Law Commons^™

Theory And Practice Of Competition Advocacy At The Ftc, James C. Cooper, Paul A. Pautler, Todd J. Zywicki

George Mason University School of Law Working Papers Series

This article was prepared as part of a recent symposium celebrating the Ninetieth Anniversary of the founding of the Federal Trade Commission. In addition, fall 2004 marks the Thirtieth Anniversary of a pivotal moment in the establishment of the modern advocacy program at the FTC, Chairman Lewis Engman’s speech on the economic burden that inefficient transportation regulation policies were imposing on the American economy. Although the FTC has been involved in advocacy activities since its founding, Engman’s speech symbolized a new aggressiveness on the part of the FTC in using its expertise to work with other governmental actors at all …

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Online Music Joint Ventures: Taken For A Song, Harry First

ExpressO

In 2001 the five major record companies, controlling more than 80 percent of prerecorded music sales in the United States, announced the formation of two joint ventures to distribute music over the Internet. The Department of Justice opened an antitrust investigation into these ventures even before the ventures began their operations. Two and one-half years later the Department announced that it had closed the investigation because its "theoretical concerns ultimately were not supported by the evidence." The Department's investigation, however, focused on the ventures' licensing practices rather than on their formation.

This paper focuses on the formation of the online …

Modern Bootlegging And The Prohibition On Fair Prices: Last Call For The Repeal Of Pharmaceutical Price Gouging, Luke W. Cleland

ExpressO

This article discusses the recent passage of the Medicare Prescription Drug, Modernization and Improvement Act of 2003, and the executive and judicial decisions affecting the ability of the general public to access foreign pharmaceutical markets. The article examines the recent actions taken by the U.S. government, explore various state movements within the United States aimed at reducing pharmaceutical drug prices, outline the process of pharmaceutical drug prices in foreign countries, and advocate for a workable integration of all available mechanisms to feasibly reduce prescription drug prices for the benefit of both U.S. consumers and U.S. drug companies. As avenues to …

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

Designing Sports Leagues As Efficient Monopolists Rather Than Inefficient Cartels, Stephen F. Ross, Stefan Szymanski

ExpressO

An inherent conflict exists when clubs participating in a sports league control the way in which the competition is organized. This conflict leads to fewer franchises that may not be in the best locations, fewer broadcast rights sold with too many “black-outs,” inefficient marketing of merchandise and sponsorships, ineffective supervision of club management, labor market restrictions that do not enhance consumer appeal in the sport, and insufficient international competition. We suggest that sports leagues would be more profitable and fans’ welfare improved if sports leagues looked more like McDonald’s and less like the United Nations, by restructuring the leagues to …

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …

Will The Wto Turn Green? The Implications Of Extending Observer Status To Multilateral Environmental Agreements, Richard L. Skeen

ExpressO

This article addresses whether the WTO should extend permanent observer status to multilateral environmental agreements and analyzes the impact of injecting environmental issues into the multilateral trading system. The paper begins with a chronological analysis of the transition from the GATT governance of international trade to the formation of the WTO and will also examine influences upon the formation and the agenda of the Committee on Trade and the Environment. The discussion continues with a look at the Committee on Trade and the Environment’s first year of progress and discussion of the critical report entitled Special Studies 4: Trade and …

Global Governance, Antitrust, And The Limits Of International Cooperation, Paul B. Stephan

ExpressO

The contemporary world economy make it easier to produce and sell across national borders. The partition of transactions into separate geographical components in turn makes it easier to pick and choose regulatory regimes. Antitrust law has dealt with this problem for nearly a century. At one time it regarded the assignment of a transaction to a particular territory as a prerequisite for the application of its rules; lately it has required much less. As a result, overlapping national regulation has become the dominant structure. Overlapping regulation has its own problems. National regimes may impose inconsistent rules and pursue conflicting ends. …