust laws is to promote efficient allocation of resources and maximum consumer choice by preventing and punishing artificial barriers to competition and unreasonable restraints of trade.' The An- titrust Division of the U.S. Department of Justice has therefore con- cerned itself with the task of breaking down those barriers. In the domestic field, this policy has traditionally taken the form of prosecut- ing persons and corporations who engage in price fixing or market divi- sion, or who obtain or maintain monopoly power by means of abusive practices. More recently, …

Symposium: Transnational Issues In American Antitrust Law

Northwestern Journal of International Law & Business

On September 30, 1980, the United States Senate passed a bill that would establish a commission to study the international application of American antitrust laws.' The creation of this commission was prompted in part by the popular belief that the current application of U.S. antitrust laws impedes vigorous American export activity to the detriment of our competitive standing in world markets.2 On the other hand, several foreign nations, angered by extraterritorial application of U.S. laws, have recently enacted statutes that inhibit the ability of anti- trust plaintiffs in the United States to obtain discovery and to collect judgments. In this …

The Need For A Thoughtful Assessment Of The Application Of U.S. Antitrust Law To International Transactions, Mark R. Joelson

Northwestern Journal of International Law & Business

It is commonly said that the United States antitrust laws are a cor- nerstone of our free enterprise system and our economic philosophy. It is another truism--one of more recent origin-that the most significant markets and arenas of competition today are the international ones. The daily business news bears out this conclusion. Yet one must also conclude that the relationship between these two indispensable features of our economic life-antitrust laws and international trade-is a troubled one which provides ample material for confusion, dispute and law review comment. Moreover, the debate over the application of United States antitrust law to international …

What Should Be The Agenda Of A Presidential Commission To Study The International Application Of U.S. Antitrust Law, Douglas E. Rosenthal

Northwestern Journal of International Law & Business

If the proposed Presidential Commission to study the Interna- tional Application of the U.S. Antitrust Law (Commission)' is to com- plete its work within the one year period contemplated and is to achieve more than a superficial gloss of a large and complex area, I believe it will be necessary for the Commission to concentrate its atten- tion on the conflicts between the four important goals of foreign eco- nomic policy.