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Full-Text Articles in Legal History
Antitrust Harm And Causation, Herbert J. Hovenkamp
Antitrust Harm And Causation, Herbert J. Hovenkamp
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How should plaintiffs show harm from antitrust violations? The inquiry naturally breaks into two issues: first, what is the nature of the harm? and second, what does proof of causation require? The best criterion for assessing harm is likely or reasonably anticipated output effects. Antitrust’s goal should be output as high as is consistent with sustainable competition.
The standard for proof of causation then depends on two things: the identity of the enforcer and the remedy that the plaintiff is seeking. It does not necessarily depend on which antitrust statute the plaintiff is seeking to enforce. For public agencies, enforcement …
The Emergence Of Classical American Patent Law, Herbert J. Hovenkamp
The Emergence Of Classical American Patent Law, Herbert J. Hovenkamp
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One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce development politics inevitably distorts the decision making. …
Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp
Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp
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For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.
Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …