Open Access. Powered by Scholars. Published by Universities.®
Antitrust and Trade Regulation Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Intellectual Property Law (23)
- Law and Economics (17)
- Business Organizations Law (10)
- International Trade Law (9)
- Business (8)
-
- Law and Society (8)
- Social and Behavioral Sciences (8)
- Commercial Law (7)
- Consumer Protection Law (7)
- Economics (7)
- Entertainment, Arts, and Sports Law (7)
- Food and Drug Law (6)
- Legislation (6)
- Administrative Law (5)
- Civil Procedure (5)
- Labor and Employment Law (5)
- Legal History (5)
- Courts (4)
- Health Law and Policy (4)
- Judges (4)
- Science and Technology Law (4)
- Technology and Innovation (4)
- Comparative and Foreign Law (3)
- Dispute Resolution and Arbitration (3)
- Entrepreneurial and Small Business Operations (3)
- Industrial Organization (3)
- International Law (3)
- Litigation (3)
- Institution
-
- Selected Works (9)
- American University Washington College of Law (7)
- Vanderbilt University Law School (7)
- University of Kentucky (6)
- University of Pennsylvania Carey Law School (6)
-
- Columbia Law School (5)
- University of Miami Law School (4)
- Singapore Management University (3)
- UIC School of Law (3)
- University of Florida Levin College of Law (3)
- University of Maine School of Law (3)
- University of Michigan Law School (3)
- University of Oklahoma College of Law (3)
- William & Mary Law School (3)
- Cornell University Law School (2)
- Duke Law (2)
- Fordham Law School (2)
- Georgetown University Law Center (2)
- Marquette University Law School (2)
- Mitchell Hamline School of Law (2)
- Notre Dame Law School (2)
- Roger Williams University (2)
- SJ Quinney College of Law, University of Utah (2)
- St. John's University School of Law (2)
- Texas A&M University School of Law (2)
- University of Baltimore Law (2)
- University of Maryland Francis King Carey School of Law (2)
- Brooklyn Law School (1)
- Florida State University College of Law (1)
- Loyola University Chicago, School of Law (1)
- Keyword
-
- Antitrust (35)
- Competition (11)
- Sherman Act (9)
- Innovation (7)
- Regulation (7)
-
- Patent (6)
- Antitrust law (5)
- Cartels (5)
- FTC (5)
- Monopolization (5)
- Hatch-Waxman (4)
- Mergers (4)
- Patents (4)
- Settlement (4)
- Technology (4)
- Clayton Act (3)
- Drugs (3)
- IT industries (3)
- Inequality (3)
- Information technology (3)
- Intellectual property (3)
- Law (3)
- Monopoly (3)
- Paragraph IV (3)
- Pay for delay (3)
- Pharmaceuticals (3)
- Reverse payment (3)
- United States (3)
- ACA (2)
- Bitcoin (2)
- Publication
-
- Faculty Scholarship (11)
- All Faculty Scholarship (9)
- Articles (7)
- American University Law Review (4)
- Aaron Edlin (3)
-
- Faculty Publications (3)
- Law Faculty Popular Media (3)
- Law Faculty Scholarly Articles (3)
- Maine Law Review (3)
- Oklahoma Journal of Law and Technology (3)
- Research Collection Yong Pung How School Of Law (3)
- UF Law Faculty Publications (3)
- Vanderbilt Law School Faculty Publications (3)
- Daryl Lim (2)
- Fordham Law Review (2)
- Georgetown Law Faculty Publications and Other Works (2)
- Journal Articles (2)
- Marquette Sports Law Review (2)
- Roger Williams University Law Review (2)
- UIC Law Open Access Faculty Scholarship (2)
- Utah Law Faculty Scholarship (2)
- Vanderbilt Journal of Entertainment & Technology Law (2)
- Vanderbilt Journal of Transnational Law (2)
- All Faculty Publications (1)
- American University Business Law Review (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Ashley Song (1)
- Brooklyn Journal of Corporate, Financial & Commercial Law (1)
- Columbia Center on Sustainable Investment Staff Publications (1)
- Cornell Journal of Law and Public Policy (1)
- Publication Type
Articles 1 - 30 of 113
Full-Text Articles in Antitrust and Trade Regulation
Competition Merger Review For Cross-Border Mergers And Acquisitions In Indonesia, Zulheri Zulheri
Competition Merger Review For Cross-Border Mergers And Acquisitions In Indonesia, Zulheri Zulheri
Indonesia Law Review
This article aimed at expressing ideas on a legal construction of competition merger review (CMR) on Crossborder Mergers and Acquisitions (CBM&A) that have Indonesian legal dimension. The problem has been triggered by the lack of CMR guidelines for CBM&A to nurture a fair and sustainable business competition (FSBC). Consequently, the existing guideline is inadequate for reviewing CBM&A proposals which have a multi-jurisdiction dimension character. As a result, merging (gigantic) companies doing business in Indonesia have enormous opportunities to engage in anti-competitive behavior in the domestic market. In its turn, it brings the impact of reducing competition itself whereby national companies …
Whatever Happened To Quick Look?, Edward D. Cavanagh
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 …
Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford
Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford
Faculty Publications
