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Anticompetitive Mergers In Labor Markets, 2018 University of Pennsylvania
Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp
Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries ...
Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, 2018 University of Maine School of Law
Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, Stephanie M. Greene
Maine Law Review
The National Collegiate Athletic Association (NCAA) is a powerful force in shaping the intercollegiate athletic programs of some 1200 public and private colleges. Courts have recognized the NCAA as an entity that serves the important and admirable functions of maintaining the amateur status of intercollegiate athletics and the integrity of the educational process for the student-athlete, while providing a fair and equitable competitive environment. Most of the NCAA's rules and regulations are promulgated to promote and maintain these goals. Nevertheless, both student-athletes and coaches have challenged NCAA rules in the courts, claiming that certain rules discriminate on the basis ...
Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, 2018 College of William & Mary Law School
Worth The Click: Why Greater Ftc Enforcement Is Needed To Curtail Deceptive Practices In Influencer Marketing, Laura E. Bladow
William & Mary Law Review
No abstract provided.
Whatever Did Happen To The Antitrust Movement?, 2018 University of Pennsylvania Law School
Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp
Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.
In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...
The Justice Of Unequal Pay In The Ufc: An In-Depth Analysis Of The Fighters’ Antitrust Class Action Lawsuit Against The Ufc And The Misplaced Support Of The Proposed Muhammad Ali Expansion Act, 2018 Nova Southeastern University
The Justice Of Unequal Pay In The Ufc: An In-Depth Analysis Of The Fighters’ Antitrust Class Action Lawsuit Against The Ufc And The Misplaced Support Of The Proposed Muhammad Ali Expansion Act, Hunter Sundberg
Pace Intellectual Property, Sports & Entertainment Law Forum
In 2016, the Ultimate Fighting Championships (“UFC”) set the record for the largest sale in sports history. The UFC, the primary promotion company of the once fringe sport of mixed martial arts (“MMA”) had matured into a mammoth 4 billion dollar promotion, but not without some growing pains. The league is replete with controversy, mostly dealing with disgruntled athletes over compensation. Athletes of the UFC feel that they are being financially exploited and they may be correct. The athletes are choosing different routes to remedy their pay disparities but they are misguided.
The first course of action chosen by the ...
Prophylactic Merger Policy, 2018 University of Pennsylvania Law School
Prophylactic Merger Policy, Herbert J. Hovenkamp
An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there ...
The Regulation Of Digital Trade In The Tpp: New Trade Rules For The Digital Age, 2018 Singapore Management University
The Regulation Of Digital Trade In The Tpp: New Trade Rules For The Digital Age, Henry S. Gao
Research Collection School Of Law
With the rapid development of the internet, electronic commerce is also gaining importance in international trade. However, the rules governing digital trade is still largely lacking. While WTO Members have been discussing the regulation of electronic commerce since the last century, little progress has been made. Instead, most of the progresses are made in various free trade agreements, especially those sponsored by the United States. This article starts with a review of the efforts to regulate e-commerce in the WTO, as well as what the pre-TPP US FTAs have achieved so far, followed by a critical appraisal of the achievements ...
Progressive Antitrust, 2018 University of Pennsylvania Law School
Progressive Antitrust, Herbert J. Hovenkamp
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 ...
The Rule Of Reason, 2018 University of Pennsylvania Law School
The Rule Of Reason, Herbert J. Hovenkamp
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 up ...
#Lolnothingmatters, 2018 Cleveland-Marshall College of Law, Cleveland State University
#Lolnothingmatters, Chris Sagers
Law Faculty Articles and Essays
Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the contretemps currently enjoying some attention in the popular press, imagine that antitrust problems are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself. The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay. Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-fault rule to control concentration for its own ...
Announcing The Death Of Colgate.Pdf, 2017 University of Hong Kong
Announcing The Death Of Colgate.Pdf, Thomas K. Cheng
Thomas K. Cheng
Rediscovering Antitrust's Lost Values, 2017 University of South Dakota School of Law
Rediscovering Antitrust's Lost Values, Thomas J. Horton
Thomas J. Horton
Whatever Happened To Quick Look?, 2017 University of Miami Law School
Whatever Happened To Quick Look?, Edward D. Cavanagh
University of Miami Business Law Review
In California Dental Ass’n v. F.T.C. (hereafter “Cal Dental”), the Supreme Court observed that there is no sharp divide separating conduct that can be summarily condemned under section one of the Sherman Act as per se unlawful from conduct that warrants a more searching factual assessment to ascertain any anticompetitive effect and hence its legality. The Court further observed that not every antitrust claim falling outside the narrow ambit of per se illegality warrants the detailed Rule of Reason analysis prescribed in Chicago Board of Trade. The Court thereby eschewed any notion that section one analysis is ...
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, 2017 University of Pennsylvania Law School
An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo
Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by ...
The Public Interest In Corporate Settlements, 2017 University of Virginia School of Law
The Public Interest In Corporate Settlements, Brandon L. Garrett
Boston College Law Review
Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and ...
Horizontal Mergers, Market Structure, And Burdens Of Proof, 2017 University of Pennsylvania Law School
Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro
Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...
Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, 2017 University of Maine School of Law
Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh
Maine Law Review
Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to ...
Sharing, Samples, And Generics: An Antitrust Framework, 2017 Rutgers Law School
Sharing, Samples, And Generics: An Antitrust Framework, Michael A. Carrier
Cornell Law Review
Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act ...
The Actavis Inference: Theory And Practice, 2017 University of California - Berkeley
The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts ...