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Articles 1 - 30 of 155
Full-Text Articles in Antitrust and Trade Regulation
Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger
Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger
Brooklyn Journal of Corporate, Financial & Commercial Law
Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse
Brooklyn Journal of Corporate, Financial & Commercial Law
The last twenty years have brought antitrust back to the fore as a political issue of greater salience. Several booms and busts in the economy have highlighted the issue of corporate power in the economy and the political system. The growing influence and aggressiveness of the European Union and other jurisdictions’ competition laws have highlighted the relative retreat in the United States. Political movements in the United States have brought issues of corporate power and its abuse back into the public limelight and with them a greater political salience for antitrust in the election cycle of 2020.
A History Of Consumer Class Actions In State Courts, Anne Fleming
A History Of Consumer Class Actions In State Courts, Anne Fleming
Brooklyn Journal of Corporate, Financial & Commercial Law
Most historians date the “modern” class action to the 1966 amendments to the Federal Rules of Civil Procedure. Yet, the class action or “representative suit” has a longer, unexplored history in the state courts. In the late 1930s and 1940s, a group of scrappy, first-generation lawyers tried to build their businesses by aggregating the small-sum claims of many consumers. The defendants in these cases were, for example, lenders who failed to comply with the technicalities of state disclosure mandates, and utility companies that charged consumers extra fees. Each consumer’s claim was small, but, as a group, the claims could yield …
Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green
Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green
Brooklyn Journal of Corporate, Financial & Commercial Law
Critics have accused the Trump Department of Justice (DOJ) and Trump-appointee-chaired Federal Trade Commission (FTC) of populism, deviating from the more technocratic standards that governed agency interventions during the Bush and Obama eras. The broad brush of politicization has been applied to the administration's handling of a wide variety of topics, ranging from marijuana and media mergers, to landmark lawsuits against Google and Facebook. But a more discerning eye is necessary here. The concept of the political has both authoritarian and democratic registers. The federal Google and Facebook antitrust cases reflected the democratization of high technology antitrust. Meanwhile, troublingly authoritarian …
Does The Ftc Have Blood On Its Hands? An Analysis Of Ftc Overreach And Abuse Of Power After Liu, Angel Reyes, Benjamin Hunter
Does The Ftc Have Blood On Its Hands? An Analysis Of Ftc Overreach And Abuse Of Power After Liu, Angel Reyes, Benjamin Hunter
Buffalo Law Review
Recent cases have called the Federal Trade Commission’s (“FTC”) enforcement methods into question. After a circuit split developed in the wake of the Seventh Circuit’s decision in Federal Trade Commission v. Credit Bureau Center, L.L.C., the Supreme Court responded by granting certiorari and consolidating the case with AMG Capital Management, L.L.C. v. Federal Trade Commission. The issue in these cases is whether Section 13(b) of the FTC Act authorizes the FTC to bypass the due process safeguards mandated by Congress in Sections 5 and 19 of the FTC Act and, in doing so, to conduct warrantless searches and seizures, unilaterally …
Google And Shifting Conceptions Of What It Means To Improve A Product, Ramsi Woodcock
Google And Shifting Conceptions Of What It Means To Improve A Product, Ramsi Woodcock
Law Faculty Popular Media
Judges sometimes claim that they do not pick winners when they decide antitrust cases. Nothing could be further from the truth.
Competitive conduct by its nature harms competitors, and so if antitrust were merely to prohibit harm to competitors, antitrust would then destroy what it is meant to promote.
What antitrust prohibits, therefore, is not harm to competitors but rather harm to competitors that fails to improve products. Only in this way is antitrust able to distinguish between the good firm that harms competitors by making superior products that consumers love and that competitors cannot match and the bad firm …
Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey
Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey
Journal of Law and Policy
After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …
Teamwork Or Collusion? Changing Antitrust Law To Permit Corporate Action On Climate Change, Dailey C. Koga
Teamwork Or Collusion? Changing Antitrust Law To Permit Corporate Action On Climate Change, Dailey C. Koga
Washington Law Review
In an era of apprehension about climate change and the future of our planet, private companies are increasingly recognizing their role in increasing sustainability and lowering carbon emissions. To address this growing concern, some industry leaders are taking unilateral action to implement sustainable practices, but other companies have made agreements to fight emissions together. However, the Sherman Antitrust Act forbids agreements in restraint of trade. Further, antitrust law traditionally has refused to recognize ethical or moral justifications as legitimate reasons to permit anticompetitive agreements. As society’s concern for the planet grows and elected leaders move slower than needed to address …
Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu
Vanderbilt Journal of Entertainment & Technology Law
Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …
Regulation And The Marginalist Revolution, Herbert Hovenkamp
Regulation And The Marginalist Revolution, Herbert Hovenkamp
Florida Law Review
The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every academic economist was a marginalist.
