Antitrust and Trade Regulation Commons^™

Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor

Journal Articles

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 …

Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor

Journal Articles

The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited …

At The Brink Of Free Agency: Creating The Foundation For The Messersmith-Mcnally Decision - 1968-1975, Edmund P. Edmonds

Journal Articles

"One of the most dramatic periods in baseball’s long history of labor relations occurred from 1968 through 1975. The Major League Baseball Players Association negotiated baseball’s first Basic Agreement in 1968 without the benefit of any leverage that could alter most of Organized Baseball’s long practices that controlled the players’ mobility and wages. In 1975, however, the union won an arbitration panel hearing that determined that pitchers Dave McNally and Andy Messersmith were free agents after playing one full season under the renewed option year of their contracts and filing a grievance under the newly adopted arbitration process. This stunning …

Back To The Future: Rediscovering Equitable Discretion In Trademark Cases, Mark P. Mckenna

Journal Articles

Courts in recent years have increasingly made blunt use of their equitable powers in trademark cases. Rather than limiting the scope of injunctive relief so as to protect the interests of a mark owner while respecting the legitimate interests of third parties and of consumers, courts in most cases have viewed injunctive relief in binary terms. This is unfortunate, because greater willingness to tailor injunctive relief could go a long way to mitigating some of the most pernicious effects of trademark law’s modern expansion. This Essay urges courts to reverse this trend towards crude injunctive relief, and to re-embrace their …

Congress & Sports Agents: A Legislative History Of The Sports Agent Responsibility And Trust Act, Edmund P. Edmonds, William H. Manz, Thomas J. Kettleson.

Books

Although a majority of individual states have adopted legislation directed toward the conduct of sports agents, the federal government found it necessary to enact Public Law 108-304, the Sports Agent Responsibility and Trust Act (SPARTA). Congress has recognized that many acts of sports agents go unpunished because of disparate, ineffective, or in some cases, a complete absence of state laws.

This volume offers readers the legislative history of SPARTA, including copies of the law, reports, hearings, and related bills. An additional feature of the set is an appendix containing state legislation in this area. The appendix includes the language from …

Reflections On The Manifold Means Of Enforcing The Antitrust Laws: Too Much, Too Little, Or Just Right?, Joseph P. Bauer

Journal Articles

Lately, much attention has been given to the scope of the antitrust laws. This discussion has two overlapping components: (1) consideration of the substantive doctrines specifying the behavioral or structural changes that are or are not unlawful and the appropriate methodology; and (2) analysis for making those determinations with attention given to the appropriate vehicles for enforcing the antitrust laws. Some argue that the antitrust laws proscribe activities that are either pro-competitive or at worst benign. Further, they assert that the multiplicity of antitrust enforcers and enforcement devices has resulted in undue burdens, including excessive cost, time delay, and forestalling …

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Journal Articles

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of …

Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor

Journal Articles

One of the core assumptions of the traditional economic approach to antitrust law is that competitors are perfectly rational, profit-maximizing, decision makers. Sometimes, this assumption serves as a useful simplification of business behavior, providing an effective foundation for antitrust doctrine. At other times, however, assuming strictly rational behavior on the part of competitors is not “approximately right” but, instead, “perfectly wrong.” In these latter cases, the reliance on the perfect rationality assumption can lead scholars to mispredict market behavior and, possibly, advocate erroneous prescriptions for antitrust policy. In contrast, a behaviorally informed approach to antitrust law is based on scientific …

The Stealth Assault On Antitrust Enforcement: Raising The Barriers For Antitrust Injury And Standing, Joseph P. Bauer

Journal Articles

The first Annual Conference sponsored by the American Antitrust Institute featured a number of prominent speakers and explored a number of important issues. The Conference had two principal focuses: substantive questions of antitrust liability and the future direction of public enforcement of the antitrust laws by the Department of Justice's Antitrust Division and by the Federal Trade Commission. However, an issue of at least equal importance was barely discussed, although it has seriously affected the scope and direction of the antitrust laws. That issue: Private enforcement of the antitrust laws, and the significant undermining of those efforts by a number …

Baseball And Antitrust: The Legislative History Of The Curt Flood Act Of 1998, Edmund P. Edmonds, William H. Manz.

Books

No abstract provided.

The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds

Journal Articles

This article discusses the Curt Flood Act of 1998 and explores the nonstatutory labor exemption the Supreme Court has applied to professional sports leagues. It also explores the likely impact of the Curt Flood Act on the rights of players or managers to use antitrust laws effectively against one another.

