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Full-Text Articles in Law
The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna
The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna
Washington Law Review
The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …
Teamwork Or Collusion? Changing Antitrust Law To Permit Corporate Action On Climate Change, Dailey C. Koga
Teamwork Or Collusion? Changing Antitrust Law To Permit Corporate Action On Climate Change, Dailey C. Koga
Washington Law Review
In an era of apprehension about climate change and the future of our planet, private companies are increasingly recognizing their role in increasing sustainability and lowering carbon emissions. To address this growing concern, some industry leaders are taking unilateral action to implement sustainable practices, but other companies have made agreements to fight emissions together. However, the Sherman Antitrust Act forbids agreements in restraint of trade. Further, antitrust law traditionally has refused to recognize ethical or moral justifications as legitimate reasons to permit anticompetitive agreements. As society’s concern for the planet grows and elected leaders move slower than needed to address …
All Bets Are Off: Preempting Major League Baseball’S Monopoly On Sports Betting Data, Beatrice Lucas
All Bets Are Off: Preempting Major League Baseball’S Monopoly On Sports Betting Data, Beatrice Lucas
Washington Law Review
Major League Baseball is in the process of collectivizing data used in sports betting. This could be exempt from antitrust scrutiny if the conduct falls within the “business of baseball.” Such an exemption raises the question of whether collecting official league data is sufficiently attenuated from the “business of baseball” to be subject to antitrust law, and if so, whether MLB violates the Sherman Act by excluding competitors from the league data market. This Comment makes a two-fold argument. First, it argues that the “business of baseball” should be constrained to cover activities directly linked to putting on baseball games. …
Externalities And The Common Owner, Madison Condon
Externalities And The Common Owner, Madison Condon
Washington Law Review
Due to the embrace of modern portfolio theory, most of the stock market is controlled by institutional investors holding broadly diversified economy-mirroring portfolios. Recent scholarship has revealed the anti-competitive incentives that arise when a firm’s largest shareholders own similarly sized stakes in the firm’s industry competitors. This Article expands the consideration of the effects of common ownership from the industry level to the market portfolio level and argues that diversified investors should rationally be motivated to internalize intra-portfolio negative externalities. This portfolio perspective can explain the increasing climate change related activism of institutional investors, who have applied coordinated shareholder power …
Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson
Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson
Washington Law Review
Information is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …
Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier
Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier
Washington Law Review
This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power …
Navigating Through The Fog Of Vertical Merger Law: A Guide To Counselling Hospital-Physician Consolidation Under The Clayton Act, Thomas L. Greaney, Douglas Ross
Navigating Through The Fog Of Vertical Merger Law: A Guide To Counselling Hospital-Physician Consolidation Under The Clayton Act, Thomas L. Greaney, Douglas Ross
Washington Law Review
Lawyers assessing legality under the antitrust laws of hospital acquisitions of physician practices face a quandary. The case law is sparse, federal enforcement guidance outdated, and academic input conflicting. Applying these muddled standards in the rapidlyevolving health care sector only magnifies the uncertainty. While most transactions will be competitively neutral or beneficial, rapidly evolving market conditions causing integration between hospitals and physicians present opportunities for consolidations that may harm consumer interests. Indeed, given the highly concentrated structure of many hospital markets in the nation, preemptive acquisitions of physician practices may be a tempting strategy for some to undermine competition. This …
Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier
Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier
Washington Law Review
This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power …
"To Say The Greatest Matters In The Simplest Way": A "First Economic Injury" Rule As A Restatement Of Directness Standing Requirements In Federal Antitrust Law, Christopher B. Durbin
"To Say The Greatest Matters In The Simplest Way": A "First Economic Injury" Rule As A Restatement Of Directness Standing Requirements In Federal Antitrust Law, Christopher B. Durbin
Washington Law Review
In addition to traditional constitutional standing analysis, federal antitrust law examines a potential plaintiff's claims under a series of specialized standing requirements. One of these requirements is that the plaintiff's injury be a "direct" result of the antitrust violator's misconduct. This requirement has been prominent in recent tobacco litigation where union health care trust funds sued the major tobacco companies in antitrust to recover the costs of treating nicotine-addicted beneficiaries. Federal courts generally denied standing to the trust funds for several reasons, one of which was the trust funds' failure to satisfy the directness requirements. This Comment analyzes the tests …
A Proposed Antitrust Approach To The Conduct Of Retailers, Dealers, And Other Resellers, Thomas A. Piraino Jr.
A Proposed Antitrust Approach To The Conduct Of Retailers, Dealers, And Other Resellers, Thomas A. Piraino Jr.
