Seattle University School of Law
Quinlan & Crisham Ltd.
SelectedWorks
Seikei University
Delaware Court of Chancery
Parker-Hannifin Corporation
Duke Law School
United States Versus Microsoft: A Case Study,
2017
University of Oklahoma College of Law
United States Versus Microsoft: A Case Study, Michael Betts
Oklahoma Journal of Law and Technology
No abstract provided.
Standardization In Information Technology Industries: Emerging Issues Under Section Two Of The Sherman Antitrust Act,
2017
University of Oklahoma College of Law
Standardization In Information Technology Industries: Emerging Issues Under Section Two Of The Sherman Antitrust Act, Michael Betts
Oklahoma Journal of Law and Technology
No abstract provided.
Plunging Into The Information Age: The Effect Of Current Competition Policy On United States Science And Technology Policy,
2017
University of Oklahoma College of Law
Plunging Into The Information Age: The Effect Of Current Competition Policy On United States Science And Technology Policy, Michael Betts
Oklahoma Journal of Law and Technology
No abstract provided.
Antitrust And The Design Of Production,
2017
University of Pennsylvania Law School
Antitrust And The Design Of Production, Herbert J. Hovenkamp
Faculty Scholarship
Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it that way, even per se unlawful naked price fixing among rivals is a restraint on distribution rather than production. Naked price fixing assumes a product that has already been designed and built, and the important cartel decision is what should be each firm’s output ...
Intellectual Property And Competition,
2017
University of Pennsylvania Law School
Intellectual Property And Competition, Herbert J. Hovenkamp
Faculty Scholarship
A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.
IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to ...
Reasonable Patent Exhaustion,
2017
University of Pennsylvania Law School
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
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 ...
A Property Rights Approach To Temporary Work Visas,
2017
NYU School of Law
A Property Rights Approach To Temporary Work Visas, Adam B. Cox, Alessandra Casella
New York University Law and Economics Working Papers
Temporary labor visa rules in the United States are criticized on three grounds: for failing to allocate visas efficiently, for failing to adequately protect domestic workers, and for exposing migrant workers to exploitation. We argue that it is possible to address all three problems by re-configuring the property rights associated with the visas and carefully designing the mechanism for allocating those rights. Our core insight is to unbundle the two rights that today are typically combined: the firm’s right to employ a foreign worker, and the worker’s right to reside and work in the country during that time ...
Antitrust Policy And Inequality Of Wealth,
2017
University of Pennsylvania Law School
Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp
Faculty Scholarship
Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new ...
Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies,
2017
Pepperdine University
Let The State Decide: The Efficient Antitrust Enforcer And The Avoidance Of Anticompetitive Remedies, Andrew J. Fuller
The Journal of Business, Entrepreneurship & the Law
If the antitrust remedy a private party pursues would likely have anticompetitive consequences, would only the government constitute an efficient enforcer of the antitrust laws? Imagine that a plaintiff sues for a remedy so large that the award of the remedy would meaningfully increase market concentration by sending the defendants into bankruptcy. Is such a plaintiff an efficient enforcer of the antitrust laws? Should courts hold that in this situation only the government should be able to challenge the alleged conduct? These questions have gone unaddressed in academic literature because litigation rarely raises the specter of the anticompetitive remedy. Recently ...
The Rule Of Reason,
2017
University of Pennsylvania Law School
The Rule Of Reason, Herbert J. Hovenkamp
Faculty Scholarship
Antitrust’s rule of reason was born out of a thirty year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.
This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even ...
The Ncaa And The Rule Of Reason,
2017
University of Pennsylvania Law School
The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp
Faculty Scholarship
This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.
That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a ...
Progressive Antitrust,
2017
University of Pennsylvania Law School
Progressive Antitrust, Herbert J. Hovenkamp
Faculty Scholarship
Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...
Vertical Merger Enforcement Actions: 1994–2016,
2017
Georgetown University Law Center
Vertical Merger Enforcement Actions: 1994–2016, Steven C. Salop, Daniel P. Culley
Georgetown Law Faculty Publications and Other Works
This is a revised listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 52 vertical matters beginning in 1994 through the end of 2016. It includes challenges and certain proposed transactions that are known to have been abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 Journal of Antitrust Enforcement 1 (2016).
Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?,
2017
Elisabeth Haub School of Law at Pace University
Nba-Age Restrictions: Should The Nba Follow In The Footsteps Of Major League Baseball?, Bryan Kelly
Pace Intellectual Property, Sports & Entertainment Law Forum
This paper will discuss the outlook of current NBA prospects and the development of age restrictions. It will also shed light on several key cases and Collective Bargaining Agreements including: Wood v. National Basketball Association, and Denver Rockets v. All Pro Management, Inc. and the NBA CBA. After that, an analysis of Sherman Antitrust Law and current case law concerning age restrictions in sports, and analyze the possibility for age-restrictions to be argued through the court system. Finally, this paper will look into the NBPA’s duty of representation towards NBA prospects and how the NBPA can take ideas from ...
A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses,
2017
College of William & Mary Law School
A Case Of Overcorrection: How The Ftc’S Regulation Of “Unfair Acts And Practices” Is Unfair To Small Businesses, Jennifer L. West
William & Mary Law Review
No abstract provided.
Justice Scalia And Sherman Act Textualism,
2017
William & Mary Law School
Justice Scalia And Sherman Act Textualism, Alan Meese
Faculty Publications
No abstract provided.
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?,
2017
University of Maine School of Law
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
Maine Law Review
It keeps getting worse and worse. Over the past three and a half decades, the Supreme Court has made countless changes to substantive antitrust doctrine, making successful assertion of an antitrust claim more and more difficult. We have known for at least a century—at least since the Standard Oil decision—that the language in section 1 of the Sherman Act, providing that “every contract, combination . . . , or conspiracy, in restraint of trade . . . , is declared to be illegal” is not to be read literally. “Every” does not mean “every.” It means only “some”—generally, only those restraints of trade which are ...
The Role Of Antitrust Principles In Patent Monopolies: The Third Circuit Applies Antitrust Scrutiny To No-Ag Patent Settlements In Smithkline,
2017
Boston College Law School
The Role Of Antitrust Principles In Patent Monopolies: The Third Circuit Applies Antitrust Scrutiny To No-Ag Patent Settlements In Smithkline, Meghan Fay
Boston College Law Review
On June 26, 2015, in King Drug Co. of Florence v. Smithkline Beecham Corp., the U.S. Court of Appeals for the Third Circuit held that no-authorized generic agreements (“no-AG agreements”), in which a pioneer pharmaceutical manufacturer agrees not to introduce a generic drug, are subject to antitrust scrutiny under the Sherman Act. This Comment argues that the Third Circuit correctly extended the U.S. Supreme Court decision in Federal Trade Commission v. Actavis to non-cash settlement agreements. In Actavis, the Court held that a “reverse-payment settlement,” which compensates a generic manufacturer to delay market entry, creates monopolistic consequences and ...
Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics,
2017
Boston College Law School
Weaponizing Citizen Suits: Second Circuit Revises The Burden Of Proof For Proving Sham Citizen Petitions In Apotex V. Acorda Therapeutics, Franklin Liu
Boston College Law Review
In 2016, in Apotex Inc. v. Acorda Therapeutics, Inc., the United States Court of Appeals for the Second Circuit held that a generic drug company could not rely solely on the timing of the Food and Drug Administration’s (“FDA’s”) disposition of a citizen suit and approval of a generic application to state a claim under the Sherman Act based on sham litigation. By contrast, in 2009, in In re DDAVP Direct Purchaser Antitrust Litigation, the Second Circuit held that precisely such evidence was sufficient to state a Sherman Act claim. This Comment argues that the Second Circuit’s ...
Patent Pools And Related Technology Sharing,
2017
Northwestern University
Patent Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp
Faculty Scholarship
A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders. The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees. Public effects can also be significant. For example, technology sharing of complementary patents can improve product quality and variety. In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output ...
