Law Commons^™

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure …

Conspiracy Allegations In The Stock Loan Market: Why Plaintiffs Should Be Seeking A Remedy In Congress And Not In Court, Danielle P. Katz

Et Cetera

This Article first provides a comprehensive analysis of conspiracy allegations in over-the-counter markets, focusing on the stock loan market as an exemplar.

Multiple conspiracy claims, implicating antitrust law, have been brought regarding over the counter markets since the financial crisis of 2008. The biggest banks in the country have been the center of novel complaints, new regulations, and innovative legislation in the recent years. But, despite regulation and legislation, Sherman Act litigation alleging conspiracy has endured as plaintiffs claim that big banks are conspiring to fix markets when, in fact, they are exercising economies of scale to provide unique, tailored …

A Quest For Consistency: The Meaning Of 'Direct' In The Foreign Trade Antitrust Improvements Act, Richard Lobas

Global Business Law Review

This note argues that the United States courts need to apply a more consistent interpretation of the meaning of "direct" within the context of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA serves to apply U.S. antitrust law, specifically the Sherman Act, to trade or commerce with foreign nations. One scenario in which this law may be applied is when trade or commerce with a foreign nation has a "direct, substantial, and reasonably foreseeable" effect on domestic commerce. However, courts purport to apply different standards to determine whether an effect is direct, leading to confusion and inconsistency. Contributing to …

Why Copperweld Was Actually Kind Of Dumb: Sound, Fury, And The Once And Still Missing Antitrust Theory Of The Firm?, Chris Sagers

Law Faculty Articles and Essays

Since even before Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), it has been thought that antitrust needs some "theory of the firm" to inform its application of a "single-entity" defense in Sherman Act section 1 litigation. Not only is that sense mistaken, it is emblematic of the deep misdirection of contemporary antitrust. It shows just how far antitrust has forgotten that it is a law, a practical tool to implement policy choices made through our system of government. Much too much of the time, it seems to fancy itself rather an abstract policy seminar to be …

How Mfn Clauses Used In The Health Care Industry Unreasonably Restrain Trade Under The Sherman Act, Beth Ann Wright

Journal of Law and Health

When used in the health care industry, an MFN clause is a contractual agreement that guarantees a health insurer the same best price as their market competitors. MFN clauses have the effect of unnecessarily raising consumer costs, reducing choice among providers, constraining access to care and preventing the development of alternative health care delivery models. The purpose of this paper is four-fold. First, to design a four-quadrant matrix to evaluate the pro-competitive and anticompetitive purpose and effects of MFN clauses under Section 1 of the Sherman Act. Second, to defeat the jurisprudential presumption that MFN clauses are pro-competitive in the …

Can Cleveland Clinic Health System Be Trusted: Whether A Proposed Merger Or Acquisition By Cleveland Clinic Health System Will Substantially Impair The Competitive Health Care Market In Northeast Ohio Resulting In A Violation Of Federal Antitrust Statutes, Matthew T. Polito

Journal of Law and Health

This article analyzes the implications of the Clayton Antitrust Act (Clayton Act) and the Sherman Antitrust Act (Sherman Act) as they pertain to the Cleveland Clinic Health System (CCHS). Part One provides background analysis of these two statutes, and the application of those statutes to mergers in the health care industry. Part Two discusses the elements needed to prove the government's prima facie case. This consists of a discussion of a relevant market, which includes the product and geographic markets. This section also contains a description and analysis of market concentration, measured by the Herfindahl-HIrschman Index (HHI). Part Three provides …