This paper examines the impact of the 1982 Department of Justice Merger Guidelines on the stock market prices of publicly traded firms in the United States. We argue that those Guidelines were perceived by the market as a real change in enforcement policy that would result in substantial deregulation of mergers throughout the economy. We conduct an event study of S&P 500 firms to test this hypothesis and find evidence of a significant positive effect on the stock prices of firms in moderately concentrated industries subject to antitrust regulation, the firms for which the 1982 Guidelines articulate a substantially less …
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo
All Faculty Scholarship
Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …
The Antitrusting Of Patentability, Saurabh Vishnubhakat
The Antitrusting Of Patentability, Saurabh Vishnubhakat
Faculty Scholarship
Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …
Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh
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 …
Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier
Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier
Cornell Law Review
Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act and …
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Aaron Edlin
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts and …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
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 courts and counsel …
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
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, serve to confirm …
Fairness Opinions, Steven M. Davidoff
Fairness Opinions, Steven M. Davidoff
Steven Davidoff Solomon
This Article re-examines the fairness opinion, as well as its role and necessity in corporate control transactions. This Article argues that today's fairness opinion regime is deeply flawed and, as a consequence, a fairness opinion has little meaning. The reasons are primarily this: the financial analyses underlying fairness opinions, as currently prepared by investment banks, are prone to excessive subjectivity and are frequently the product of valuation techniques that are not in accord with best practices. These defects are exacerbated by the recurring problem of these same investment banks who are conflicted in their provision of these opinions. Meanwhile, SEC …
A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman
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
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 …
Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane
Further Reflections On Antitrust And Wealth Inequality, Daniel A. Crane
Articles
Since I have already published a lengthy academic article on antitrust and wealth inequality, I have the freedom of using this piece to present the key arguments unvarnished by dense citations or technical details (readers interested in those things should consult my earlier article) and to respond to some of the criticisms of my article that have since been levied. My thesis, before and now, is this: claims that antitrust enforcement advances income or wealth progressivity are overstated and rest on simplistic and unrealistic understandings of how antitrust actually operates. While some enforcement actions may generate progressive results, others will …
The Horizons Of Antitrust, Richard M. Steuer
The Horizons Of Antitrust, Richard M. Steuer
St. John's Law Review
(Excerpt)
Critics have been complaining that there are too few jobs in America and too much inequality. They have been calling for broadening the goals of antitrust and, at the very least, for more antitrust enforcement. More enforcement could be expected to have an impact on the concentration of power and on jobs, but even recalibrating the goals of antitrust law cannot, by itself, realistically be considered a panacea for eliminating unemployment or inequality overnight.
At the same time, other countries already have broader goals written into their own laws, including their competition laws, which protect jobs and limit foreign …
Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp
Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp
All 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 …
Bitcoins And Other Cryptocurrencies As Property?, Kelvin F. K. Low, Ernie G. S. Teo
Bitcoins And Other Cryptocurrencies As Property?, Kelvin F. K. Low, Ernie G. S. Teo
Research Collection Yong Pung How School Of Law
The hype over bitcoins and other cryptocurrencies has been compared to the tulip mania in seventeenth-century Netherlands. As they have gained popularity, the law has approached the subject warily, mostly from a regulatory perspective. However, there has been no comprehensive consideration of the fundamental nature of a cryptocurrency owner’s private law relation to his cryptocurrencies. Whether or not cryptocurrencies achieve mainstream adoption, this question will inevitably have to be addressed. This paper considers if bitcoins and other cryptocurrencies might be recognised as the subject of property rights by Commonwealth courts and if so, what such rights ought to entail. It …
United States Versus Microsoft: A Case Study, Michael Betts
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
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
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.
