Law Commons^™

Reexamining The Role Of Illinois Brick In Modern Antitrust Standing Analysis, Jeffrey L. Harrison

UF Law Faculty Publications

This Article argues that it is time for either the Court or Congress to reexamine Illinois Brick for the purpose of reconciling it with more general principles of antitrust standing. The overall goals of such an endeavor would be to ensure consistent treatment of similarly situated potential plaintiffs and to rationalize private antitrust enforcement.

The Evolution Of United States Antitrust Law: The Past, Present, And (Possible) Future, Albert A. Foer, Robert H. Lande

All Faculty Scholarship

As the world’s nations rapidly move from systems in which central planning and monopoly are replaced by free markets,2 it becomes increasingly valuable to consider the histories of competition policy experienced in different nations, on a comparative basis.3 In this article, we focus on the history of antitrust in the United States, the first nation to develop and fully-articulate a competition policy, drawing out themes that may be useful to other countries as they contemplate the shape and direction of their own competition regimes. We show that the American competition policy has reflected an underlying stability and bi-partisanship, but that …

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Faculty Publications

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise …

Questioning Traditional Antitrust Presumptions: Price And Non-Price Competition In Hospital Markets, Peter J. Hammer

Law Faculty Research Publications

Hospital mergers challenge basic assumptions about the effects of market power in the health care industry. Antitrust courts have struggled with claims that hospital mergers may in fact reduce costs and lower prices. This Article assesses the validity of these economic claims in the context of an industry that has undergone radical transformations in recent years. The Article also explores how such arguments should be treated as a matter of antitrust doctrine in an area of the law that relies heavily on market share presumptions and rule-based decision making. The Article contends that courts should employ a total welfare standard …

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Proving The Obvious: The Antitrust Laws Were Passed To Protect Consumers (Not Just To Increase Efficiency), Robert H. Lande

All Faculty Scholarship

Sometimes an entire field goes astray. When its dominant members make a major mistake, an opportunity arises for someone to say, "The emperor has no clothes." This is what happened to the antitrust world during much of the 1970s and 1980s. These circumstances gave me the opening and motivation to write the article that appeared in the Hastings Law Journal in 1982 (Wealth Transfers as the Original and Primary Concern of Antitrust: The Efficiency Interpretation Challenged, hereafter Wealth Transfers).

Monopoly Bundling In Cyberspace: How Many Products Does Microsoft Sell?, Alan J. Meese

Faculty Publications

No abstract provided.

Procompetitive Theories Of Vertical Control, Andy C.M. Chen, Keith N. Hylton

Faculty Scholarship

In this paper, we survey procompetitive theories of vertical arrangements, and examine how these theories could be organized to aid interpretation of antitrust law. Given the ever-expanding body of literature in this area, this is a daunting task which we cannot hope to complete in a single article. Nevertheless, we find a market-structure based survey a helpful approach. We have introduced various procompetitive theories in connection with the market structures in which they are likely to be applicable, though we do not claim they could only operate within a specific market context. Our approach should aid antitrust courts in setting …

Cross-Border Bank Branching Under The Nafta: Public Choice And The Law Of Corporate Groups, Eric J. Gouvin

Faculty Scholarship

This Article examines a question left unresolved after the negotiation of the North American Free Trade Agreement (NAFTA): whether the banks of the member countries should be permitted to engage in the business of banking in the other member countries simply by branching across national borders. Under present law, the United States permits branching subject to extensive restrictions, while Canada and Mexico permit access to their banking markets only by acquisition or establishment of institutions chartered in their countries. While the NAFTA does not provide for unfettered branching across national borders, article 1403(3) of the NAFTA left the issue of …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

International Cooperative Enforcement Agreements And Antitrust Extraterritoriality In The 21st Century, Basil Dominic Udotai

LLM Theses and Essays

It is the focus of this thesis to critically evaluate the cooperative enforcement option proffered by the US authorities with a view to judging its attractiveness to other nations and its adequacy in solving problems posed by extraterritoriality in today's highly liberalized economy. In this regard, we shall see that the various models of cooperative enforcement arrangements adopted within the United States have failed to result in productive bilateral cooperation. This is due in large part, to the commitment of individual countries to satisfying national interests over cooperative obligations arising under the agreements. Because of these insufficiencies, the thesis reiterates …

The Us-European Conflict Over The Internationalization Of Antitrust Law, David J. Gerber

All Faculty Scholarship

No abstract provided.

