Dispute Settlement Under The Next Generation Of Free Trade Agreements, 2018 University of Miami School of Law
Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen
No abstract provided.
#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 ...
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 ...
Trade Openness And Antitrust Law, 2018 Columbia Law School
Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton
Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears ...
Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, 2018 New York University School of Law
Beyond Brooke Group: Bringing Reality To The Law Of Predatory Pricing, C. Scott Hemphill, Philip J. Weiser
This Feature offers a roadmap for bringing and deciding predatory pricing cases under the Supreme Court’s restrictive Brooke Group decision. Brooke Group requires a plaintiff to show that the defendant set a price below cost and had a sufficient likelihood of recouping its investment in predation. This framework, which was adopted without any contested presentation of its merits, has endured despite its flaws. Beyond this framework, the Court opined in dicta that predation is implausible.
We identify points of flexibility within the Court’s framework that permit an empirically grounded evaluation of the predation claim. Under the price-cost test ...
Patent Pool Outsiders, 2018 Indiana University Maurer School of Law
Patent Pool Outsiders, Michael Mattioli
Articles by Maurer Faculty
Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.
The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics ...
Smart Machines And Smarter Policy: Foreign Investment Regulation, National Security, And Technology Transfer In The Age Of Artificial Intelligence, 51 J. Marshall L. Rev. 279 (2018), 2018 John Marshall Law School
Smart Machines And Smarter Policy: Foreign Investment Regulation, National Security, And Technology Transfer In The Age Of Artificial Intelligence, 51 J. Marshall L. Rev. 279 (2018), Justin Shields
The John Marshall Law Review
No abstract provided.
The “Protection Of The Competitive Process” Standard, 2018 Columbia Law School
The “Protection Of The Competitive Process” Standard, Tim Wu
The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”
After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, 2018 Columbia Law School
After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, Tim Wu
The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?
I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws ...
Vertical Mergers And The Mfn Thicket In Television, 2018 Harvard Law School
Vertical Mergers And The Mfn Thicket In Television, Erik Hovenkamp, Neel U. Sukhatme
Georgetown Law Faculty Publications and Other Works
Increasingly, cable and satellite TV services (known as “MVPDs”) seek to acquire upstream programming creators, as illustrated by AT&T’s recent merger with Time-Warner. At the same time, the pay-TV industry is rife with “most-favored nation” (MFN) agreements, which can sharply constrict the competitive process. The most problematic variety, so-called “unconditional” MFNs, raise serious antitrust concerns, as they may forestall effective entry by new streaming-based platforms; penalize pro-competitive deviations from the status quo; and facilitate de facto coordination among integrated MVPDs.
While vertical mergers in the industry have received significant antitrust attention, the MFN concerns are interrelated. Problematic MFNs may naturally induce a double marginalization problem, even if the parties are otherwise capable of contracting around it. This creates a strong motivation for integration, but it also raises a question as to whether a merger is the only way to avoid double marginalization. Further, MFNs might compel ...
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
Faculty Scholarship at Penn Law
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 ...
Revisiting Net Neutrality, 2017 Boston College Law School
Revisiting Net Neutrality, Daniel A. Lyons
Boston College Law School Faculty Papers
No abstract provided.
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 ...
Actavis And Error Costs: A Reply To Critics, 2017 University of California - Berkeley
Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
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 ...