This Article considers the historical influence of marginalism on regulatory policy in the United States. My view is at odds with those who argue that marginalism saved capitalism by rationalizing it as a more defensible buttress against incipient socialism. While marginalism …
Vertical Mergers And Entrepreneurial Exit, D. Daniel Sokol
Vertical Mergers And Entrepreneurial Exit, D. Daniel Sokol
Florida Law Review
The idea that tech companies should be permitted to acquire nascent start-ups is under attack from antitrust populists. Yet, this debate on vertical mergers has overlooked important empirical contributions regarding innovation-related mergers in the strategy literature. This Article explores the extant empirical strategy literature, which generally identifies a procompetitive basis that supports vertical mergers as efficiency enhancing. This literature solidifies the current general vertical merger presumption that favors a procompetitive vertical merger policy for purposes of government merger enforcement. However, the procompetitive benefit for a presumption of merger approval for most vertical mergers does not end with the synthesis of …
The Progressive Turn: Politics And Policy In The Movement, Zephyr Teachout, Heather Gautney, Todd Melnick
The Progressive Turn: Politics And Policy In The Movement, Zephyr Teachout, Heather Gautney, Todd Melnick
Posters
Maloney Library lecture series, Behind the Book
The Role Of "Commercial Morality" In Trade Secret Doctrine, Lynda J. Oswald
The Role Of "Commercial Morality" In Trade Secret Doctrine, Lynda J. Oswald
Notre Dame Law Review
The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”
Commercial morality has played a significant but shifting role in trade secret law over the past seven …
From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox
From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox
Notre Dame Law Review
This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …
A Letter To The United States Government On Wealth And Income Inequality, Matthieu Maier
A Letter To The United States Government On Wealth And Income Inequality, Matthieu Maier
English Department: Research for Change - Wicked Problems in Our World
The United States of America is the world’s hotspot when it comes to income and wealth inequality. The wealthiest Americans are accumulating more and more wealth everyday while most Americans, who fall somewhere around middle-class, remain struggling and stagnant. The United States’ unchecked and deregulated system of capitalism is the root cause of our country’s inequities along with our government’s refusal to set aside self-interests and biases in order to combat these issues. From the inequality caused by rouged American systems larger issues are created that lead to complications in health, wages, standard of living, and race relations within our …
Is The Digital Economy Too Concentrated?, Jonathan Klick
Is The Digital Economy Too Concentrated?, Jonathan Klick
All Faculty Scholarship
Concentration in the digital economy in the United States has sparked loud criticism and spurred calls for wide-ranging reforms. These reforms include everything from increased enforcement of existing antitrust laws, such as challenging more mergers and breaking up firms, to an abandonment of the consumer welfare standard. Critics cite corruption and more systemic public choice problems, while others invoke the populist origins of antitrust to slay the digital Goliaths. On the other side, there is skepticism regarding these arguments. This chapter continues much of that skepticism.
Network Effects In Action, Christopher S. Yoo
Network Effects In Action, Christopher S. Yoo
All Faculty Scholarship
This Chapter begins by examining and exploring the theoretical and empirical limits of the possible bases of network effects, paying particular attention to the most commonly cited framework known as Metcalfe’s Law. It continues by exploring the concept of network externalities, defined as the positive external consumption benefits that the decision to join a network creates for the other members of the network, which is more ambiguous than commonly realized. It then reviews the structural factors needed for models based on network effects to have anticompetitive effects and identifies other factors that can dissipate those effects. Finally, it identifies alternative …
Protecting And Fostering Online Platform Competition: The Role Of Antitrust Law, Jonathan Baker
Protecting And Fostering Online Platform Competition: The Role Of Antitrust Law, Jonathan Baker
Contributions to Books
This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anti-competitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways regulation can supplement antitrust law in fostering competition.
