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 …

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 …

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.

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

Randy D. Gordon