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The Firm Exemption And The Hierarchy Of Finance In The Gig Economy, Sanjukta Paul, Nathan Tankus 2020 University of St. Thomas, Minnesota

The Firm Exemption And The Hierarchy Of Finance In The Gig Economy, Sanjukta Paul, Nathan Tankus

University of St. Thomas Law Journal

No abstract provided.


Introduction: Labor Law And Antitrust Symposium, Charles J. Reid Jr. 2020 University of St. Thomas School of Law, Minnesota

Introduction: Labor Law And Antitrust Symposium, Charles J. Reid Jr.

University of St. Thomas Law Journal

No abstract provided.


The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

The Looming Crisis In Antitrust Economics, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

As in so many areas of law and politics in the United States, antitrust’s center is at bay. It is besieged by a right wing that wants to limit antitrust even more than it has been limited over the last quarter century. On the left, it faces revisionists who propose significantly greater enforcement.

One thing the two extremes share, however, is denigration of the role of economics in antitrust analysis. On the right, the Supreme Court’s two most recent antitrust decisions at this writing reveal that economic analysis no longer occupies the central role that it once had ...


On The Meaning Of Antitrust's Consumer Welfare Principle, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

On The Meaning Of Antitrust's Consumer Welfare Principle, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay addresses the ambiguities in the meaning of “consumer welfare” in antitrust, exploring the differences between the Williamson, Bork, and current understanding of that term. After weighing the alternatives it argues that the consumer welfare principle in antitrust should seek out that state of affairs in which output is maximized, consistent with sustainable competition


“No More No-Poach”: An Antitrust Plaintiff’S Guide, Amanda Triplett 2020 Washington and Lee University School of Law

“No More No-Poach”: An Antitrust Plaintiff’S Guide, Amanda Triplett

Washington and Lee Journal of Civil Rights and Social Justice

It may seem that agreements between employers not to hire or solicit employees from each other would be illegal under the Sherman Act’s prohibition of conspiracies to fix prices or allocate markets. However, the complexity of this issue pushes the boundaries of antitrust law. But the core principals of antitrust law are tailored to reject them. In a market of employers, where firms are competitors, no-poach restraints have horizontal elements subject to a harsher standard of antitrust review. Firms that enter into these arrangements bypass legal methods to protect against the harms of employee loss, such as a non-compete ...


Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh 2020 Berkeley Law

Google V. Oracle Amicus Merits Stage Brief: Vindicating Ip’S Channeling Principle And Restoring Jurisdictional Balance To Software Copyright Protection, Peter Menell, David Nimmer, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

The Federal Circuit’s decisions in Oracle v. Google conflict with this Court’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), misinterpret Congress’s codification of this Court’s fundamental channeling principle and related limiting doctrines, and upend nearly three decades of sound, well-settled, and critically important decisions of multiple regional circuits on the scope of copyright protection for computer software. Based on the fundamental channeling principle enunciated in Baker v. Selden, as reflected in § 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of ...


Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

Justice Department's New Position On Patents, Standard Setting, And Injunctions, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A deep split in American innovation policy has arisen between new economy and old economy innovation. In a recent policy statement, the Antitrust Division of the Justice Department takes a position that tilts more toward the old economy. Its December, 2019, policy statement on remedies for Standard Essential Patents issued jointly with the U.S. Patent and Trademark Office and the National Institute of Standards and Technology reflects this movement.

The policy statement as a whole contains two noteworthy problems: one is a glaring omission, and the other is a mischaracterization of the scope of antitrust liability. Both positions are ...


Is Baseball Shrouded In Collusion Once More? Assessing The Likelihood That The Current State Of The Free Agent Market Will Lead To Antitrust Liability For Major League Baseball's Owners, Connor Mulry 2020 J.D. Candidate, Fordham University School of Law, May 2020

Is Baseball Shrouded In Collusion Once More? Assessing The Likelihood That The Current State Of The Free Agent Market Will Lead To Antitrust Liability For Major League Baseball's Owners, Connor Mulry

Fordham Journal of Corporate & Financial Law

This Note examines how Major League Baseball’s (MLB) current free agent system is restraining trade despite the existence of the league’s non-statutory labor exemption from antitrust. The league’s players have seen their percentage share of earnings decrease even as league revenues have reached an all-time high. This reality is due to the players’ inability to “cash-in” when their market value hits its apex. Once these players enter the open market, their value has greatly deteriorated and consequently, they are unable to generate earnings commensurate with their value to the league.

