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Full-Text Articles in Antitrust and Trade Regulation

Whatever Happened To Quick Look?, Edward D. Cavanagh Dec 2017

Whatever Happened To Quick Look?, Edward D. Cavanagh

University of Miami Business Law Review

In California Dental Ass’n v. F.T.C. (hereafter “Cal Dental”), the Supreme Court observed that there is no sharp divide separating conduct that can be summarily condemned under section one of the Sherman Act as per se unlawful from conduct that warrants a more searching factual assessment to ascertain any anticompetitive effect and hence its legality. The Court further observed that not every antitrust claim falling outside the narrow ambit of per se illegality warrants the detailed Rule of Reason analysis prescribed in Chicago Board of Trade. The Court thereby eschewed any notion that section one analysis is ...


The Public Interest In Corporate Settlements, Brandon L. Garrett Nov 2017

The Public Interest In Corporate Settlements, Brandon L. Garrett

Boston College Law Review

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and ...


Progressive Antitrust, Herbert J. Hovenkamp Nov 2017

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro Nov 2017

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship

Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...


Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh Nov 2017

Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh

Maine Law Review

Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help ...


A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman Oct 2017

A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman

Maine Law Review

In Illinois Tool Works Inc. v. Independent Ink, Inc., an ink manufacturer sought to invalidate patents held by a printing system manufacturer by alleging that the patents resulted in illegal tying and monopolization in violation of Sections 1 and 2 of the Sherman Act. This action was preceded by an infringement action brought by Illinois Tool Works (ITW), which was dismissed for lack of personal jurisdiction. Independent Ink (Independent) responded by seeking a judgment of non-infringement and invalidity of patents against ITW. The district court granted summary judgment in favor of ITW on both counts. The court of appeals reversed ...


Uber, Lyft, And Regulating The Sharing Economy, Brett Harris Oct 2017

Uber, Lyft, And Regulating The Sharing Economy, Brett Harris

Seattle University Law Review

The “sharing economy” goes by many names such as the “gig economy,” the “1099 economy,” and the “on-demand economy,” all of which describe the economic system that uses online platforms to connect workers and sellers with clients and consumers, primarily through smartphone applications. Many of the sharing economy companies are also called the “tech disruptors.” They earned this title because they have changed the way that people do business. But in changing the way that people do business, they have also created unique regulatory challenges for governments across the country. The news is rife with stories about when these regulations ...


A Critical Discourse Analysis Of The Intellectual Property Chapter Of The Tpp: Confirming What The Critics Fear, Karyn Hollis Oct 2017

A Critical Discourse Analysis Of The Intellectual Property Chapter Of The Tpp: Confirming What The Critics Fear, Karyn Hollis

communication +1

A host of organizations and citizens groups have convincingly pointed out that so called “Free Trade Agreements” have done more harm than good to the U.S. and other countries involved. Thanks to their protests, for the moment, the most ambitious multinational, neoliberal project of our young century, the Trans-Pacific Partnership (TPP), has been defeated. If the agreement had been adopted, the TPP would have shaped new rules of trade for over 8 million people, spanning 40% of the global economy. Using Critical Discourse Analysis (CDA), my study shows how the complex language of the actual treaty compared to its ...


Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp Oct 2017

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

Faculty Scholarship

“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...


Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp Oct 2017

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

Faculty Scholarship

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...


United States Versus Microsoft: A Case Study, Michael Betts Sep 2017

United States Versus Microsoft: A Case Study, Michael Betts

Oklahoma Journal of Law and Technology

No abstract provided.


Standardization In Information Technology Industries: Emerging Issues Under Section Two Of The Sherman Antitrust Act, Michael Betts Sep 2017

Standardization In Information Technology Industries: Emerging Issues Under Section Two Of The Sherman Antitrust Act, Michael Betts

Oklahoma Journal of Law and Technology

No abstract provided.


Plunging Into The Information Age: The Effect Of Current Competition Policy On United States Science And Technology Policy, Michael Betts Sep 2017

Plunging Into The Information Age: The Effect Of Current Competition Policy On United States Science And Technology Policy, Michael Betts

Oklahoma Journal of Law and Technology

No abstract provided.


Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen Sep 2017

Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen

Research Collection School Of Law

This article examines the legal implications of the interconnections of the global derivatives market, such as the exchange and over-the-counter (OTC) markets, in East and Southeast Asia. First, we introduce the interconnectedness of the global derivatives market. We then examine some legal implications of such interconnectedness from several angles, such as the extraterritoriality of relevant regulations (notably the reporting, clearing and trading mandates prescribed by the G20 and the new initial margin rule), standard product documentation, the effect of substituted compliance, the potential competition effect due to shifting OTC trades to exchange trading and the effect of consolidating exchanges and ...


Intellectual Property And Competition, Herbert J. Hovenkamp Aug 2017

Intellectual Property And Competition, Herbert J. Hovenkamp

Faculty Scholarship

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...


Antitrust And The Design Of Production, Herbert J. Hovenkamp Aug 2017

Antitrust And The Design Of Production, Herbert J. Hovenkamp

Faculty Scholarship

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output ...


Reasonable Patent Exhaustion, Herbert J. Hovenkamp Aug 2017

Reasonable Patent Exhaustion, Herbert J. Hovenkamp

Faculty Scholarship

A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is ...


A Property Rights Approach To Temporary Work Visas, Adam B. Cox, Alessandra Casella Aug 2017

A Property Rights Approach To Temporary Work Visas, Adam B. Cox, Alessandra Casella

New York University Law and Economics Working Papers

Temporary labor visa rules in the United States are criticized on three grounds: for failing to allocate visas efficiently, for failing to adequately protect domestic workers, and for exposing migrant workers to exploitation. We argue that it is possible to address all three problems by re-configuring the property rights associated with the visas and carefully designing the mechanism for allocating those rights. Our core insight is to unbundle the two rights that today are typically combined: the firm’s right to employ a foreign worker, and the worker’s right to reside and work in the country during that time ...


Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller Jul 2017

Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller

The Journal of Business, Entrepreneurship & the Law

If the antitrust remedy a private party pursues would likely have anticompetitive consequences, would only the government constitute an efficient enforcer of the antitrust laws? Imagine that a plaintiff sues for a remedy so large that the award of the remedy would meaningfully increase market concentration by sending the defendants into bankruptcy. Is such a plaintiff an efficient enforcer of the antitrust laws? Should courts hold that in this situation only the government should be able to challenge the alleged conduct? These questions have gone unaddressed in academic literature because litigation rarely raises the specter of the anticompetitive remedy. Recently ...


The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp Jul 2017

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a ...


The Rule Of Reason, Herbert J. Hovenkamp Jul 2017

The Rule Of Reason, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust’s rule of reason was born out of a thirty year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even ...


Vertical Merger Enforcement Actions: 1994–2016, Steven C. Salop, Daniel P. Culley Jun 2017

Vertical Merger Enforcement Actions: 1994–2016, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

This is a revised listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 52 vertical matters beginning in 1994 through the end of 2016. It includes challenges and certain proposed transactions that are known to have been abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 Journal of Antitrust Enforcement 1 (2016).


Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly Jun 2017

Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will discuss the outlook of current NBA prospects and the development of age restrictions. It will also shed light on several key cases and Collective Bargaining Agreements including: Wood v. National Basketball Association, and Denver Rockets v. All Pro Management, Inc. and the NBA CBA. After that, an analysis of Sherman Antitrust Law and current case law concerning age restrictions in sports, and analyze the possibility for age-restrictions to be argued through the court system. Finally, this paper will look into the NBPA’s duty of representation towards NBA prospects and how the NBPA can take ideas from ...


Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim May 2017

Retooling The Intellectual Property-Antitrust Intersection: Insights From Behavioral Economics, 69 Baylor L. Rev. 124 (2017), Daryl Lim

Daryl Lim

This Article argues that courts should operationalize insights offered by behavioral economics in developing jurisprudence at the patent-antitrust interface.


Justice Scalia And Sherman Act Textualism, Alan Meese May 2017

Justice Scalia And Sherman Act Textualism, Alan Meese

Faculty Publications

No abstract provided.


A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West May 2017

A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West

William & Mary Law Review

No abstract provided.


The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer Apr 2017

The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer

Maine Law Review

It keeps getting worse and worse. Over the past three and a half decades, the Supreme Court has made countless changes to substantive antitrust doctrine, making successful assertion of an antitrust claim more and more difficult. We have known for at least a century—at least since the Standard Oil decision—that the language in section 1 of the Sherman Act, providing that “every contract, combination . . . , or conspiracy, in restraint of trade . . . , is declared to be illegal” is not to be read literally. “Every” does not mean “every.” It means only “some”—generally, only those restraints of trade which are ...


Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu Apr 2017

Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu

Boston College Law Review

In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim under the Sherman Act based on sham litigation. By contrast, in 2009, in In re DDAVP Direct Purchaser Antitrust Litigation, the Second Circuit held that precisely such evidence was sufficient to state a Sherman Act claim. This Comment argues that the Second Circuit’s ...