Shifting The Burden On Pay-For-Delay Challenges: Analyzing Ab 824’S Effects On Reverse Payment Settlements And Drug Costs, Kevin Wallentine
Shifting The Burden On Pay-For-Delay Challenges: Analyzing Ab 824’S Effects On Reverse Payment Settlements And Drug Costs, Kevin Wallentine
Loyola of Los Angeles Law Review
Antitrust scholars and agencies have recognized the anticompetitive impact of reverse payment settlements—in which branded and generic drug companies settle patent disputes, typically by delaying the entry of generics into the market. Despite clear competition concerns, these settlements are typically subject to a rule of reason analysis that puts the burden on enforcers and plaintiffs to prove their anticompetitive harms. Recent California legislation—AB 824—shifts the burden to the settling drug companies to prove their arrangement is not anticompetitive. AB 824 presents an opportunity for advocates of lower drug costs but still faces hurdles and shortfalls. This Note examines the efficacy …
Managerial Incentives To Repeatedly Collude: Frequency, Partners And Governance Rules, Catarina Marvao Dr., Chloé Le Coq
Managerial Incentives To Repeatedly Collude: Frequency, Partners And Governance Rules, Catarina Marvao Dr., Chloé Le Coq
Articles
Cartel recidivism has been discovered among many convicted firms and is often perceived as a result of the limited efficiency of competition policy. The incentives for managers to collude have been linked to the firm’s organizational structure, the corporate culture, and the type of executive compensation packages in place.
To the extent that undetected cartels differ from detected ones in relevant dimensions, the current empirical results on illegal cartels are biased. To tackle this issue, we use a novel dataset of a population of cartels, which were legal in Sweden up until 1993. We contribute to the current debate on …
Investigating A Mega-Merger: Contextualizing The T-Mobile Merger To The Consumer Welfare Standard And The Competition Standard, Rahul Sukesh
Investigating A Mega-Merger: Contextualizing The T-Mobile Merger To The Consumer Welfare Standard And The Competition Standard, Rahul Sukesh
Fordham Undergraduate Law Review
This Note explores the ruling of the U.S. Judge Victor Marrero in favor of the merger between T-Mobile and Sprint in terms of the specifics of the merger itself, and more broadly, the two dominant schools of antitrust thought: the consumer welfare standard and the competition standard and the specifics of the merger itself. Highlighting issues of antitrust law, this Note will first outline certain background concepts necessary to understand legal precedence around antitrust law. This Note will then trace the merger overtime and focus on how various opposition forces, citing violations of antitrust law, amassed a large body of …
Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert
Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert
Faculty Publications
"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market …
In Defense Of Breakups: Administering A “Radical” Remedy, Rory Van Loo
In Defense Of Breakups: Administering A “Radical” Remedy, Rory Van Loo
Faculty Scholarship
Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that past acquisitions of companies like Whole Foods, Instagram, and YouTube were anticompetitive. But scholars have paid insufficient attention to another major obstacle that also explains why the government in recent decades has not broken up a single large company. After establishing that an anticompetitive merger or other act has occurred, there is great skepticism of breakups as a remedy. Judges, scholars, and regulators see a breakup as extreme, frequently comparing the remedy to trying to “unscramble eggs.” They doubt the government’s competence in executing such a …
Myth, Manipulation, And Minor League Baseball: How A Capitalist Democracy Engenders Income Inequality, Phillip J. Closius, Joseph S. Stephan
Myth, Manipulation, And Minor League Baseball: How A Capitalist Democracy Engenders Income Inequality, Phillip J. Closius, Joseph S. Stephan
University of Cincinnati Law Review
No abstract provided.
Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp
Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp
All Faculty Scholarship
The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.
However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again …
Enough Is As Good As A Feast, Noah C. Chauvin
Enough Is As Good As A Feast, Noah C. Chauvin
Seattle University Law Review
Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.
In-House Counsel Roundtable: Competition And Other Issues In A Pandemic Environment, Karen Hoffman Lent, Gabrielle Kohlmeier, Lutinski Lutinski, Rob Mahini, Suzanne Wachsstock
In-House Counsel Roundtable: Competition And Other Issues In A Pandemic Environment, Karen Hoffman Lent, Gabrielle Kohlmeier, Lutinski Lutinski, Rob Mahini, Suzanne Wachsstock
Fordham Competition Law Institute
No abstract provided.
Plenary Networking Event And Fireside Chat, James Keyte, Frédéric Jenny
Plenary Networking Event And Fireside Chat, James Keyte, Frédéric Jenny
Fordham Competition Law Institute
No abstract provided.
Welcome And Keynote Address, James Keyte
Welcome And Keynote Address, James Keyte
Fordham Competition Law Institute
No abstract provided.
Plenary Networking Event And Fireside Chat, James Keyte, William Kovacic, Barry E. Hawk
Plenary Networking Event And Fireside Chat, James Keyte, William Kovacic, Barry E. Hawk
Fordham Competition Law Institute
No abstract provided.