This Note first explores the progression of ...


Mining The Harvard Caselaw Access Project, Felix B. Chang 2020 University of Cincinnati College of Law

Mining The Harvard Caselaw Access Project, Felix B. Chang

Faculty Articles and Other Publications

This Essay illustrates how machine learning can disrupt legal scholarship through the algorithmic extraction and analysis of big data. Specifically, we utilize data from Harvard Law School’s Caselaw Access Project to model how courts tackle two thorny question in antitrust: the measure of market power and the balance between antitrust and regulation.


Probability, Presumptions And Evidentiary Burdens In Antitrust Analysis: Revitalizing The Rule Of Reason For Exclusionary Conduct, Andrew I. Gavil, Steven C. Salop 2020 Howard University School of Law

Probability, Presumptions And Evidentiary Burdens In Antitrust Analysis: Revitalizing The Rule Of Reason For Exclusionary Conduct, Andrew I. Gavil, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives.

Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect ...


Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-chien Chang, Adam S. Chilton, Nuno Garoupa 2020 Columbia Law School

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large literature in economics and law suggesting that countries’ legal origins – whether a country’s legal regime was based on British common law or German, French, or Nordic civil law – profoundly impact a range of outcomes. However, the exact relationship between legal origins and legal substance has been disputed in the literature, and this relationship has not been fully explored with nuanced legal coding. We revisit this debate while leveraging extensive novel cross-country datasets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries ...


Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis 2020 European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS)

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A ...


The "License As Tax" Fallacy, Jonathan M. Barnett 2019 University of Southern California

The "License As Tax" Fallacy, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

Intellectual property licenses are commonly portrayed as a “tax” that limits access to technology assets, thereby stunting innovation by intermediate users and inflating prices for end-users. This presumptively skeptical view motivated postwar antitrust’s proliferation of per se rules against a wide array of licensing practices and, more recently, has driven recent Supreme Court decisions on IP licensing and enforcement actions by competition regulators in the U.S. and other commercially significant jurisdictions that would effectively rewrite licensing arrangements in wireless communication markets. Renewed skepticism toward IP licensing, and associated judicial and regulatory interventions, overlook the fact that IP licenses ...


Hunting Unicorns, Aaron Edlin 2019 Selected Works

Hunting Unicorns, Aaron Edlin

Aaron Edlin

We study the effects of above-cost exclusionary pricing and the efficacy of three policy responses by running 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. While both policies have less competitive outcomes after entry than laissez-faire does, they nevertheless both increase consumer welfare. For Edlin ...


Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw 2019 Fordham University School of Law

Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw

Fordham Law Review

The 2018 U.S. Supreme Court decision in Ohio v. American Express Co. was at odds with a trend among antitrust commentators and enforcement authorities away from dependence on formal market definition as part of plaintiffs’ burden of proof. Reliance on market definition as a dispositive issue has been ubiquitous in antitrust cases, but the costs from errors, inefficiency, and uncertainty inherent in that approach are glaring. The issue is ripe for clarification, and this Note suggests a new rule to that end. The proposed rule aims to delineate a set of cases in which formal market definition can confidently ...


Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo 2019 Boston University

Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo

Notre Dame Law Review

Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry-barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent ...


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker 2019 Boston Univeristy School of Law

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the ...


Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop 2019 Stanford Law School

Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.

The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and ...


Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris 2019 University of Helsinki

Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris

Cleveland State Law Review

This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of ...


Framing The Chicago School Of Antitrust Analysis, Herbert J. Hovenkamp, Fiona Scott Morton 2019 University of Pennsylvania Law School

Framing The Chicago School Of Antitrust Analysis, Herbert J. Hovenkamp, Fiona Scott Morton

Faculty Scholarship at Penn Law

The Chicago School of antitrust has benefited from a great deal of law office history, written by admiring advocates rather than more dispassionate observers. This essay attempts a more neutral stance, looking at the ideology, political impulses, and economics that produced the Chicago School of antitrust policy and that account for its durability.

The origins of the Chicago School lie in a strong commitment to libertarianism and nonintervention. Economic models of perfect competition best suited these goals. The early strength of the Chicago School of antitrust was that it provided simple, convincing answers to everything that was wrong with antitrust ...


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