Open Access. Powered by Scholars. Published by Universities.®
Antitrust and Trade Regulation Commons™
Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law and Economics (58)
- Social and Behavioral Sciences (32)
- Intellectual Property Law (30)
- Economics (23)
- Business (22)
-
- Consumer Protection Law (22)
- Technology and Innovation (19)
- Industrial Organization (18)
- Public Affairs, Public Policy and Public Administration (17)
- Business Organizations Law (15)
- Economic Policy (14)
- Courts (13)
- Policy Design, Analysis, and Evaluation (13)
- Comparative and Foreign Law (12)
- Legislation (11)
- Science and Technology Law (10)
- Internet Law (9)
- Economic Theory (8)
- Supreme Court of the United States (8)
- Computer Law (7)
- Legal History (7)
- Science and Technology Policy (7)
- Commercial Law (6)
- Health Law and Policy (6)
- Public Law and Legal Theory (6)
- Administrative Law (5)
- Communication (5)
- Communication Technology and New Media (5)
- Institution
-
- University of Pennsylvania Carey Law School (37)
- University of Michigan Law School (29)
- Georgetown University Law Center (23)
- University of Baltimore Law (20)
- American University Washington College of Law (8)
-
- University of Florida Levin College of Law (7)
- University of Georgia School of Law (7)
- Cleveland State University (5)
- Notre Dame Law School (5)
- Penn State Law (5)
- William & Mary Law School (5)
- Boston University School of Law (4)
- University of Colorado Law School (4)
- Yeshiva University, Cardozo School of Law (3)
- Columbia Law School (2)
- Loyola University Chicago, School of Law (2)
- Maurer School of Law: Indiana University (2)
- University of Missouri School of Law (2)
- Case Western Reserve University School of Law (1)
- Duke Law (1)
- Fordham Law School (1)
- Liberty University (1)
- New York Law School (1)
- Saint Louis University School of Law (1)
- Southern Methodist University (1)
- Texas A&M University School of Law (1)
- University of Cincinnati College of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (1)
- Washington and Lee University School of Law (1)
- Publication Year
- Publication
-
- All Faculty Scholarship (58)
- Articles (28)
- Georgetown Law Faculty Publications and Other Works (23)
- Faculty Scholarship (9)
- Journal Articles (9)
-
- Faculty Publications (8)
- UF Law Faculty Publications (7)
- Law Faculty Articles and Essays (5)
- Articles in Law Reviews & Other Academic Journals (4)
- LLM Theses and Essays (4)
- Publications (4)
- Scholarly Works (4)
- Book Chapters (3)
- Presentations (3)
- Articles by Maurer Faculty (2)
- Faculty Publications & Other Works (2)
- Articles & Chapters (1)
- Book Reviews (1)
- Congressional and Other Testimony (1)
- Faculty Articles and Other Publications (1)
- Faculty Journal Articles and Book Chapters (1)
- Other Publications (1)
- Scholarly Articles (1)
- Scholarship Chronologically (1)
- Senior Honors Theses (1)
- File Type
Articles 31 - 60 of 182
Full-Text Articles in Antitrust and Trade Regulation
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear …
Coty, Amazon, And The Future Of Vertical Restraints: Evolving Distribution Norms On Both Atlantic Shores, Chris Sagers
Coty, Amazon, And The Future Of Vertical Restraints: Evolving Distribution Norms On Both Atlantic Shores, Chris Sagers
Law Faculty Articles and Essays
No abstract provided.
Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane
Toward A Realistic Comparative Assessment Of Private Antitrust Enforcement, Daniel A. Crane
Book Chapters
Over the course of her extraordinary career, Eleanor Fox has contributed in many vital ways to our understanding of the importance of institutional analysis in antitrust and competition law. Most importantly, Eleanor has become the leading repository of knowledge about what is happening around the globe in the field of competition law and its enforcement institutions. At a time when much of the field of antitrust was moving in the direction of theoretical generalization, formal modeling, game theory, and the like, Eleanor tirelessly worked the globe to discover the actual practice of competition law in the world. She left no …
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton
Articles in Law Reviews & Other Academic Journals
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Antitrust And Democracy, Spencer Weber Waller
Antitrust And Democracy, Spencer Weber Waller
Faculty Publications & Other Works
Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under …
Energy Competition: From Commodity To Boutique & Back, James W. Coleman
Energy Competition: From Commodity To Boutique & Back, James W. Coleman
Faculty Journal Articles and Book Chapters
Energy products such as power, gas, and oil have long been the world’s premier commodities. Consumers demand that power and fuel are available when they want it and they prefer to pay less for it. Few know or care where their fuel or power comes from. So for years energy companies believed that efforts to differentiate their products were mostly ineffective — they were re-signed to compete on price in fierce global commodity markets. But in recent years, a new focus on regulating how energy commodities are produced has begun to splinter previously integrated energy markets, creating markets for boutique …
The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari
The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari
Faculty Publications
Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose
Articles in Law Reviews & Other Academic Journals
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
UF Law Faculty Publications
In Ohio v. American Express Co., the United States Supreme Court had its first knowing encounter with what it incorrectly viewed as a two-sided platform in the context of American Express’ Non Disclosure Provisions (NDP). Under these provisions merchants accepting the American Express card for payment are not permitted to inform consumers that other cards charge merchants less for their use and that this could be reflected in the final price paid. The opinion includes poor reasoning, a lack of attention to precedent, and bad news for those who thought antitrust law was due for a revival. Yet, and perhaps …
Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp
Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp
All Faculty Scholarship
Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries. …
Prophylactic Merger Policy, Herbert J. Hovenkamp
Prophylactic Merger Policy, Herbert J. Hovenkamp
All Faculty Scholarship
An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there …
Welcome And Introductory Remarks, Jonathan Baker
Welcome And Introductory Remarks, Jonathan Baker
Presentations
Video link: https://vimeo.com/352303633Audio link: https://www.ftc.gov/news-events/audio-video/audio/economics-big-data-privacy-competition-introductionThe Federal Trade Commission held the sixth session in its Hearings initiative, with two and a half days of sessions on November 6 – 8, 2018, at American University Washington College of Law, in Washington, D.C.The hearings examined the role that data play in competition and innovation and will also consider the antitrust analysis of mergers and firm conduct where data is a key asset or product.The Commission invited public comment on these issues, including the questions listed below. Comments were due January 7, 2019. If any entity has provided funding for research, analysis, or commentary …
The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop
The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV industry, which this …
Has The Us Economy Become More Concentrated And Less Competitive: A Review Of The Data, Jonathan Baker, Steven Berry, Fiona Scott Morton, Joshua Wright, Gregory Werden
Has The Us Economy Become More Concentrated And Less Competitive: A Review Of The Data, Jonathan Baker, Steven Berry, Fiona Scott Morton, Joshua Wright, Gregory Werden
Congressional and Other Testimony
FTC Chairman Joe Simons presented opening remarks, followed by a day of discussion by a distinguished set of panelists who discussed the following topics (some of which will be discussed on the rescheduled date):the current landscape of competition and consumer protection law and policy;whether the U.S. economy has become more concentrated and less competitive;the regulation of consumer data;antitrust law and the consumer welfare standard; andthe analysis of vertical mergers.This hearing was initially scheduled for September 13-14, 2018, but the second day sessions were rescheduled to November 1 due to inclement weather.
Clarifications And Gratitude, Chris Sagers
Clarifications And Gratitude, Chris Sagers
Law Faculty Articles and Essays
Certain things in this book plainly require clarification to avoid misunderstanding. In fact, I think this little discussion was among three people who mostly agree with each other, except that the reviewers may not have known it because I failed to explain myself well enough. Because I didn't, they mostly didn't discuss what I always intended to be the book's real contribution and its most interesting material.
I start out in Part I by trying to restate what I see as the problem that is the book's only immediate concern. That restatement is a first draft for how I will …
#Lolnothingmatters, Chris Sagers
#Lolnothingmatters, Chris Sagers
Law Faculty Articles and Essays
Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the contretemps currently enjoying some attention in the popular press, imagine that antitrust problems are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself. The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay. Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-fault rule to control concentration for its own …
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan
Faculty Publications
This short paper comments on Professor Carrier's new article, Biologics: The New Antitrust Frontier. His article makes a profound initial contribution to a new area of scholarship, based on a large body of prior work considering antitrust issues relating to small molecule drugs. But Professor Carrier’s article, like my own forthcoming piece on innovation and competition in the biologics marketplace, is inherently speculative. We are making our best judgments about the nature of a still emerging marketplace and likely conduct in that marketplace, based on our understandings of a new regulatory framework that is itself still emerging, the broader legal …
Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro
Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective …
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
All Faculty Scholarship
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is socially costly or …
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 …
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 …
Market Power In The U.S. Economy Today, Jonathan Baker
Market Power In The U.S. Economy Today, Jonathan Baker
Presentations
Market concentration measures the extent to which market shares are concentrated between a small number of firms. It is often taken as a proxy for the intensity of competition. Indeed, in recent years changes in concentration have increasingly been used to argue that the intensity of competition is falling, that the growth of large firms with high market shares is driving up profits, damaging innovation and productivity, and increasing inequality. Some have argued that the competition rules need to be rewritten and a crackdown by overly antitrust agencies is required. The simplicity of this framing has found supporters across the …
How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller
How Much Of Health Care Antitrust Is Really Antitrust?, Spencer Weber Waller
Faculty Publications & Other Works
No abstract provided.
Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane
Why Intra-Brand Dealer Competition Is Irrelevant To The Price Effects Of Tesla's Vertical Integration, Daniel A. Crane
Articles
"In recent years, Tesla Motors (recently renamed Tesla) has been engaged in a state-by-state ground way for the right to distribute it’s all-electric vehicles directly to consumers. The car dealers' lobby, with the political backing of General Motors, has fiercely battled back, relying on decades-old state dealer protection laws to argue that Tesla is legally bound to distribute through franchised dealers. Through a combination of favorable state legislative and judicial decisions, Tesla has won the right to distribute directly in many states, but remains categorically barred from direct distribution in important states like Michigan and Texas--and hence all direct distribution …
The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop
The Raising Rivals' Cost Foreclosure Paradigm, Conditional Pricing Practices, And The Flawed Incremental Price-Cost Test, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
There are two overarching legal paradigms for analyzing exclusionary conduct in antitrust – predatory pricing and the raising rivals’ costs characterization of foreclosure. Sometimes the choice of paradigm is obvious. Other times, it may depend on the structure of the plaintiff’s allegations. Some types of conduct, notably conditional pricing practices (CPPs), might appear by analogy to fit into both paradigms. CPPs involve pricing that is conditioned on exclusivity or some other type of favoritism in a customer’s purchases or input supplier’s sales. The predatory pricing paradigm would attack the low prices of CPPs. By contrast, the RRC foreclosure paradigm would …
Pharmaceutical M&A Activity: Effects On Prices, Innovation, And Competition, Barak D. Richman, Will Mitchell, Elena Vidal, Kevin Schulman
Pharmaceutical M&A Activity: Effects On Prices, Innovation, And Competition, Barak D. Richman, Will Mitchell, Elena Vidal, Kevin Schulman
Faculty Scholarship
The rise of blockbuster pharmaceutical acquisitions has prompted fears that unprecedented market concentration will weaken competition. Two of the most prominent concerns focus on the upstream and downstream ends of the pharmaceutical industry: (1) the concern that these mergers will concentrate the market for discovery and will therefore lead to fewer discoveries; and (2) the concern that merging large marketing, sales, and distribution forces will strengthen the hands of select pharmaceutical manufacturers and weaken downstream competition. Having considered potential dynamic effects in the industry and conducted a series of preliminary interviews with knowledgeable observers, though, this Article argues that neither …
Do Patent Challenges Increase Competition?, Stephen Yelderman
Do Patent Challenges Increase Competition?, Stephen Yelderman
Journal Articles
This Article is the first to seriously scrutinize the claim that patent challenges lead to increased competition. It identifies a number of conditions that must hold for a patent challenge to provide this particular benefit, and evaluates the reasonableness of assuming that the pro-competitive benefits of patent challenges are generally available. As it turns out, there are a number of ways these conditions can and regularly do fail. This Article synthesizes legal doctrine, recent empirical scholarship, and several novel case studies to identify categories of challenges in which the potential benefits for competition are smaller than previously thought or, in …
Modifying Merger Consent Decrees To Improve Merger Enforcement Policy, Steven C. Salop
Modifying Merger Consent Decrees To Improve Merger Enforcement Policy, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article analyzes my short proposal for reviewing and modifying merger consent decrees to permit additional relief if the provisions of the initial consent merger are found to fail to preserve or restore competition in a reasonable period of time after the merger was consummated. My proposal also would involve more frequent reviews of consummated mergers that have been cleared without challenge, particularly those that were close calls. While “Don't Look Back” might be the best anthem for artists, economic decision theory would not support that approach to merger policy.
Predicting the impact of proposed mergers and remedies on consumers …
Antitrust And Wealth Inequality, Daniel Crane
Antitrust And Wealth Inequality, Daniel Crane
Articles
In recent years, progressive public intellectuals and prominent scholars have asserted that monopoly power lies at the root of wealth inequality and that increases in antitrust enforcement are necessary to stem its rising tide. This claim is misguided. Exercises of market power have complex, crosscutting effects that undermine the generality of the monopoly regressivity claim. Contrary to what the regressivity critics assume, wealthy shareholders and senior corporate executives do not capture the preponderance of monopoly rents. Such profits are broadly shared within and dissipated outside the firm. Further, many of the subjects of antitrust law are middle-class professionals, sole proprietors, …
Assembled Products: The Key To More Effective Competition And Antitrust Oversight In Health Care, William M. Sage
Assembled Products: The Key To More Effective Competition And Antitrust Oversight In Health Care, William M. Sage
Faculty Scholarship
This Article argues that recent calls for antitrust enforcement to protect health insurers from hospital and physician consolidation are incomplete. The principal obstacle to effective competition in health care is not that one or the other party has too much bargaining power, but that they have been buying and selling the wrong things. Vigorous antitrust enforcement will benefit health care consumers only if it accounts for the competitive distortions caused by the sector’s long history of government regulation. Because of regulation, what pass for products in health care are typically small process steps and isolated components that can be assigned …