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Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo 2016 University of Pennsylvania Law School

Avoiding The Pitfalls Of Net Uniformity: Zero Rating And Nondiscrimination, Christopher S. Yoo

Faculty Scholarship

The current debate over network neutrality has not fully appreciated how service differentiation can benefit consumers and promote Internet adoption. On the demand-side, service differentiation addresses the primary obstacle to adoption, which is the lack of perceived need for Internet service, and reflects the growing heterogeneity of consumer demand. On the supply-side, monopolistic competition has long underscored how product differentiation can create stable equilibria with multiple providers – notwithstanding the presence of unexhausted economies of scale – by allowing competitors to target subsegments of the overall market that place a higher value on particular services. Conversely, prohibiting service differentiation would restrict competition ...


Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis 2016 Indiana University Maurer School of Law

Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis

Indiana Journal of Constitutional Design

Is Ecuador’s adoption of Article 422 in the 2008 Constitution properly viewed as a “re-statification”1 of Investor State Dispute Settlement (ISDS)? And, since its implementation, has the constitutional article been effective in institutionally insulating Ecuador from the jurisdictional reach of international ISDS? This paper answers both questions in the negative—but qualifies such an outlook by balancing the drawbacks of Article 422 against its successes. Article 422’s provisions, strident in its attempt to create an alternative development vision, did not achieve all that the Constitution’s drafters had hoped. Nevertheless, in its limited effect of detaching Ecuador ...


Impacto De Las Prácticas Comerciales Desleales Entre Empresas En La Cadena De Suministro Alimentario En La Unión Europea, Luis González Vaqué 2016 Asociación Iberoamericana para el Dereho Alimentario

Impacto De Las Prácticas Comerciales Desleales Entre Empresas En La Cadena De Suministro Alimentario En La Unión Europea, Luis González Vaqué

Luis González Vaqué

Como se señala en la “Introducción” de la Comunicación de la Comisión de 2014, la cadena de suministro alimentario garantiza la transmisión de productos alimenticios y bebidas al público en general para consumo personal o familiar: «afecta a todos los consumidores de la UE de manera cotidianay representa una parte significativa del presupuesto medio de los hogares». En el documento en cuestión se explica el motivo por el cual la estructura de mercado de la cadena de suministro alimentario hace que esta sea especialmente vulnerable a las prácticas comerciales desleales, y, en este sentido, la Comisión describió el perjuicio ...


More Than Just A Toothache? N.C. Dental Leaves Medical Boards Vulnerable: A Look At Telemedicine Companies And Antitrust Challenges To State Prescription Drug Rules, Alexander R. Kalyniuk 2016 College of William & Mary Law School

More Than Just A Toothache? N.C. Dental Leaves Medical Boards Vulnerable: A Look At Telemedicine Companies And Antitrust Challenges To State Prescription Drug Rules, Alexander R. Kalyniuk

William & Mary Business Law Review

Encouraged by technological advancements and favorable provisions within the Affordable Care Act, telemedicine companies that offer online doctor visits are thriving in the health care industry. Online doctor visits are a relatively new and cost-efficient method to provide medical care over long distances that do not require patients to step outside their homes. However, many state medical board scope-of-practice rules prohibit physicians from prescribing medications without an in-person physical examination of the patient, which impedes telemedicine companies from offering their online services in those states. To circumvent this barrier, telemedicine companies may have a prima facie case under § 1 of ...


Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo 2016 University of Pennsylvania Law School

Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo

Faculty Scholarship

Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the ...


Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan B. Baker 2016 American University Washington College of Law

Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan B. Baker

Jonathan B. Baker

This Article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics with politics by describing antitrust’s economic goals as the product of a mid-twentieth century political understanding about the nature of economic regulation that continues to be accepted. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. It identifies contemporary political tensions that threaten to create regulatory gridlock or even to undermine that ...


Antitrust, Competition Policy, And Inequality, Jonathan Baker, Steven Salop 2016 American University Washington College of Law

Antitrust, Competition Policy, And Inequality, Jonathan Baker, Steven Salop

Jonathan B. Baker

Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust ...


Antitrust, Competition Policy, And Inequality, Jonathan B. Baker, Steven C. Salop 2016 American University Washington College of Law

Antitrust, Competition Policy, And Inequality, Jonathan B. Baker, Steven C. Salop

Jonathan B. Baker

Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust ...


Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen 2016 Rutgers Law School

Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen

Notre Dame Law Review

One of the most misunderstood and anticompetitive business behaviors in today’s economy is “product hopping,” which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the “improved” branded product.

The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because ...


The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan 2016 Boston Univeristy School of Law

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to optimize ...


The Ieee Controversial Policy On Standard Essential Patents – The Empirical Record Since Adoption, 2016 Selected Works

The Ieee Controversial Policy On Standard Essential Patents – The Empirical Record Since Adoption

Ron D. Katznelson

No abstract provided.


