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Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain 2018 University of San Diego

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is ...


Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing 2018 University of San Diego

Looking For Venue In The Patently Right Places: A Parallel Study Of The Venue Act And Venue In Anda Litigation, Mengke Xing

San Diego Law Review

Like any other type of litigation, venue is often an important strategic decision for patent infringement litigants. Under the traditional nation-wide venue rule, a patent owner was able to sue a corporate defendant almost in every district in the country, giving rise to abusive forum shopping and the popularity of the Eastern District of Texas. Last year, the Supreme Court in TC Heartland dramatically changed the legal framework of venue in patent litigation, while leaving some issues unaddressed. After a discussion of the evolvement of venue laws and the significance of TC Heartland, this Comment focuses on the Venue Equity ...


Agribusiness And Antitrust: The Bayer-Monsanto Merger, Its Legality, And Its Effect On The United States And European Union, Aleah Douglas 2018 Cleveland-Marshall College of Law

Agribusiness And Antitrust: The Bayer-Monsanto Merger, Its Legality, And Its Effect On The United States And European Union, Aleah Douglas

The Global Business Law Review

This note examines the current and historical antitrust laws of the United States and the European Union as they relate to the currently pending merger between Bayer and Monsanto. It focuses alternatively on the legality of the merger under modern antitrust laws and the impact such a deal could have on the agribusiness industry in both Europe and the United States. Ultimately, the note argues that the Bayer-Monsanto merger is illegal and should be blocked by the proper authorities in the United States and the European Union.


Is Antitrust's Consumer Welfare Principle Imperiled?, Herbert J. Hovenkamp 2018 University of Pennsylvania Law School

Is Antitrust's Consumer Welfare Principle Imperiled?, Herbert J. Hovenkamp

Faculty Scholarship

Antitrust’s consumer welfare principle stands for the proposition that antitrust policy should encourage markets to produce output as high as is consistent with sustainable competition, and prices that are accordingly as low. Such a policy does not protect every interest group. For example, it opposes the interests of cartels or other competition-limiting associations who profit from lower output and higher prices. It also runs counter to the interest of less competitive firms that need higher prices in order to survive. Market structure is relevant to antitrust policy, but its importance is contingent rather than absolute – that is, market structure ...


Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis 2018 Brooklyn Law School

Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis

Brooklyn Journal of Corporate, Financial & Commercial Law

As of late, labor markets have been a focus point in antitrust enforcement. In 2016 the Department of Justice (DOJ) announced an unprecedented policy to pursue no-poaching agreements criminally. More recently, in January 2018, the DOJ’s Attorney General indicated that the agency is following through on the policy. This Article argues that the DOJ’s new policy is logical and prudent because the economic effects that no-poaching agreements have on labor markets mirror the anticompetitive effects of customer allocation agreements. It also shows that the policy is well-supported by labor economics and antitrust policies. In efforts to comply with ...


Regulation And The Marginalist Revolution, Herbert J. Hovenkamp 2018 University of Pennsylvania Law School

Regulation And The Marginalist Revolution, Herbert J. Hovenkamp

Faculty Scholarship

The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. Marginalism, whose development defines the boundary between classical political economy and neoclassical economics, completely overturned economists’ theory of value. It developed in the late nineteenth century in England, the Continent and the United States. For the classical political economists, value was a function of past averages. One good example is the wage-fund theory, which saw the optimal rate of wages as a function of the firm’s ability to save from previous profits. Another is the theory of corporate finance, which assessed a ...


Has The Academy Led Patent Law Astray?, Jonathan M. Barnett 2018 University of Southern California

Has The Academy Led Patent Law Astray?, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Scholarly commentary widely asserts that technology markets suffer from a triplet of adverse effect arising from the strong patent regime associated with the establishment of the Court of Appeals for the Federal Circuit in 1982: "patent" thickets burdening innovation with transaction and litigation costs; "patent holdup" resulting in excessive payouts to opportunistic patent holders; and "royalty stacking" causing exorbitant patent licensing fees. Together these effects purportedly depress innovation and inflate prices for end-users. These repeated assertions are inconsistent with the continuing robust output, declining prices, and rapid innovation observed in the most patent-intensive technology markets during the more that three ...


Trading Goods For Bad: Is Public Policy Undermined By Investor State Dispute Mechanisms?, Michelle C. Perez 2018 University of Miami Law School

Trading Goods For Bad: Is Public Policy Undermined By Investor State Dispute Mechanisms?, Michelle C. Perez

University of Miami Inter-American Law Review

No abstract provided.