Over Forty Years In The On-Deck Circle: Congress And The Baseball Antitrust Exemption, Ed Edmonds

Journal Articles

"Congressional discussion of baseball's antitrust exemption stretches over forty years involving a significant number of legislative initiatives. Although the exemption is a judicial aberration without justification, the 103d Congress will probably be no more successful than its predecessors in altering its long-standing existence. The three bills under consideration are not specifically crafted to resolve the problems of the changes in the commissioner's office or the lack of an expansion franchise or the relocation of an existing franchise to the Tampa-St. Petersburg area. Much of the history of Congressional concern over baseball's antitrust status suggests that broad-based attempts to completely remove …

Antitrust And Sports: Must Competition On The Field Displace Competition In The Market?, Joseph P. Bauer

Journal Articles

A casual glance at the daily newspapers would suggest that athletes and sports teams spend almost as much time squaring off in the courts as they do on the playing fields. Professional football players complain that the teams for which they play and the National Football League have conspired to impose illegal restraints on their ability to offer their services to other teams. A baseball team went to court to challenge the decision by the now-deposed Commissioner of Baseball to shift it from one division to another. College players, coaches, and universities all contend that various rules imposed by the …

The Extraterritorial Application Of Antitrust Laws: A Postscript On Hartford Fire Insurance Co. V. California, Roger P. Alford

Journal Articles

Last year in the pages of this journal I published an article comparing the United States and the European Union (E.U.) approaches to the extraterritorial application of antitrust laws. In discussing the U.S. approach, I predicted that "while the jurisdictional rule of reason has its weaknesses, it will remain a lasting fixture on the legal landscape precisely because it represents the only genuine, though inexact, attempt by courts to fashion a jurisdictional test which incorporates the legitimate sovereignty interests of foreign nations." Thus, it was with disappointment that I, along with other proponents of a jurisdictional rule of reason, received …

The Extraterritorial Application Of Antitrust Laws: The United States And European Community Approaches, Roger P. Alford

Journal Articles

This Arti­cle compares the differing approaches of the United States and the European Community as they wrestle with the question of how to regulate foreign anticompetitive activity. More specifically, this Arti­cle highlights the distinctive features of the U.S. "effects doctrine" and the European Community's "implementation approach" and ana­lyzes the differences that exist between the two systems. Only the U.S. doctrine openly provides for the consideration of international comity concerns, but both approaches have been used liberally to assert jurisdiction over foreign defendants. Part II of this Article pro­vides a background to the subject by briefly outlining the traditional bases of …

Why A Private Right Of Action Against Dumping Would Violate Gatt, Roger P. Alford

Journal Articles

Despite its other successes, the General Agreement on Tariffs and Trade (GATT) has been criticized as being anything but successful in the antidumping arena. In particular, industries in the United States argue that GATT has failed to control dumping effectively and that alternative forms of relief are needed to counteract this unfair trade practice. The root of their concerns is the prospective nature of the existing remedy. Since antidumping duties are assessed only after a violation has been detected, dumping is essentially a risk-free, no-lose proposition, giving foreign exporters a free "first bite at the apple." The absence of monetary …

Competition At The Teller's Window?: Altered Antitrust Standards For Banks And Other Financial Institutions, Joseph P. Bauer, Earl W. Kintner

Journal Articles

Congressional and judicial attitudes towards the banking industry have reflected two, sometimes conflicting, goals-the maintenance of the solvency of financial institutions to protect the interests of depositors, other creditors and the economy at large; and the promotion of competition among these institutions and in the economy. The advancement of these goals has been reflected in the application of the antitrust laws to the industry.

For the most part, the Sherman and Clayton Acts apply with the same force and scope to financial institutions as to other industries. In some cases, however, the goal of institutional protection is favored, and the …

Developments In Section Two Of The Sherman Act, Joseph P. Bauer

Journal Articles

The issues raised in this Symposium are of great interest and timeliness. During the 1940s and 1950s, the Supreme Court explored the role of Section 2 of the Sherman Act as an essential element in the antitrust regime. As was true with antitrust generally, courts expanded the reach of Section 2, frequently concluding that the complained-of conduct constituted unlawful monopolization or attempts to monopolize, and approving injunctions forbidding the continuation of exclusionary or predatory practices and orders leading to the breakup of the monopoly itself. However, after the Grinnell decision in 1966, and the Otter Tail case almost a decade …

Application Of The Antitrust Laws To The Activities Of Insurance Companies: Heavier Risks, Expanded Coverage, And Greater Liability, Joseph Bauer, Earl W. Kintner, Michael J. Allen

Journal Articles

Since 1945 Congress has exempted certain activities of insurance companies from federal antitrust scrutiny. This exemption, provided by the McCarran-Ferguson Act, is not unqualified; it only applies to insurance company activities that constitute the "business of insurance" and that already are regulated under state law. Moreover, the exemption does not apply to activities that involve boycotts, coercion, or intimidation. The purpose of this exemption was to preserve the long tradition of state regulation of insurance, while providing federal remedies for coercive anticompetitive activities. The authors examine recent Supreme Court interpretations of the Act in light of this legislative policy and …

Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer

Journal Articles

Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. …

A Federal Law Of Unfair Competition: What Should Be The Reach Of Section 43(A) Of The Lanham Act?, Joseph P. Bauer

Journal Articles

Statutes, like human beings, may experience a mid-life crisis. One notable illustration of this phenomenon is Section 43(a) of the Lanham Act of 1946. This provision, offering federal protection to businesses against many forms of unfair competition engaged in by their rivals, has been the subject of varied and inconsistent judicial treatment. Just as with a growing child, the first eight years of this statute's existence were characterized by few lasting achievements.

