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Articles 1 - 17 of 17
Full-Text Articles in Law
Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein
Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein
Faculty Scholarship
Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Faculty Scholarship
Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether. Additionally, statutory efforts to provide formal guidance and restrictions on monitorships have stalled and published bar guidance has taken a nonbinding advisory form. …
Pharmaceutical M&A Activity: Effects On Prices, Innovation, And Competition, Barak D. Richman, Will Mitchell, Elena Vidal, Kevin Schulman
Pharmaceutical M&A Activity: Effects On Prices, Innovation, And Competition, Barak D. Richman, Will Mitchell, Elena Vidal, Kevin Schulman
Faculty Scholarship
The rise of blockbuster pharmaceutical acquisitions has prompted fears that unprecedented market concentration will weaken competition. Two of the most prominent concerns focus on the upstream and downstream ends of the pharmaceutical industry: (1) the concern that these mergers will concentrate the market for discovery and will therefore lead to fewer discoveries; and (2) the concern that merging large marketing, sales, and distribution forces will strengthen the hands of select pharmaceutical manufacturers and weaken downstream competition. Having considered potential dynamic effects in the industry and conducted a series of preliminary interviews with knowledgeable observers, though, this Article argues that neither …
The Ftc Has A Dog In The Patent Monopoly Fight: Will Antitrust’S Bite Kill Generic Challenges?, Jennifer D. Cieluch
The Ftc Has A Dog In The Patent Monopoly Fight: Will Antitrust’S Bite Kill Generic Challenges?, Jennifer D. Cieluch
Duke Law & Technology Review
Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being that patents’ grant of exclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been found in the patent cases. But after the Supreme Court’s holding in FTC v. Actavis, brand name pharmaceutical companies may need to be more cautious when settling Hatch-Waxman litigation with potential patent infringers. Both brand-name drug manufacturers and generic drug manufacturers have incentives to settle cases by having the brand-name pay the generic in exchange for delaying their entry into the market. While courts …
Markets, Morals, And Limits In The Exchange Of Human Eggs, Kimberly D. Krawiec
Markets, Morals, And Limits In The Exchange Of Human Eggs, Kimberly D. Krawiec
Faculty Scholarship
No abstract provided.
Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec
Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec
Faculty Scholarship
In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.
Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, …
The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman
The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman
Faculty Scholarship
A major shift is transforming the trade and environment field, triggered by governments’ rising use of industrial policies to spark nascent renewable energy industries and to restrict exports of certain minerals in the face of political economy constraints. While economically distorting, these policies do produce significant economic and environmental benefits. At the same time, they often violate World Trade Organization (WTO) rules, leading to increasingly harsh conflicts between trading partners.
This Article presents a comprehensive analysis of these emerging conflicts, arguing that they represent a sharp break from past trade and environment disputes. It examines the causes of the shift …
Elhauge On Tying: Vindicated By History, Barak D. Richman, Steven W. Usselman
Elhauge On Tying: Vindicated By History, Barak D. Richman, Steven W. Usselman
Faculty Scholarship
No abstract provided.
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Faculty Scholarship
America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …
Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman
Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman
Faculty Scholarship
Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate …
Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum
Jurisdiction And Choice Of Law In International Antitrust Law - A Us Perspective, Ralf Michaels, Hannah L. Buxbaum
Faculty Scholarship
No abstract provided.
Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First
Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First
Faculty Scholarship
Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related lawsuits” …
The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman
The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman
Faculty Scholarship
Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so …
A Careful Examination Of The Live Nation-Ticketmaster Merger, Barak D. Richman, Alan J. Meese
A Careful Examination Of The Live Nation-Ticketmaster Merger, Barak D. Richman, Alan J. Meese
Faculty Scholarship
As great admirers of The Boss and as fans of live entertainment, we share in the popular dismay over rising ticket prices for live performances. But we have been asked as antitrust scholars to examine the proposed merger of Live Nation and Ticketmaster, and we do so with the objectivity and honesty called for by The Boss’s quotes above. The proposed merger has been the target of aggressive attacks from several industry commentators and popular figures, but the legal and policy question is whether the transaction is at odds with the nation’s antitrust laws.
One primary source of concern to …
The Antitrust Of Reputation Mechanisms: Institutional Economics And Concerted Refusals To Deal, Barak D. Richman
The Antitrust Of Reputation Mechanisms: Institutional Economics And Concerted Refusals To Deal, Barak D. Richman
Faculty Scholarship
An agreement among competitors to refuse to deal with another party is traditionally per se illegal under the antitrust laws. But coordinated refusals to deal are often necessary to punish wrongdoers, and thus to deter undesirable behavior that state-sponsored courts cannot reach. When viewed as a mechanism to govern transactions and induce socially desirable cooperative behavior, coordinated refusals to deal can sustain valuable reputation mechanisms. This paper employs institutional economics to understand the role of coordinated refusals to deal in merchant circles and to evaluate the economic desirability of permitting such coordinated actions among competitors. It concludes that if the …
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Faculty Scholarship
Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …
Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray
Rebuilding Illinois Brick: A Functionalist Approach To The Indirect Purchaser Rule, Barak D. Richman, Christopher R. Murray
Faculty Scholarship
The landmark case of Illinois Brick Co. v. Illinois, which denied standing to indirect purchasers to sue antitrust violators, has been subjected to steady and widespread criticism since it was decided in 1977. Despite three decades of dissatisfaction, however, debate over indirect purchaser standing has failed to generate satisfying solutions that meet the objectives of antitrust law and reflect its underlying principles. We attribute the lack of creative alternatives to an undue emphasis on legal formalism, fostered both by the Supreme Court's elaboration of the indirect purchaser rule and the doctrine's failure to recognize the pervasiveness of multilayer supply chains. …