Law Commons^™

Eminent Need: Proposing A Market Participation Exception For Municipal Parker Immunity, Scott B. Weese

Scott B Weese

A township is using its eminent domain powers to become a monopsony in the real estate market for the designated area. That township’s monopsony power is then being exploited to create a price-fixing scheme that would violate antitrust laws, either as a per se violation under § 1 of the Sherman Antitrust Act, or as a monopolizing or attempted monopolizing offense under § 2. Under the Sherman Act, effected residents could force the township to appraise each property individually and pay the full market value; if the township refused, they would be subject to the treble damage penalty, erasing any …

Neutrality And Diversity In The Internet Ecosystem, Andrea Renda

Andrea Renda

The public policy approach to the Internet has become more and more complex as several markets – including fixed and mobile communications, media and content, IT – converge into one single Internet ecosystem. As in all ecosystems, zones and domains depend on each other, and there is no possibility of touching one layer without affecting all others. This paper reflects on the economics of the Internet and emerging business models, and comments on the current debates in each of the layers of modern all-IP architectures, from the unbundling of network elements to net neutrality and the emerging discussion on search …

On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras

George Skouras

This paper deals with the formation and legitimation of the American Corporate State by the Fuller Supreme Court. It argues that the Fuller Court was wrong to use the Due Process Clause of the 14th Amendment and natural law to support laissez-faire capitalism and the emergent corporate structure at the expense of labor and labor unions. It also argues that the corporatization of America has created a social and cultural environment that places business as the center of the American universe. This has led to a very asymmetrical relationship between corporations and citizens. It further argues that recent revisionist scholarship …

The Theorem Of The Social Value Of Inventions And The Happiness Machine Patent Syndrome, Nuno P. Carvalho

Nuno P Carvalho

The higher the social value of inventions the lower is the proportion of revenue that inventors are able to capture from their exploitation. This formulation is a hypothesis that stems from the observation of facts: most patents covering highly valuable inventions are subject to attacks that are difficult to explain. Those attacks have social causes, such as the monopoly stigma, the urge for penance and the idea of just price. Together they form the happiness machine patent syndrome. There is no evidence making a definitive case for the theorem above, and yet observation of the difficulties that have insistently haunted …

Is The Public Utility Holding Company Act A Model For Breaking Up The Banks That Are Too-Big-To-Fail?, Roberta S. Karmel

Roberta S. Karmel

ABSTRACT FOR “IS THE PUBLIC UTILITY HOLDING COMPANY ACT A MODEL FOR BREAKING UP THE BANKS THAT ARE TO-BIG-TO-FAIL?”

BY ROBERTA S. KARMEL

During the financial crisis of 2007-08 and the debates on regulatory reform that followed, there was general agreement that the “too-big-to-fail” principle creates unacceptable moral hazard. Policy makers divided, however, on the solutions to this problem. Some argued that the banking behemoths in the United States should be broken up. Others argued that dismantling the big banks would be bad policy because these banks would not be able to compete with universal banks in the global capital …

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 …

Plus Factors, Robert C. Marshall

Robert C Marshall

Plus factors are economic actions and outcomes, above and beyond parallel conduct by oligopolistic firms, that are largely inconsistent with unilateral conduct but largely consistent with coordinated action. Possible plus factors are typically enumerated without any attempt to distinguish them in terms of a meaningful economic categorization or in terms of their probative strength for inferring collusion. In this paper, we provide a taxonomy for plus factors as well as a methodology for ranking plus factors in terms of their strength for inferring explicit collusion, the strongest of which are referred to as “super plus factors.”