Competition Policy For Exclusionary Pricing: Experimental Evidence, Aaron Edlin 2018 Selected Works

Competition Policy For Exclusionary Pricing: Experimental Evidence, Aaron Edlin

Aaron Edlin

We study the effects of above-cost exclusionary pricing and the efficacy of three
policy responses. We run a series of experiments involving a monopoly incumbent
and a potential entrant. Our experiments show that under a laissez-faire regime,
the threat of post-entry price cuts discourages entry, and allows incumbents to
charge monopoly prices. Current U.S. policy (Brooke Group) does not help. In
contrast, a policy suggested by Baumol (1979) lowers post-exit prices, while Edlin’s
(2002) proposal reduces pre-entry prices and encourages entry in the experiments.
While both policies have less competitive outcomes after entry than Laissez-faire
does, they nevertheless ...


Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith QC, PC 2018 Debevoise & Plimpton LLP

Keynote Address To The Atlas Conference: “International Business Disputes In An Era Of Receding Globalism”, Lord Peter H. Goldsmith Qc, Pc

Georgia State University Law Review

This is a transcript of the luncheon keynote address by Lord Peter Goldsmith at the Sixth Annual Conference of the Atlanta International Arbitration Society (AtlAS) on October 23, 2017.

Lord Peter Goldsmith QC, PC, is London Co-Managing Partner and Chair of European and Asian Litigation at Debevoise & Plimpton LLP. He joined the firm after serving as the UK’s Attorney General from 2001-2007, prior to which he was in private practice as one of the leading barristers in London.

Lord Goldsmith has a long practice in arbitration and in the interface between arbitration and litigation. He appears as counsel for ...


China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow 2018 Ohio State University Moritz College of Law

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not ...


Market Power And American Express, John B. Kirkwood 2018 Seattle University School of Law

Market Power And American Express, John B. Kirkwood

University of Miami Business Law Review

The Second Circuit ruled that American Express did not have market power because it operated in a two-sided market and any leverage it exercised over merchants derived from its successful competition for cardholders. As a result, the relevant market had to include both sides of a credit card transaction, the company’s market share was modest, and it could not exploit both merchants and cardholders. In Market Power and Antitrust Enforcement (forthcoming in B.U. L. REV.), I propose a new approach that infers market power from the likely effects of the challenged conduct. This approach shows that American Express ...


Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro 2018 Thomas Jefferson School of Law

Assessing The Competitive Effects Of Surcharging The Use Of Payment Mechanisms, Steven Semeraro

University of Miami Business Law Review

The Department of Justice’s theory of liability in its case attacking the non–discrimination provisions in American Express’s merchant contracts contends that point–of–sale competition on the price of making a purchase with a credit card is an instrument creating economic efficiency. That is, the economy would run more efficiently, and consumers would be better off, if merchants were free to charge variable prices for different types of credit cards. After all, charging different prices for using different types of payment mechanisms appears to be just another form of presumptively positive price competition.

The Second Circuit rejected ...


Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee 2018 University College London

Applying The Rule Of Reason To Two–Sided Platform Businesses, David S. Evans, Richard Schmalensee

University of Miami Business Law Review

In recent years, the federal courts’ analysis of the competitive effects of conduct challenged under the Sherman Act’s rule of reason, which generally includes market definition as a critical step, has been properly guided by sensitivity to business reality and sound economic analysis of the conduct at issue. When it comes to two–sided platforms, the courts should adhere to that same flexible but principled approach and avoid rigid alternatives that would apply regardless of the platform, conduct, or fact–pattern.

In Ohio v. American Express Co., (Case No. 16–1454), now before the U.S. Supreme Court, the ...


Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia 2018 Boston College Law School

Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso 2018 Universidad Complutense de Madrid

The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso

Law and Justice in the Americas Working Paper Series

The Lisbon Treaty has enlarged the EU’s competences in external investment policy. The EU could thus increase its protagonist role in third-party funding (TPF) regulation in a manner analogous to its achievements in the investment regime, where the EU managed to rally the member states behind DG Trade’s vision. A treaty-based analysis combined with a political evaluation suggest the EU is expanding its field of competences either when it has a clear mandate or by establishing a modus vivendi as it has been the case with its external relations, particularly at the United Nations. There is therefore a ...


The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher 2018 Boston College Law School

The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher

Boston College Law School Faculty Papers

No abstract provided.


Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett 2018 Boston College Law School

Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett

Law and Justice in the Americas Working Paper Series

No abstract provided.


The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher 2018 Global Development Policy Center, Boston University Frederick S. Pardee School of Global Studies

The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher

Law and Justice in the Americas Working Paper Series

No abstract provided.


Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia 2018 Boston College Law School

Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


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