Antitrust and Trade Regulation Commons^™

The Depth Of The Trade In Services Agreement, Harold Godsoe

Harold Godsoe

The setting against which plurilateral negotiations toward a new Trade in Services Agreement (TISA) are taking place is frustration. Service liberalization from GATS to bilateral PTAs to the Doha round have proven difficult and/or ineffective. The glaring and unexamined question is: why? This paper examines the current trade literature for what is known about TISA to date and subjects that information to a feasibility analysis for trade in service agreements. My goal is to understand what went wrong in previous attempts to liberalize services and/or trade and, consequently, what might being going wrong in TISA, and how it ...

Trademark Morality, Mark Batholomew

William and Mary Law Review

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, judicial assessments of highly charged questions of right and wrong are also at work. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decision making, often without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors ...

A Channel Worth Changing? The Individual Regional Sports Network: Proliferation, Profits, Parity, And The Potential Administrative And Antitrust Issues That Could Follow, Stephen Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

League Structure & Stadium Rent Seeking—The Role Of Antitrust Revisited, David Haddock, Tonja Jacobi, Matthew Sag

Florida Law Review

Professional North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries—the structure of league control—that enables rent-seeking by American teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support ...

League Structure &Stadium Rent Seeking— The Role Of Antitrust Revisited, David Haddock, Tonja Jacobi, Matthew Sag

Florida Law Review

Professional North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries—the structure of league control—that enables rent-seeking by American teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support ...

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on ...

One Short Of A Load: Why An Illinois Brick Repealer Will Increase Private Antitrust Enforcement In Montana, Gale Price

Montana Law Review

One approach Montana could take to increase private antitrust enforcement would be to enact an Illinois Brick repealer rejecting the indirect purchaser rule. Under ARC America, such a rule is not preempted by federal law. A repealer would allow Montana to counteract some of the negative effects of Illinois Brick, including the denial of compensation to injured indirect purchasers and the deferral of private enforcement to direct purchasers who may have less incentive to sue their suppliers. The MUTPA is well suited for such a repealer because it allows class actions and has clearly defined many anticompetitive behaviors as unlawful ...

The Effect Of Content On Global Internet Adoption And The Global “Digital Divide”, V. Brian Viard, Nicholas Economides

New York University Law and Economics Working Papers

A country’s human capital and economic productivity increasingly depend on the Internet due to its expanding role in providing information and communications. This has prompted a search for ways to increase Internet adoption and narrow its disparity across countries – the global “digital divide.” Previous work has focused on demographic,economic, and infrastructure determinants of Internet access difficult to change in the short run. Internet content increases adoption and can be changed more quickly; however, the magnitude of its impact and therefore its effectiveness as a policy and strategy tool is previously unknown.

Quantifying content’s role is challenging because ...

Confucianism And Antitrust: China's Emerging Evolutionary Approach To Anti-Monopoly Law, Thomas J. Horton

Thomas J. Horton

In August, 2007, the People’s Republic of China, through its National People’s Congress, enacted its Anti-Monopoly Law, which took effect in August, 2008. This article discusses the historical, cultural, and philosophical values that have helped to shape and influence China’s current AML. Rather than following the United States and Europe, China appears to be charting its own course in interpreting and enforcing its competition laws. Based upon China’s history, culture, and Confucian ethics and morals, this article forecasts that China’s future AML enforcement will be based upon social, moral, and ethical considerations, as well as ...

Mercados Y Jerarquías, Jose Luis Sardon

Jose Luis Sardon

Porqué no se deben controlar las fusiones, adquisiciones y concentraciones empresariales.

Post-Kirtsaeng, 'Material Differences' Between Copyright And Trademark Law's Treatment Of Gray Goods Persist, Charles E. Colman

New York University Public Law and Legal Theory Working Papers

The U.S. Supreme Court’s recent ruling in Kirtsaeng v. John Wiley & Sons would seem no trivial event for stakeholders in content-reliant industries. The upshot of the Court’s decision — that the Copyright Act cannot be used to prevent the unauthorized importation of copies of works, even if manufactured abroad, whose “first sale” has already occurred — will, at least initially, throw a wrench into many companies’ existing business models.

As one would expect, commentary on the decision has been extensive. With few exceptions, however, commentators attempting to predict the impact of Kirtsaeng have not looked beyond copyright law to ...

Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese

Faculty Publications

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Supreme Court reversed Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), which had banned minimum resale price maintenance (“minimum RPM”) as unlawful per se. For many, Leegin was a straightforward exercise of the Court’s long-recognized authority, implied by the Sherman Act’s rule of reason, to adjust antitrust doctrine in light of new economic learning. In particular, Leegin invoked the teachings of transaction cost economics (“TCE”), which holds that many non-standard agreements, including minimum RPM, are voluntary mechanisms that reduce the transaction costs that manufacturers incur when they rely upon independent dealers to distribute their goods. For instance, proponents of TCE, including Nobel Laureate Oliver Williamson, have asserted that minimum RPM can prevent free riding and ensure that dealers engage in an optimal amount and type of promotion. Invoking these and other possible benefits, the Leegin Court ruled that minimum RPM could produce “redeeming virtues” and thus did not satisfy the normal test for per se condemnation. In so doing, the Court adhered to the rule of reason’s requirement, articulated in Standard Oil Co. v. United States, 221 U.S. 1 (1911), that courts adjust antitrust doctrine when “more accurate economic conceptions” undermine previous decisions.