Washington Law Review
The market power of retailers, resellers, and dealers has increased substantially in recent years as the result of innovations in distribution such as the superstores, mass merchandisers, and warehouse clubs. Consequently, the balance of power in many industries has begun to shift from the supplier to the resale level. Although courts have well-developed means of analyzing the competitive conduct of suppliers and consumers, they have been unable to decide how to treat resellers' competitive conduct. This Article proposes the adoption of a traditional antitrust approach, the "ancillary restraints analysis," to the conduct of resellers. Under this approach, courts would recognize …
Unilateral Refusals To Deal In Intellectual Property After Image Techical Services, Inc. V. Eastman Kodak Co., Brian F. Ladenburg
Unilateral Refusals To Deal In Intellectual Property After Image Techical Services, Inc. V. Eastman Kodak Co., Brian F. Ladenburg
Washington Law Review
While the Federal Patent and Copyright Acts give patent and copyright holders limited exclusive rights in intellectual property, the Sherman Act prohibits combinations or conspiracies that restrain trade and monopolization. Although firms possessing intellectual property generally exercise their statutory exclusionary rights without running afoul of the antitrust laws, conduct may plausibly be authorized by intellectual property law but forbidden by antitrust. In construing the two statutory schemes, federal courts have generally held that conduct authorized by the intellectual property laws, in the absence of some further inculpatory action, cannot form the basis for antitrust liability. The Ninth Circuit departed from …
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
"Speculative" Antitrust Damages, Roger D. Blair, William H. Page
Washington Law Review
The most important antitrust penalties are treble damage awards based on the individual harms that violations cause. For these penalties to function as an economically rational deterrent, there must be a practical mechanism for proving individual harm, and for distinguishing such harm from "speculation." In this article, the authors present an account of that mechanism. First, they argue that the law's measure of antitrust damages is based on a standard of net individual harm that is qualified in certain cases by a principle of net social harm. Net harm is measured by the difference between the plaintiff's actual condition (given …
Reflections On Eastman Kodak Co. V. Image Technical Services, Inc.: Continued Confusion Regarding Tying Arrangements And Antitrust Jurisprudence, Daniel E. Lazaroff
Reflections On Eastman Kodak Co. V. Image Technical Services, Inc.: Continued Confusion Regarding Tying Arrangements And Antitrust Jurisprudence, Daniel E. Lazaroff
Washington Law Review
This Article begins with a brief history of the Supreme Court's often unclear and contradictory treatment of tying arrangements. Against this historical background, the discussion then turns to an analysis of the majority and dissenting opinions in Kodak in part I. Part IV focuses on the important legal questions left unresolved by Kodak and considers its impact on existing tying doctrine. Finally, the Article discusses possible alternative approaches to existing tying analysis. The pervading theme of the Article is that the Supreme Court has missed an opportunity to articulate a clearer, more workable rule regarding tie-ins. While the actual result …
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Clayton Act Scrutiny Of Nonprofit Hospital Mergers: The Wrong Rx For Ailing Institutions, David L. Glazer
Washington Law Review
The Sherman and Clayton antitrust laws have long been used to challenge anticompetitive mergers between for-profit entities. Recently, the federal government began challenging mergers between nonprofit hospitals under the Clayton Act. Two federal circuit courts are divided on whether nonprofit mergers are subject to Clayton Act scrutiny. This Comment examines the statutory interpretations and the policy arguments suggested by the two cases, and concludes that the Clayton Act does not, and should not, apply to nonprofit hospital mergers.