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 …

Property's End: Why Competition Policy Should Limit The Right Of Publicity, Steven Semeraro

Steven Semeraro

The right of publicity is an intellectual property right that empowers celebrities to prohibit the unauthorized use of their names, images, and identities. Over the past two decades, academic commentators have presented powerful critiques of this right. Yet, legislatures and courts have turned a deaf ear, continuing to expand publicity rights. This article has two goals. First, it explains why the seemingly persuasive critique of the right of publicity has failed to influence law makers. The right’s critics claim that publicity cannot be property because the arguments used to justify actual property simply do not apply to publicity. When one …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

From Energy Sector Inquiry To Recent Antitrust Decisions In European Energy Markets: Competition Law As A Means To Implement Energy Sector Regulation In Eu, Michael Diathesopoulos

Michael Diathesopoulos

This paper presents the conceptual path followed by European Union, European Commission and European Competition Network, after the Energy Sector Inquiry (2007) towards the realisation of the objective of an Energy Internal Market, fully functional and open to competition. Firstly, we examine the findings of Sector Inquiry and then we describe how the Third Energy Package - that followed - tried to address the issues highlighted by the Inquiry and how Third Energy Package introduces a promising but complex system, in order to develop sector rules. Following the above, we proceed to a brief but close examination of 10 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 the other most desirable post-season bowl games. The BCS has recently been the subject of increasing attack from both 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 …

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 …

Double Marginalization And The Counter-Revolution Against Liberal Airline Competition, Hubert Horan

Hubert Horan

Summary: In the last decade, the Department of Transportation has abandoned its previously liberal, market-oriented policies towards international airline competition. While the policies of the 1980s and 90s were designed to maximize industry competitive dynamics so that consumers could benefit from ongoing improvements in price and efficiency levels, recent DOT policies have sought to reduce competition and entrench the position of the largest carriers. These policies have already led to the consolidation of 26 previously independent transatlantic airlines into three collusive alliances that would be virtually immune from future competitive challenges, and in 2009 the DOT has initiated a process …

Public Choice Y Derecho De La Competencia: A Propósito Del Caso Clorox Y Los Acuerdos Colusorios Verticales, Óscar Súmar

Oscar Súmar

No abstract provided.

An Antitrust Analysis Of The Google Book Search Settlement, Jianji 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 …

Ree To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Multiemployer Bargaining And Monopoly: Labor-Management Collusion And A Partial Solution, Anthony B. Sanders

Anthony B Sanders

Multiemployer collective bargaining relationships between unions and employer associations easily devolve into legalized cartels. Once unions establish themselves as the bargaining representative for employers’ employees, the employers have much to gain from banding together as an association, raising their prices and eliminating non-union competition, with unions happily serving as enforcement agents in the scheme. In return, unions receive a share of the increased oligopolistic profits in the form of higher wages and benefits. A threat to such a cartel is an employer who wants to bargain with the union but does not want to accept the terms the association has …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

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.

Special Incentives To Sue, Margaret H. Lemos

Margaret H. Lemos

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

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 …

Brands, Competition, And The Law, Deven R. Desai, Spencer Waller

Deven R. Desai

Brands matter. In modern times, brands and brand management have become a central feature of the modern economy and a staple of business theory and business practice. Coca-Cola, Nike, Google, Disney, Apple, Microsoft, BMW, Marlboro, IBM, Kellogg’s, Louis-Vuitton, and Virgin are all large companies, but they are also brands that present powerful, valuable tools for business. Business is fully aware of that power and value. Contrary to the law’s conception of trademarks, brands are used to indicate far more than source and/or quality. Indeed those functions are far down on the list of what most businesses want for their brands. …

Iqbal, Twombly, And The Expected Cost Of False Positive Error, Max Huffman

Max Huffman

Iqbal and Twombly introduced a new standard for pleading federal claims, overruling the five-decades old language from Conley v. Gibson. Instead of plaintiffs being entitled to discovery unless the complaint affirmatively forecloses the possibility of recovery, Iqbal and Twombly require a more searching evaluation of the complaint under an ambiguous “plausibility” standard. The policy behind this increased burden on plaintiffs is to prevent the false positive error that burdensome discovery creates. How the plausibility standard from Iqbal and Twombly should operate in the real world is poorly understood. There is general acknowledgement that no clear guidance exists about how to …