Law Commons^™

Reviving An Epithet: A New Way Forward For The Essential Facilities Doctrine, Sandeep Vaheesan

Sandeep Vaheesan

For sound economic reasons, the antitrust laws, in general, do not require firms to share their assets with rivals. When a particular asset has natural monopoly characteristics and is used as an input in other markets, however, the essential facilities doctrine requires that the asset be shared with firms in related markets. In recent decades, the Supreme Court and leading scholars have criticized the doctrine, claiming it is economically inefficient and taxes the institutional capacity of the judiciary.

Historically, the courts most often applied the doctrine to tangible natural monopolies like electric transmission grids and bottleneck railroad lines. In recent …

Antitrust & The Bowl Championship Series, Nathaniel Grow

Nathaniel Grow

This Article analyzes the potential antitrust liability of the Bowl Championship Series (“BCS”), college football’s current system for selecting the participants of both the national championship game as well as other highly desirable post-season bowl games. The BCS has recently been the subject of increasing attack from politicians and law enforcement officials, who allege that the system constitutes an illegal restraint of trade due to its preferential treatment of universities from certain traditionally stronger conferences, at the expense of teams from other historically less competitive conferences. Meanwhile, the academic literature considering the antitrust status of the BCS is mixed, with …

Proposed Horizontal Merger Guidelines: Economists’ Comment, Michael R. Baye, Aaron S. Edlin, Richard J. Gilbert, Jerry A. Hausman, Daniel L. Rubinfeld, Steven C. Salop, Richard L. Schmalensee, Joshua D. Wright

Richard Gilbert

No abstract provided.

Proposed Horizontal Merger Guidelines: Economists’ Comment, Michael R. Baye, Aaron S. Edlin, Richard J. Gilbert, Jerry A. Hausman, Daniel L. Rubinfeld, Steven C. Salop, Richard L. Schmalensee, Joshua D. Wright

Daniel L. Rubinfeld

No abstract provided.

Proposed Horizontal Merger Guidelines: Economists’ Comment, Michael R. Baye, Aaron S. Edlin, Richard J. Gilbert, Jerry A. Hausman, Daniel L. Rubinfeld, Steven C. Salop, Richard L. Schmalensee, Joshua D. Wright

Aaron Edlin

No abstract provided.

Dynamic Efficiencies And Technological Progress In Ec Merger Control, Magdalena Laskowska

Magdalena Laskowska

Economic growth largely hinges upon technological progress and productivity gains are the key to rising incomes and living standards. As high technology industries have significantly increased their prominence in global economic performance in the 1980s and 1990s and economic policy has focused on innovation, merger laws have become a crucial part of antitrust enforcement on both sides of the Atlantic. In recent years, many mergers and acquisitions of control have occurred in innovation-driven industries. Hence, it is important to ask a fundamental question : how is the importance of technological progress reflected in the competition authorities’ decisional practice? Due to …

An Antitrust Analysis Of The Google Book Search Settlement, Laura J.J. Wang

Jianji Wang

The Google Book Search settlement has raised intense debates on its far-reaching effects on copyright and digital distribution of books. This paper focuses on three issues that raise antitrust and competition concerns. First, the Books Rights Registry created by the settlement is not a cartel of the authors. Due to an author’s ability to opt out from the settlement or to set an independent price for the books, the Registry cannot act as a cartel because it lacks a price control function. Second, Google does not violate the section 2 of the Sherman Act by monopolizing the digital books. The …

Lessons For Competition Law From The Economic Crisis: Can "Too Big To Fail" Trigger Useful Antitrust Intervention?, Jesse W. Markham

Jesse Markham

This article examines whether, and the extent to which, antitrust law could contribute to a broader regulatory effort to control the too-big-to-fail problem. The article begins by exploring the nature of the problem. Against this backdrop, antitrust policy and rules are considered to evaluate whether antitrust might play a meaningful role. The article concludes that antitrust law, if vigorously enforced with attention paid to the need to avoid too-big-to-fail problems can be a useful public policy tool to address the problem, although it can come nowhere near solving it or preventing recurrences of recent systemic failures.

Ip Misuse As Foreclosure, Christina Bohannan

Christina Bohannan

In an age of IP expansionism, the doctrine most explicitly concerned with limiting IP overreaching has no defensible basis in IP policy. “Misuse” relates to the IP holder’s use of licenses and other arrangements to obtain rights “beyond the scope” of a statutory IP grant, but the doctrine has not established adequate principles for identifying the practices that should be condemned. The misuse doctrine evolved in patent law and concerned the tying of patented and unpatented goods. Courts held that such tying violated federal patent policy by expanding the statutory monopoly to include a second product not covered by the …

Defining The "Business Of Baseball": A Proposed Framework For Determining The Scope Of Professional Baseball's Antitrust Exemption, Nathaniel Grow

Nathaniel Grow

This article proposes a new analytical framework for determining the proper scope of professional baseball’s antitrust exemption, an issue that has generated surprisingly little scholarly analysis to date. Specifically, the article finds that lower courts have applied the exemption in widely divergent ways, due to a misunderstanding, and in some cases a misinterpretation, of the underlying focus of the United States Supreme Court’s opinions first creating and affirming the exemption. The article argues that future courts should reject the existing lower court precedent, and instead, consistent with the often overlooked focus of the Supreme Court’s decisions, hold that the baseball …

Tying Arrangements And Antitrust Harm, Herbert Hovenkamp

Herbert Hovenkamp

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 her purchases of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires her to purchase 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.