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Washington Law Review
Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Can Subsidiaries Be "Purchasers" From Their Parents Under The Robinson-Patman Act? A Plea For A Consistent Approach, John Huddleston
Washington Law Review
Should a parent corporation be allowed to discriminate in favor of its wholly-owned subsidiary? Courts have long grappled with this question when interpreting section 2(a) of the Robinson-Patman Act (the "Act"). Section 2(a) prohibits price discrimination between "different purchasers." If the subsidiary corporation is a "different purchaser" when it purchases goods from its parent, then the parent violates the Robinson-Patman Act by discriminating in the subsidiary's favor. Many courts, when faced with this issue, have ruled that the parent and subsidiary are per se parts of a single entity. The Fifth Circuit was the first court to adopt this per …
The Sovereign Compulsion Defense In Antitrust Actions And The Role Of Statements By Foreign Governments, Steven J. Hawes
The Sovereign Compulsion Defense In Antitrust Actions And The Role Of Statements By Foreign Governments, Steven J. Hawes
Washington Law Review
Large numbers of export cartels and increasing governmental involvement in commerce present the potential for greater conflicts between United States antitrust law and the decrees of foreign governments. Sovereign compulsion as a defense to antitrust complaints is one method for dealing with the contradictory obligations imposed on private parties where such conflicts exist. Sovereign compulsion has been discussed by courts and commentators many times in recent years, yet the limits of the defense and the requirements for its application remain unclear. To demonstrate a sovereign compulsion defense, defendants must show that their actions, although possibly in violation of United States …
The Demise Of The Intra-Enterprise Conspiracy Doctine: Flexible Antitrust Enforcement Policy Abandoned In A Maze Of Economic Certainty—Copperweld Corp. V. Independence Tube Corp., 104 S. Ct. 2731 (1984), S. John Goodwin
Washington Law Review
In Copperweld Corp. v. Independence Tube Corp. the United States Supreme Court held that corporations and their wholly owned subsidiaries cannot conspire and, thus, cannot violate section 1 of the Sherman Act. The decision signals an important shift in interpretation of the Sherman Act. Before Copperweld, corporations and their wholly owned subsidiaries were subject to conspiratorial liability under the Act. The Supreme Court had recognized intra-enterprise conspiracies on at least six occasions. Despite their diverging views on how broadly the doctrine was to be interpreted, the federal courts of appeals had unanimously applied the doctrine. The Court implicitly addressed the …
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Streamlining Antitrust Litigation By "Facial Examination" Of Restraints: The Burger Court And The Per Se-Rule Of Reason Distinction, Edward Brunet
Washington Law Review
Against a backdrop of a definitional skepticism, this article focuses on the important Burger Court contribution to the per se and rule of reason approaches. The Burger Court now requires a facial examination of antitrust restraints that may improve the lethargic process of antitrust litigation. Much of the article concerns the differences between the per se and rule of reason tests. The Burger Court's decisions, however, require that careful attention be given to the similar and complementary features of the rule of reason and per se methods. The article examines carefully the methodologies courts employ to classify alleged restraints as …
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Antitrust Sanctions And Remedies: A Comparative Study Of German And Japanese Law, John O. Haley
Washington Law Review
The legal systems of the Federal Republic and Japan have much in common. The basic institutions and concepts of German civil, criminal, and administrative law provided the principal models for Japan's legal reforms during the late nineteenth and early twentieth centuries. Contemporary legislation and doctrinal changes in the Federal Republic also continue to influence Japanese legal developments. Despite the American origins of Japanese antitrust legislation, which was drafted by Americans and imposed during the Occupation on a less than enthusiastic Japanese government, the influence of German law and practice on Japanese antitrust law, at least since 1953, has been profound. …
Restricted Distribution Contracts And The Opportunistic Pursuit Of Treble Damages, Henry N. Butler
Restricted Distribution Contracts And The Opportunistic Pursuit Of Treble Damages, Henry N. Butler
Washington Law Review
The analysis presented in this article addresses the narrow issue of the effects of potential treble damage actions on the behavior of contractually-related manufacturers and distributors. Part II of this article presents the notion of opportunistic behavior, which has influenced much of the economic analysis and the Supreme Court's recent treatment of vertical nonprice restraints. The transformation of the threat of opportunism into socially-wasteful expenditures of resources is also discussed. Part III examines the problematic role of opportunism in the distribution of goods, restricted distribution practices that aim to solve the problem, and the antitrust treatment of such restricted distribution …
Antitrust Problems In International Technology Transfers—United States V. Westinghouse Electric Corp., 648 F.2d 642 (9th Cir. 2981), Christina Marie Ager
Antitrust Problems In International Technology Transfers—United States V. Westinghouse Electric Corp., 648 F.2d 642 (9th Cir. 2981), Christina Marie Ager
Washington Law Review
In 1970 the Department of Justice brought an antitrust action against Westinghouse Electric Corporation and two Japanese corporations, Mitsubishi Electric Corporation (MELCO) and Mitsubishi Heavy Industries Ltd. (MHI) (together Mitsubishi). The government alleged violations of section 1 of the Sherman Act. Since 1923 the defendants or their predecessors had a series of technology-sharing agreements under which Westinghouse granted licenses of its Japanese patents to Mitsubishi. It excluded its counterpart patents in the United States and Canada from the agreements. The government contended that Mitsubishi had become so dependent on Westinghouse technology because of the technology-sharing agreements that it could not …