Then a landmark decision in 1954 recognized and liberated Section 43(a)'s potential. The past two decades have seen an explosion in the kinds of actions brought under this …

A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer

Journal Articles

Few types of antitrust conduct have received as much treatment from the Supreme Court as tying arrangements. This practice, which is unlawful per se when certain prerequisites are met, may be defined as an agreement by a party to sell one product [the tying product] but only on the condition that the buyer also purchases different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Notwithstanding this extensive Supreme Court attention, there is as much heat as light in this area. The doctrine that has developed is often unpredictable and frequently …

Emerging Issues With Respect To Merger Enforcement Standards, Daniel F. Kolb, Edward W. Large, David Boies, Thomas Dieterich, Malcolm R. Pfunder, Joseph P. Bauer

Journal Articles

I think we are particularly fortunate in the panelists who have assembled for this discussion. And I want to introduce each of them in a moment. Let me first just take a brief bit of time to describe for you what we hope to do today, which is to focus on what we think, within the general scope of merger standards, is the most important issue that we are facing at this time.

We think the key issue is the new legislation that has been proposed in Congress, which is aimed squarely at putting a limit on the size of …

Per Se Illegality Of Concerted Refusals To Deal: A Rule Ripe For Reexamination, Joseph P. Bauer

Journal Articles

Section 1 of the Sherman Act proscribes [e]very contract, combination . . . or conspiracy, in restraint of trade. Early Supreme Court cases interpreting this provision held that it required a determination by the trier of fact of the reasonableness of the challenged conduct in each case — an approach which came to be known as the rule of reason. In subsequent cases, however, the Court has held that certain conduct is unreasonable per se. That is, once a court has determined that such conduct has taken place, it is foreclosed from undertaking an inquiry into the reasonableness of that …

Challenging Conglomerate Mergers Under Section 7 Of The Clayton Act: Today's Law And Tomorrow's Legislation, Joseph P. Bauer

Journal Articles

Federal antitrust enforcement has undergone a radical transformation in the past decade. The change in enforcement patterns has been most noticeable in the area of merger law. The magnitude of this shift, the confusion that has characterized the case law accompanying it, and the increasing prominence of conglomerate mergers as a means to corporate expansion form the basis for this article. The primary source for regulation of mergers under the antitrust laws is section 7 of the Clayton Act, which proscribes those corporate acquisitions “where in any line of commerce in any section of the country, the effect of such …

Professional Activities And The Antitrust Laws, Joseph P. Bauer

Journal Articles

Few subjects in international law raise such incorrigible conflicts of interest as the exercise of extraterritorial jurisdiction in the antitrust context. As one commentator asked with respect to a U.S. court's assertion of jurisdiction over British defendants, "[h]ow could American law, how could an American judgment applying American law possibly vary the rights and obligations created by an English contract to be performed outside the United States?" Indeed, international law is based on the notion that a state occupies a definite territory, within which it normally exercises exclusive jurisdiction.

Yet this traditional doctrine of "territorial jurisdiction" has slowly given way …

The Corporate Antitrust Audit - Establishing A Document Retention Program, Sheldon S. Toll, Joseph P. Bauer

Journal Articles

Preventive maintenance is a doctrine with which lawyers are becoming—or should become—increasingly familiar. Since the field of antitrust law is potentially fraught with dire consequences for corporate clients, it is an area in which the doctrine of preventive maintenance should be liberally applied.

Flood V. Kuhn (407 U.S. 258) Trial Transcript, United States District Court- Southern District Of New York

Curt Flood Trial: May 19 - June 10, 1970

No abstract provided.

Insurance (Annual Survey Of The Law Of New Jersey, 1954-55), Robert E. Rodes

Journal Articles

The survey year seems, as far as the law of Insurance in New Jersey is concerned, to have been more portentous than eventful. Across the river in New York, it has been decided that a company may be a partial subscriber to a rating bureau. Now, another company is attempting, with at least partial success, to write certain types of fire insurance there at 20% less than the bureau rate. These inroads on the bureau structure in New York will certainly have an effect throughout the country in the years to come. But what came to New York with a …

The Moving Picture Anti-Trust Cases, Thomas F. Broden

Journal Articles

United States v. Paramount Pictures, Inc., et al. involves a consideration by the Supreme Court of The United States of the guilt of a vast segment of the nation-wide movie industry of a district court conviction of re- straining and monopolizing interstate trade in the distribution and exhibition of films. Not only were the violations of the Sherman Act by the largest moving picture film distributors of the country in issue, but a more difficult problem, that of what to do about the violations, was presented to the Supreme Court for its consideration.

From a reading of the majority opinion …