However, some have chosen to resist Leegin to the utmost. In particular, scholars, enforcement officials, and forty-one state attorneys general have sought to convince Congress and/or state legislatures to reinstate the per se rule by statute, for instance, and have contended that minimum RPM is unlawful per se under existing state antitrust laws. Many have also argued that, pending Leegin’s reversal, courts should subject minimum RPM to a “quick look” rule of reason, whereby the practice is presumed unlawful, immediately casting upon the defendant a burden of justification. Perhaps because of these efforts, legislation that would have reversed Leegin and codified Dr. Miles was proposed by Congress in 2011.

There is, of course, a long history of Congress overriding straightforward applications of the Sherman Act, sometimes at the behest of special interest groups that benefit from such exemptions. However, those who resist Leegin and seek to reinstate the per se rule against minimum RPM do not rely upon the power of legislatures to pass wealth-reducing legislation. Instead they argue that Leegin “got it wrong” when applying basic antitrust principles animating the rule of reason. For these advocates, then, a new per se ban on minimum RPM would merely undo Leegin’s mistake.

This article refutes the various arguments that Leegin’s detractors have made for reinstating Dr. Miles and/or “quick look” treatment. TCE, it is shown, undermined the central premise of the per se rule, namely, that minimum RPM is economically indistinguishable from a naked horizontal cartel between dealers. This realization casts upon those who resist Leegin a burden of articulating and supporting an alternative rationale for per se condemnation. As the Article shows, Leegin’s detractors have not met this burden. Instead, their various arguments contradict TCE, basic antitrust principles, or both. Taken to their logical conclusion, these arguments would require the Court to abandon decades of jurisprudence based upon TCE and/or the long-standing test for per se illegality. However, Leegin’s detractors have offered no argument in favor of such radical changes.

Thus, far from correcting Leegin’s purported antitrust error, reimposition of the ban on minimum RPM would constitute a rejection of the “more accurate economic conceptions” that should drive antitrust doctrine and thus be akin to a welfare-reducing special interest exemption from the Sherman Act. Such exemptions are read narrowly, to minimize the impact of special interest influence in the legislative process. Indeed, even if Congress or the states do codify a per se ban on minimum RPM, state and federal courts will have various doctrinal strategies at their disposal to minimize the wealth-reducing impact of such legislation by, for instance, reading any amendment narrowly and restricting the class of plaintiffs who can challenge such agreements. As a result, resistance to Leegin may be more than merely misguided; it may also be futile

The Regulation Of U.S. Money Market Funds: Lessons From Europe, Latoya C. Brown

Latoya C. Brown

The recent financial crisis challenged long held perceptions of money market funds (“MMFs”) as stable and highly liquid instruments. Regulators in the US and in Europe now seek to impose additional rules on MMFs to avoid another significant failure as happened to the Reserve Fund. In the US, the debate is drawing even more media attention as question of which regulatory body - such as the Securities and Exchange Commission, the Treasury Department, and the Financial Stability Oversight Council – should lead the way has taken interesting twists and turns. This paper examines primary reform options being proposed in the US, and ...

Not Quite Filling The Gap: Why The Miscellaneous Expense Allowance Leaves The Ncaa Vulnerable To Antitrust Litigation, Drew N. Goodwin

Boston College Law Review

Throughout its history, the National Collegiate Athletic Association (NCAA) has been repeatedly accused of violating antitrust law in a range of different ways—restricting television broadcasts, limiting coaches’ salaries, and capping the amount of athletic scholarships. Most recently, in the case of White v. NCAA, a class of plaintiffs argued that the NCAA’s artificial limitation on student-athlete compensation violated antitrust law. Although this case settled before trial, it represented a major victory for student-athletes. The NCAA is now considering a proposal— the Miscellaneous Expense Allowance (“MEA”)—that would raise the NCAA’s artificial cap on athletics-related financial aid by ...

Comentarios A Algunos Aspectos Del Caso De Colusión De Farmacias Y Sus Proyecciones, Críspulo Marmolejo

Críspulo Marmolejo González

RESUMEN: El llamado “Caso Farmacias” constituyó durante 2012 uno de los hitos de investigación y decisión relevantes en el Sistema de Defensa de la Libre Competencia chileno desde la reforma del año 2003. Este trabajo analiza la estructura básica de la sentencia 119/2012 del Tribunal de Defensa de la Libre Competencia, confirmada por el fallo de la Excma. Corte Suprema, rol 2578-2012, redactado por el Ministro Sergio Muñoz, y que denegó los recursos de reclamación en contra de la sentencia del TDLC, interpuestos por Cruz Verde S.A y Salcobrand S.A. El trabajo también esbozará comentarios sobre algunas ...

Toward An Empirical And Theoretical Assessment Of Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Seattle University Law Review

The predominant view in the antitrust field has been that private enforcement, and especially class action cases, yields little or no positive results. This Article analyzes these twenty cases, compares and contrasts their analysis with that of our earlier group of forty cases, and draws new insights from the results of all sixty combined. This Article demonstrate that private antitrust litigation has provided a substantial amount of compensation for victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also demonstrate that private antitrust enforcement has had an extremely strong deterrent effect. In fact, this research ...

Kickbacks, Rebates And Tying Arrangements In Real Estate Transactions; The Federal Real Estate Settlement Act Of 1974; Antitrust And Unfair Practices, Conrad G. Tuohey

Pepperdine Law Review

No abstract provided.

The Doctrine Of Primary Jurisdiction: Was It Inverted?, Patrick Callahan

Pepperdine Law Review

No abstract provided.

Out Of Bounds Under The Sherman Act? Player Restraints In Professional Team Sports , Seth M. Goldstein

Pepperdine Law Review

No abstract provided.

Perspectives In Consumer Advocacy: Antitrust Parens Patriae Suits Pursuant To The Hart-Scott-Rodino Antitrust Improvements Act- A Solution For Wrongs Without Redress, Andrew B. Jones

Pepperdine Law Review

No abstract provided.