Antitrust And Health Care—Psychologists Entitled To Blue Shield Reimbursement—Virginia Academy Of Clinical Psychologists V. Blue Shield Of Virginia, 624 F.2d 476 (4th Cir. 1980), Cert. Denied 450 U.S. 916 (1981), Donna M. Moniz
Washington Law Review
In Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, the Fourth Circuit Court of Appeals held that Blue Shield violated section 1 of the Sherman Antitrust Act because Blue Shield refused to pay psychologists who did not bill through physicians. The court held that Blue Shield constituted a conspiracy of individual physicians acting to reduce competition in the delivery of psychotherapeutic services. This holding significantly enhances the ability of psychologists and other licensed health care providers to compete with physicians. This Note discusses Virginia Academy in light of the pertinent antitrust doctrines. It approves the Fourth Circuit's holding …
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Purpose And Effect In Sherman Act Conspiracies, Richard A. Wirtz
Washington Law Review
The Gypsum decision supplies the proper occasion for a renewed effort to sort out and line up the Court's pronouncements since Trans-Missouri concerning the respective functions in cases arising under section 1 of proof of anticompetitive purpose and effect. Once this is done, a reasonably coherent body of doctrine emerges and the unresolved issues come more clearly into focus. The first two sections of this article deal with purpose and effect as determinants, respectively, of "restraint of trade" and of "contract, combination . . . and conspiracy." The third section takes up the problems that arise when the doctrine that …
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
The Antitrust Consequences Of Manufacturer-Suggested Retail Prices—The Case For Presumptive Illegality, William R. Andersen
Washington Law Review
A manufacturer's suggestion of resale prices to dealers is an example of price-affecting conduct which is said to create no antitrust liability despite the fact that liability would result from identical conduct if the parties were horizontally related. This article argues that permitting parties to tamper with the price term in any fashion risks contravention of the policies behind the antitrust laws, and that making the antitrust consequence turn on whether the parties appear to be related vertically or horizontally is not an intelligible way of minimizing that risk. In conclusion it is recommended that suggested prices should be presumptively …
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
The Economics Of The Joint Antitrust Dissents Of Justices Harlan And Stewart, Ray O. Werner
Washington Law Review
Professor Werner presents a chronological study of the antitrust dissents authored by Justices Harlan and Stewart in an attempt to identify the minority rationale which may guide the Court's future antitrust decisions. Analyzing these dissenting opinions against the economic criteria of industry structure, conduct and performance, Professor Werner concludes that the dissenters focus primarily on industry performance while showing some concern for the structure of the industry. The author views the dissenters as strict constructionists and believes that their conservative economic orientation may emerge as the antitrust philosophy of the Nixon appointees to the United States Supreme Court.
Section 7 Of The Clayton Act As A Tool To Curtail Conglomerate Acquisitions Of Insurance Companies, Roland W. Johnson
Section 7 Of The Clayton Act As A Tool To Curtail Conglomerate Acquisitions Of Insurance Companies, Roland W. Johnson
Washington Law Review
Mergers of insurance companies with corporations which do not write insurance pose a substantial threat both to competition and to the resource allocating capability of the economy. This comment indicates that an attack on these mergers under the federal anti-trust laws will not be prevented by the McCarran-Ferguson Act. The comment also analyzes the possible application of Section 7 of the Clayton Act to conglomerate insurance mergers and evaluates possible attacks based on the principles covering vertical mergers, transfer of market power, and reciprocity.
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Washington Law Review
Mr. Reiley analyzes Washington's complex Unfair Practices Act from the strengths and weaknesses of the defendant's position by tracing the various requirements and defenses of the act under two recent Washington Supreme Court decisions. To facilitate effective enforcement he offers specific suggestions for future interpretation of the act. Mr. Reiley especially urges that the intent to injure requirement be interpreted to require nothing more than proof of injury to a competitor and that the meeting competition defense be limited to require a seller to have actual knowledge of his competitor's current prices and their legality
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Enforcement Of Legislation Prohibiting Sales Below Cost In Washington, Eldon H. Reiley
Washington Law Review
Mr. Reiley analyzes Washington's complex Unfair Practices Act from the strengths and weaknesses of the defendant's position by tracing the various requirements and defenses of the act under two recent Washington Supreme Court decisions. To facilitate effective enforcement he offers specific suggestions for future interpretation of the act. Mr. Reiley especially urges that the intent to injure requirement be interpreted to require nothing more than proof of injury to a competitor and that the meeting competition defense be limited to require a seller to have actual knowledge of his competitor's current prices and their legality
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Ftc Preliminary Relief Powers Under Section 7 Of The Clayton Act, Anon
Washington Law Review
Respondents Dean Foods Company and Bowman Dairy Company, substantial competitors in the sale of packaged milk, planned to merge. Dean was to purchase substantially all of Bowman's assets and Bowman was to cease doing business. The Federal Trade Commission, after issuing a formal complaint under section 7 of the Clayton Act and section 5 of the Federal Trade Commission Act, applied to the Seventh Circuit Court of Appeals for a preliminary injunction to maintain the status quo until the Commission could hold hearings to determine the legality of the merger. Dismissal of the Commission's petition was appealed to the Supreme …