Price discrimination comes in various “degrees.” In third degree price discrimination the seller isolates two or more different …

Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The 'Too-Big-To-Fail' Phenomenon, Jesse Markham

Jesse Markham

This article explores the failure of antitrust law to prevent or intercede to remedy the catastrophic failures of large enterprises. Given the historic focus of antitrust on problems relating to the dangers of out-sized business enterprise, the failure of antitrust in this regard raises interesting questons about whether its mission has drifted from the law's original intent. The article explores the current relationship between antitrust rules and "bigness" and offers a modest proposal for reviving antitrust as a public policy tool that might help to address the too-big-to-fail phenomenon.

Monitoring Managers Through Corporate Compliance Programs, Charles Angelucci, Martijn Han

Martijn A. Han

Compliance programs entail monitoring of employees' behavior with the claimed objective of fighting corporate crime. (Competition) Authorities promote such intra-firm monitoring. In a three-tier hierarchy model, authority-shareholder-manager, we study the impact of monitoring through a compliance program on contracting within the firm and the authority's optimal sanctions and leniency policy. We find that compliance programs are beneficial in the fight against corporate crime if and only if the managerial sanction is low. Moreover, when the shareholder blows the whistle, the authority optimally grants partial corporate leniency, while not granting individual leniency to the involved employees. Conversely, when the employee blows …

Of Vulnerable Monopolists?: Questionable Innovation In The Standard For Class Certification In Antitrust Cases, Joshua P. Davis, Eric L. Cramer

Joshua P. Davis

Some courts appear to have begun to revise the standard for granting class certification, including in antitrust cases. The new standard, if there is one, may empower courts to find facts relevant to the merits in a way that historically they have not been permitted to do. If courts are ratcheting up the standard at class certification by forcing plaintiffs to make a showing on the merits, then it seems an unfortunate development for various reasons. First, the rationale for the change is unsubstantiated and implausible. Neither theory nor evidence supports the claim that corporations settle meritless class actions with …

Expansion And Contraction In Monopolization Law, Michal Gal, Spencer Waller Weber, Avishalom Tor

Avishalom Tor

This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …

Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Joshua P. Davis

Joshua P. Davis

The debate over the value of private antitrust enforcement long has been heavy with self-serving assertions by powerful economic interests, but light on factual evidence. To help fill this void we have been conducting research for several years on a variety of empirical topics. This article develops and then explores the implications of a startling finding. Even those who do not deride private enforcement usually believe its only function is to compensate victims of antitrust violations by modest amounts. Significant deterrence is commonly thought to be the effect only of government enforcement, especially criminal enforcement. Our article's conclusion that the …

The Cfi Microsoft Judgment And Trips Competition Flexibilities, Hans Henrik Lidgard, Tu T. Nguyen

Hans Henrik Lidgard

The CFI Microsoft judgment is a first by any court of a WTO Member, disregarding the competition rules in the TRIPS Agreement to justify the application of domestic competition law to the exercise of IPRs. TRIPS allow WTO Members to enact and apply national competition law to IPR-related anti-competitive practices. The position of the CFI finds support in this fact. Still, it is regretted that the CFI did not invoke the TRIPS competition rules in justifying the Commission’s decision to force Microsoft to supply interoperability information. The article considers the consequences of the European position and the effects of TRIPS …

The Amended Google Books Settlement Is Still Exclusive, James Grimmelmann

James Grimmelmann

This brief essay argues that the proposed settlement in the Google Books case, although formally non-exclusive, would have the practical effect of giving Google an exclusive license to a large number of books. The settlement itself does not create mechanisms for Google's competitors to obtain licenses to orphan books and competitors are unlikely to be able to obtain similar settlements of their own. Recent amendments to the settlement do not change this conclusion.

Conscious Parallelism Revisited, Reza Dibadj

Reza Dibadj

Conscious parallelism, sometimes called tacit collusion, occurs where firms adopt their business practices based on what other firms are doing, rather than competing for customers. The most obvious manifestation occurs where prices across companies in an industry not only become suspiciously similar, but also change rapidly in strikingly parallel ways. Suggested examples are legion and varied: airline tickets, gasoline, cellular phone text messaging and roaming rates, interest rates on bank accounts, credit card interchange fees, movie tickets, recorded music, breakfast cereals, real estate and travel agent commissions, electricity prices in deregulated markets, and air cargo fuel surcharges, just to name …

Antitrust, Class Certification, And The Politics Of Procedure, Joshua P. Davis, Eric L. Cramer

Joshua P. Davis

This Article develops two arguments against a possible trend in federal appellate courts toward imposing a new, heightened standard for class certification in antitrust cases. Recent case law can be read to imply that trial judges may make findings of fact on the merits in deciding class certification, including about whether plaintiffs will be able to show with class-wide evidence that every class member was harmed by allegedly anticompetitive conduct. The first argument is that the potential new standard would require a showing at class certification on an issue—whether all class members were injured—that plaintiffs need not, and typically do …

Fixing Merger Litigation "Fixes": Reforming The Litigation Of Proposed Merger Remedies Under Section 7 Of The Clayton Act, Thomas J. Horton

Thomas J. Horton

No abstract provided.

El Control De Concentraciones Económicas Y Fusiones En El Régimen Competitivo Argentino, Carlos Molina Sandoval

Carlos Molina Sandoval

El régimen competitivo no prohíbe la formación de poderes económicos (de hecho, la misma ley permite gozar de posición dominante -arts. 4 y 5, LDC-), sino que busca controlar mediante una notificación la estructuración del poder económico en el mercado, sancionando sólo aquellos que puedan afectar el interés económico general (art. 7, LDC). Este ensayo analiza el control de concentraciones económicas en el régimen argentino.

Framing Franchise In Antitrust Litigation-The Legacy Of Kodak And Queen City Pizza.Pdf, Randy D. Gordon

Randy D. Gordon