Irma Price Gouging Highlights Sad Truth: Consumer Fleecing Is The New Normal, Ramsi Woodcock
Irma Price Gouging Highlights Sad Truth: Consumer Fleecing Is The New Normal, Ramsi Woodcock
Law Faculty Popular Media
By bringing desperation to so many, Hurricane Irma is revealing a sad fact about many American companies, and not just airlines: that they have come in recent years to embrace taking advantage of desperate consumers as a central part of their business models.
The practice, called dynamic pricing, is intended to ration scarce goods and services, yet, as I show in a recent paper, it primarily harms consumers by making it easier for companies to fleece them.
Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen
Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen
Research Collection Yong Pung How 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/or …
Amazon's Whole Foods Deal Could Still Be Reversed Thanks To Forgotten Antitrust Case, Ramsi Woodcock
Amazon's Whole Foods Deal Could Still Be Reversed Thanks To Forgotten Antitrust Case, Ramsi Woodcock
Law Faculty Popular Media
Amazon formally took ownership of Whole Foods this week after the Federal Trade Commission signaled on August 23 that it wouldn’t stop the deal.
The online retailer isn’t wasting any time remaking the high-end grocery chain in its low-price image. Its first act involved cutting prices on dozens of items, from avocados to tilapia. But that is not what is sending shivers down the aisles of rival food retailers like Walmart, which now controls 20 percent of the grocery market by pursuing just such a low-price strategy.
The reason, which the FTC ignored in providing its imprimatur, is that Amazon …
Big Data, Price Discrimination, And Antitrust, Ramsi Woodcock
Big Data, Price Discrimination, And Antitrust, Ramsi Woodcock
Law Faculty Scholarly Articles
Antitrust law today guarantees a particular distribution of wealth between consumers and firms by promoting competition in some markets, but allowing firms to retain pricing power in other markets, such as those in which a firm has achieved power through oligopoly or by fielding a superior product. By giving firms the power to identify individual consumers at the point of sale and determine the maximum price that each consumer can be made to pay for a product, big data will soon allow firms with pricing power to charge each consumer the highest price that the consumer is able to pay, …
Eu's Antitrust 'War' On Google And Facebook Uses Abandoned American Playbook, Ramsi Woodcock
Eu's Antitrust 'War' On Google And Facebook Uses Abandoned American Playbook, Ramsi Woodcock
Law Faculty Popular Media
On June 27, the European Union imposed a €2.4 billion (US$2.75 billion) fine on Google for giving favorable treatment in its search engine results to its own comparison shopping service. And Germany’s antitrust enforcer is investigating Facebook for asking users to sign away control over personal information.
In contrast, American antitrust enforcers have shown little interest in these companies. The Federal Trade Commission (FTC) did open an investigation into whether Google has a search bias, but closed it in 2013, despite recognizing that it “may have had the effect of harming individual competitors.”
Anti-Americanism, however, does not explain these starkly …
Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller
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, …
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Comment On Us Trade And Investment Agreements Submitted To Ustr, Columbia Center On Sustainable Investment
Columbia Center on Sustainable Investment Staff Publications
Comments to USTR Re: Review of US Trade and Investment Agreements (July 17, 2017): CCSI, in response to the United States Trade Representative’s request for public comment to inform its performance review of US trade and investment agreements, submitted Comments that focused on the impact that investment protection provisions, enforceable through investor-state dispute settlement, have on rights-compliant, inclusive sustainable development within the United States and abroad.
The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp
The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp
All 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 complex question, raising …
Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly
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 a …
The Evolution Of Antimonopoly Proceedings In Japan: Observations Of Third Party Standing To Sue In The Case Involving Jasrac, Yutaka Ishida
The Evolution Of Antimonopoly Proceedings In Japan: Observations Of Third Party Standing To Sue In The Case Involving Jasrac, Yutaka Ishida
Washington International Law Journal
Japan’s Antimonopoly Proceeding has repeatedly changed throughout the 21st century. Originally enacted as the Preliminary Review Procedure, the administrative process evolved into the Complaint Review Procedure from 2005 to 2013, before becoming the Direct Appeal to District Court Procedure in effect now. The proceedings allow the Japan Fair Trade Commission ("JFTC") to regulate the market and shield it from monopolistic behavior. The Japanese Society for Rights of Authors, Composers, and Publishers ("JASRAC") dominates the music copyright management service provider industry in Japan. The company's fee collection methods led the JFTC to issue it a cease and desist order under the …