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Articles 1 - 6 of 6
Full-Text Articles in Antitrust and Trade Regulation
What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton
What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton
Articles
Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …
Does Monopoly Broth Make Bad Soup?, Daniel A. Crane
Does Monopoly Broth Make Bad Soup?, Daniel A. Crane
Articles
There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories. Reflecting a …
Iqbal, Twombly, And The Expected Cost Of False Positive Error, Mark Anderson
Iqbal, Twombly, And The Expected Cost Of False Positive Error, Mark Anderson
Articles
Iqbal and Twombly introduced a new standard for pleading federal claims by overruling 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 …
Optimizing Private Antitrust Enforcement, Daniel A. Crane
Optimizing Private Antitrust Enforcement, Daniel A. Crane
Articles
Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long …
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane
Articles
During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied to …
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Articles
The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …