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Rediscovering Antitrust's Lost Values, Thomas J. Horton 2017 University of South Dakota School of Law

Rediscovering Antitrust's Lost Values, Thomas J. Horton

Thomas J. Horton

This Article traces Congress’s consistent balancing and blending of social, political, moral, and economic values and objectives over the course of nearly 120 years of antitrust legislation. As a starting point, a plethora of outstanding and insightful scholarship analyzing Congress’s objectives in passing the Sherman, Clayton, and FTC Acts already exists. Less studied, however, has been Congress’s more recent legislation, including the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), and the National Cooperative Production Amendments of 1993 and 2004, to the National Cooperative Research Act of 1984 (NCRPA). By analyzing the legislative histories of such antitrust ...


Whatever Happened To Quick Look?, Edward D. Cavanagh 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, Christopher S. Yoo 2017 University of Pennsylvania Law School

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

Faculty Scholarship

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, Brandon L. Garrett 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 ...


Trinko: A Kinder, Gentler Approach To Dominant Firms Under The Antitrust Laws?, Edward D. Cavanagh 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, Michael A. Carrier 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, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro 2017 University of California - Berkeley

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

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 ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro 2017 University of California - Berkeley

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro 2017 University of California - Berkeley

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”This article is an effort to help ...


Fairness Opinions, Steven M. Davidoff 2017 Ohio State University - Main Campus

Fairness Opinions, Steven M. Davidoff

Steven Davidoff Solomon

This Article re-examines the fairness opinion, as well as its role and necessity in corporate control transactions. This Article argues that today's fairness opinion regime is deeply flawed and, as a consequence, a fairness opinion has little meaning. The reasons are primarily this: the financial analyses underlying fairness opinions, as currently prepared by investment banks, are prone to excessive subjectivity and are frequently the product of valuation techniques that are not in accord with best practices. These defects are exacerbated by the recurring problem of these same investment banks who are conflicted in their provision of these opinions. Meanwhile ...


Tpf And Isds: A Public Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park 2017 Boston College Law School

Tpf And Isds: A Public Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia, Leo Gargne, Eric De Brabandere, Rachel Denae Thrasher, William Park

Law and Justice in the Americas Working Paper Series

Transcription of a panel at the conference "Reforming International Investment Law: Opportunities, Challenges, Paradigms", sponsored by Boston College Law School and the Pontifical Catholic University of Chile. This transcription was presented in April 2018 as a public comment on the Draft Report of the ICCA/Queen Mary Task Force on Third Party Funding in International Arbitration.


A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman 2017 University of Maine School of Law

A Rose By Any Other Name: Elucidating The Intersection Of Patent And Antitrust Laws In Tying Arrangement Cases, Kyle R. Friedman

Maine Law Review

In Illinois Tool Works Inc. v. Independent Ink, Inc., an ink manufacturer sought to invalidate patents held by a printing system manufacturer by alleging that the patents resulted in illegal tying and monopolization in violation of Sections 1 and 2 of the Sherman Act. This action was preceded by an infringement action brought by Illinois Tool Works (ITW), which was dismissed for lack of personal jurisdiction. Independent Ink (Independent) responded by seeking a judgment of non-infringement and invalidity of patents against ITW. The district court granted summary judgment in favor of ITW on both counts. The court of appeals reversed ...


Uber, Lyft, And Regulating The Sharing Economy, Brett Harris 2017 Seattle University School of Law

Uber, Lyft, And Regulating The Sharing Economy, Brett Harris

Seattle University Law Review

The “sharing economy” goes by many names such as the “gig economy,” the “1099 economy,” and the “on-demand economy,” all of which describe the economic system that uses online platforms to connect workers and sellers with clients and consumers, primarily through smartphone applications. Many of the sharing economy companies are also called the “tech disruptors.” They earned this title because they have changed the way that people do business. But in changing the way that people do business, they have also created unique regulatory challenges for governments across the country. The news is rife with stories about when these regulations ...


A Critical Discourse Analysis Of The Intellectual Property Chapter Of The Tpp: Confirming What The Critics Fear, Karyn Hollis 2017 Villanova University

A Critical Discourse Analysis Of The Intellectual Property Chapter Of The Tpp: Confirming What The Critics Fear, Karyn Hollis

communication +1

A host of organizations and citizens groups have convincingly pointed out that so called “Free Trade Agreements” have done more harm than good to the U.S. and other countries involved. Thanks to their protests, for the moment, the most ambitious multinational, neoliberal project of our young century, the Trans-Pacific Partnership (TPP), has been defeated. If the agreement had been adopted, the TPP would have shaped new rules of trade for over 8 million people, spanning 40% of the global economy. Using Critical Discourse Analysis (CDA), my study shows how the complex language of the actual treaty compared to its ...


Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp 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 ...


United States Versus Microsoft: A Case Study, Michael Betts 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, Michael Betts 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, Michael Betts 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.


Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. CHEN 2017 Singapore Management University

Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen

Research Collection School Of Law

This article examines the legal implications of the interconnections of the global derivatives market, such as the exchange and over-the-counter (OTC) markets, in East and Southeast Asia. First, we introduce the interconnectedness of the global derivatives market. We then examine some legal implications of such interconnectedness from several angles, such as the extraterritoriality of relevant regulations (notably the reporting, clearing and trading mandates prescribed by the G20 and the new initial margin rule), standard product documentation, the effect of substituted compliance, the potential competition effect due to shifting OTC trades to exchange trading and the effect of consolidating exchanges and ...


Antitrust And The Design Of Production, Herbert J. Hovenkamp 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 ...


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