Antitrust and Trade Regulation Commons^™

Raising Rivals' Costs: Can The Agencies Do More Good Than Harm?, Alan J. Meese

Alan J. Meese

No abstract provided.

Property Rights And Intrabrand Restraints, Alan J. Meese

Alan J. Meese

Intrabrand restraints limit the discretion of one or more sellers-usually dealers-with respect to the disposition of a product sold under a single brand. While most scholars believe that such contracts can help assure optimal promotion of a manufacturer's products, there is disagreement about the exact manner in which such restraints accomplish this objective. Many scholars believe that such restraints themselves induce dealers to engage in promotional activities desired by the manufacturer. Others believe that such restraints merely serve as "performance bonds," which dealers will forfeit if they fail to follow the manufacturer's precise promotional instructions. Some scholars reject both approaches, …

Monopolization, Exclusion, And The Theory Of The Firm, Alan J. Meese

Alan J. Meese

No abstract provided.

Price Theory And Vertical Restraints: A Misunderstood Relation, Alan J. Meese

Alan J. Meese

The Chicago School of antitrust analysis has exerted a strong influence over the law of vertical restraints in the past two decades, leading the Supreme Court to abandon much of its traditional hostility toward such agreements. Chicago's success has provoked a vigorous response from Populists, who support the traditional approach. Chicago, Populists claim, has improperly relied upon neoclassical price theory to inform the normative and descriptive assumptions that drive its analysis of trade restraints generally and of vertical restraints in particular. This reliance is misplaced, Populists assert, because the real world departs from that portrayed by price-theoretic models and, at …

Market Failure And Non-Standard Contracting: How The Ghost Of Perfect Competition Still Haunts Antitrust, Alan J. Meese

Alan J. Meese

No abstract provided.

Exclusive Dealing, The Theory Of The Firm, And Raising Rivals' Costs: Toward A New Synthesis, Alan J. Meese

Alan J. Meese

No abstract provided.

Economic Theory, Trader Freedom And Consumer Welfare: State Oil Co. V. Khan And The Continuing Incoherence Of Antitrust Doctrine, Alan J. Meese

Alan J. Meese

No abstract provided.

Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese

Alan J. Meese

No abstract provided.

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

D. Daniel Sokol

This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …

Appraising Merger Efficiencies, Herbert Hovenkamp

Herbert Hovenkamp

Mergers of business firms violate the antitrust laws when they threaten to lessen competition, which generally means a price increase resulting from a reduction in output. However, a merger that threatens competition may also enable the post-merger firm to reduce its costs or improve its product. Attitudes toward mergers are heavily driven by assumptions about efficiency gains. If mergers of competitors never produced efficiency gains but simply reduced the number of competitors, a strong presumption against them would be warranted. We tolerate most mergers because of a background, highly generalized belief that most or at least many produce cost savings …

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …

In Defense Of, Or Offensive To Farms? Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Shi-Ling Hsu

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would also normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of larger farms. But these laws are not widely observed and not rigorously enforced, upsetting this balance and giving large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture …

The E-Books Conspiracy: Crossing The Line Between Applying And Creating Law, Tom Campbell

Tom Campbell

This article responds to John Kirkwood’s Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy. Professor Kirkwood argued that in a monopsonistic market (i.e., one where there exists one powerful buyer and many less powerful sellers), or a market in which a buyer has significantly more power than the sellers, collusion on the part of the sellers might be justified, and ought to be a defense to antitrust claims, under certain conditions. This article summarizes Kirkwood’s proposed requirements for invoking this defense and argues that they are overly prescriptive, failing to allow certain instances of beneficial collusion, imposing …

Designing Antitrust Agencies For More Effective Outcomes: What Antitrust Can Learn From Restaurant Guides, D. Daniel Sokol

D. Daniel Sokol

Antitrust policy should be concerned with the quality and effectiveness of the antitrust system. Some efforts at agency effectiveness include self-study of antitrust agencies to determine the factors that lead to improving agency quality. Such studies, however, often focus only on enforcement decisions and other agency initiatives such as competition advocacy. They do not reflect at least one other part of the equation: what do non-government users of the antitrust system think about the quality of antitrust agencies? This Symposium Essay advocates the use of a ratings guide by antitrust practitioners for antitrust agencies to add to the tools in …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

The Sherman Act And The Balance Of Power, David K. Millon

David K. Millon

None available.

The Sherman Act And The Balance Of Power, David K. Millon

David K. Millon

None available.

The Role Of Science In The Uruguay Round And Nafta Trade Disciplines, David A. Wirth

David A. Wirth

The central theme of this article is the necessity for deference to decision-making processes of national regulatory authorities in the application of these new trade disciplines and the need for trade-based reviews of national regulatory measures to operate within clearly defined limits. Accordingly, this article first examines and summarizes the relevant texts, including the original 1947 GATT, the Uruguay Round, and the NAFTA texts on standards. Next, the article considers the role of science in the standard-setting process with reference to the copious literature on this topic. Finally, the article takes up the difficult question of the application of the …

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

The Moral Hazard Problem In Global Economic Regulation, Frank J. Garcia

Frank J. Garcia

Global regulation of international business transactions presents a particular form of the moral hazard problem. Global firms use economic and political power to manipulate state and state-controlled multilateral regulation to preserve their opportunity to externalize the social costs of global economic activity with impunity. Unless other actors can effectively counter this at the national and global regulatory levels, globalization re-creates the conditions for under-regulated or “robber baron” capitalism at the global level. This model of economic activity has been rejected at the national level by the same modern democratic capitalist states which currently dominate globalization, creating a crisis of legitimacy …

Trade And Justice: Linking The Trade Linkage Debates, Frank J. Garcia

Frank J. Garcia

No abstract provided.

Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.

Jesse Markham

The purpose of the article is to offer a critique of the rule of reason, tracing its disintegration from its original articulation 100 years ago in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911). The article then describes a construct for restoring transparency and content to the rule of reason. The rule of reason is the default standard for assessing restraints under the Sherman Act. The role for the rule of reason has expanded in recent years as the Supreme Court has reversed a number of per se rules, thus relegating additional categories of restraints to the …

Opportunism, Uncertainty, And Relational Contracting - Antitrust Rules In The Film Industry, Ryan M. Riegg

Ryan M. Riegg