A Brave Attempt: Can The National Collegiate Athletic Association Sanction Colleges And Universities With Native American Mascots?, Kenneth B. Franklin 2016 University of Georgia School of Law

A Brave Attempt: Can The National Collegiate Athletic Association Sanction Colleges And Universities With Native American Mascots?, Kenneth B. Franklin

Journal of Intellectual Property Law

No abstract provided.


Do Patent Challenges Increase Competition?, Stephen Yelderman 2016 University of Notre Dame

Do Patent Challenges Increase Competition?, Stephen Yelderman

Journal Articles

As a general rule, judges and scholars believe settlement is a good thing. But for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned long-standing common-law doctrines, declined to enforce otherwise-valid contracts, and—in the recent case of Federal Trade Commission v Actavis, Inc—subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted ...


Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur 2016 Kaye Scholer LLP

Antitrust Jurisprudence In The Second Circuit, Saul P. Morgenstern, Jennifer B. Patterson, Terri A. Mazur

Fordham Law Review

A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants’ real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. This Article collects and describes rulings that reflect such themes in Second Circuit antitrust jurisprudence. The court’s long history in this substantive space, its likely continued exposure to critical antitrust questions, and the importance of this area of the law to our national economy assure that others will be examining and shedding further light ...


Economic Law, Inequality, And Hidden Hierarchies On The Eu Internal Market, Damjan Kukovec 2016 Harvard Law School

Economic Law, Inequality, And Hidden Hierarchies On The Eu Internal Market, Damjan Kukovec

Michigan Journal of International Law

This Article has several aims. First, the aim is to show the continuing importance and relevance of antitrust and international trade lawyers in countering the concentration of power in the hands of the few or in some geographic areas of the world, if some of the assumptions of antitrust and trade are adjusted. Second, the goal is to articulate a particular analysis from the perspective of the (European) periphery. As the recent Euro crises and the near exit of Greece from the Union show, the European prospect of development for all has not arrived. This Article will articulate the privilege ...


The Tbt Agreement’S Failure To Solve U.S. - Cool, Elinore R. Carroll 2016 University of Georgia School of Law

The Tbt Agreement’S Failure To Solve U.S. - Cool, Elinore R. Carroll

Georgia Journal of International & Comparative Law

No abstract provided.


A Priate's Treasure?: Heightened Pleadings Standard For Copyright Infringement Complaints After Bell Atlantic Corp. V. Twombly, Benjamin W. Cheesbro 2016 University of Georgia School of Law

A Priate's Treasure?: Heightened Pleadings Standard For Copyright Infringement Complaints After Bell Atlantic Corp. V. Twombly, Benjamin W. Cheesbro

Journal of Intellectual Property Law

No abstract provided.


Post-Kirtsaeng, 'Material Differences' Between Copyright And Trademark Law's Treatment Of Gray Goods Persist, Charles E. Colman 2016 NYU School of Law

Post-Kirtsaeng, 'Material Differences' Between Copyright And Trademark Law's Treatment Of Gray Goods Persist, Charles E. Colman

Charles Colman

The U.S. Supreme Court’s recent ruling in Kirtsaeng v. John Wiley & Sons would seem no trivial event for stakeholders in content-reliant industries. The upshot of the Court’s decision — that the Copyright Act cannot be used to prevent the unauthorized importation of copies of works, even if manufactured abroad, whose “first sale” has already occurred — will, at least initially, throw a wrench into many companies’ existing business models.

As one would expect, commentary on the decision has been extensive. With few exceptions, however, commentators attempting to predict the impact of Kirtsaeng have not looked beyond copyright law to ...


The Hidden Costs Of Free Goods: Implications For Antitrust Enforcement, Michal S. Gal, Daniel L. Rubinfeld 2016 University of Haifa

The Hidden Costs Of Free Goods: Implications For Antitrust Enforcement, Michal S. Gal, Daniel L. Rubinfeld

Daniel L. Rubinfeld

Today a growing number of goods and services are provided in the marketplace free of charge; indeed, free or the appearance of free, have become part of our ecosystem. More often than not, free goods and services provide real benefits to consumers and are clearly pro-competitive. Yet free goods may also create significant costs. We show that despite the fact that the consumer does not pay a direct price, there are indirect prices that reflect the opportunity cost associated with the consumption of free goods. These indirect costs can be overt or covert, in the same market in which the ...


Shareholder Wealth Maximization As Means To An End, Robert P. Bartlett, III 2016 Selected Works

Shareholder Wealth Maximization As Means To An End, Robert P. Bartlett, Iii

Robert Bartlett

In several recent cases, the Delaware Chancery Court has emphasized that where a conflict of interest exists between holders of a company’s common stock and holders of its preferred stock, the standard of conduct for directors requires that they strive to maximize the value of the corporation for the benefit of its common stockholders rather than for its preferred stockholders. This article interrogates this view of directors’ fiduciary duties from the perspective of incomplete contracting theory. Building on the seminal work of Sanford Grossman and Oliver Hart, incomplete contracting theory examines the critical role of corporate control rights for ...


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