More Lessons From The Laboratories: Cy Pres Distributions In Parens Patriae Antitrust Actions Brought By State Attorneys General, Susan Beth Farmer

Journal Articles

The structure of the article is outlined in the Table of Contents. First, the article introduces a problem - the denial of an effective remedy for consumers overcharged by antitrust conspiracies, then it describes the legislative solution and identifies the unintended consequences that followed. Next, it proposes two alternative means to resolve the newly discovered issue and, finally, structures a proposed test for courts seeking to order the most efficient and effective remedy for consumers in these cases. The article explains that the Hart-Scott-Rodino Antitrust Improvements Act was adopted to fill a gap in antitrust remedies, which had made treble …

An International Common Law Of Antitrust, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Promoting Innovation Competition Through The Aspen/Kodak Rule, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Antitrust And The Health Care Industry: The View From The Three Branches, Thomas L. Greaney

All Faculty Scholarship

This article provides a critical appraisal of the summer's three major health care antitrust events. The California Dental Association case, the Justice Department's challenge to the Aetna-Prudential merger, and the proposed Quality Health Care Coalition Act of 1999 are likely to have a significant influence on the trajectory of antitrust enforcement in the coming years. The author argues that the reasoning of these precedents suffers from an over reaction to the managed care bogeyman and a lack of attention to sound antitrust jurisprudence. In a postscript, it finds similar shortcomings with the Eighth Circuit's recent decision in FTC & State …

Empirical Methods In Antitrust Litigation: Review And Critique, Jonathan Baker, Daniel Rubinfeld

Articles in Law Reviews & Other Academic Journals

The use of empirical methods in antitrust has been growing at an exponential rate. It is now commonplace for multiple regression and other statistical methods to be utilized in merger cases, especially those involving predictions of the price increases that may result from the strategic decisions of the merging firms. These methods are also prominently employed in civil nonmerger investigations by the federal antitrust enforcement agencies (including price fixing, monopolization, and exclusive dealing cases) and in private litigation (including damage claims and class action suits). This article surveys the methodologies that have been used and the range of questions that …

Econometric Analysis In Ftc V. Staples, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

In mid-1997, a federal district court in Washington, DC, granted the Federal Trade Commission's (FTC's) request for a preliminary injunction blocking the proposed merger of Staples and Office Depot (Federal Trade Commission v. Staples, Inc. [hereafter, Staples] 1997a). The transaction would have combined two of the nation's three leading office superstore chains. The firms chose not to pursue the case further after the preliminary injunction was issued, thus giving up on their efforts to merge.

Notes On Trademark Monopolies, Wendy J. Gordon, Glynn S. Lunney Jr.

Scholarship Chronologically

Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid- 1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlain became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlain argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively …

The Antitrust Duty To Deal And Intellectual Property Rights, James C. Burling, William F. Lee, Anita K. Krug

Articles

This Article discusses how courts have addressed so-called ‘"duty-to-deal" antitrust claims involving intellectual property, and what they should do in those circumstances to ensure appropriate deference to the competition goals of intellectual property doctrine.

Part II discusses duty-to-deal principles in the general case, where intellectual property rights are not at issue, noting that hard and fast rules have yet to emerge.

Part III discusses the approaches courts have taken in the intellectual property context and contends that, although many courts have conducted their analyses with a view to the objectives of patent law, at least two have not, with potentially …

Unnatural Competition? Applying The New Antitrust Learning To Foster Competition In The Local Exchange, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Defensive Leveraging In Antitrust, Robin Feldman

Faculty Scholarship

No abstract provided.

The Midas Touch: The Lethal Effect Of Wealth Maximization, Jeanne L. Schroeder

Articles

No abstract provided.

Liberty And Antitrust In The Formative Era, Alan J. Meese

Faculty Publications

No abstract provided.

Economic Theory, Trader Freedom And Consumer Welfare: State Oil Co. V. Khan And The Continuing Incoherence Of Antitrust Doctrine, Alan J. Meese

Faculty Publications

No abstract provided.

When Is Property Intellectual: The Leveraging Problem Essays, Mark R. Patterson

Faculty Scholarship

Patents and copyrights protect inventions and expression; they do not protect products. This distinction, I argue in this essay, is a key to the antitrust problem of the "leveraging" of intellectual property. In a typical leveraging case, the manufacturer of a durable good, like a copier or computer, refuses to sell replacement parts for its equipment unless the purchaser also hires the manufacturer to service the equipment. Such a practice can be illegal under antitrust law, but when the leveraging products-in this example, replacement parts-are protected by patent or copyright, the manufacturer will often claim that the leveraging is a …

Ii Prodotto Di Marca E Ii Suo Mercato Derivato, Rudolph J.R. Peritz

Articles & Chapters

The essay describes the most meaningful recent decisions of the Supreme Court of the United States and of lower courts on single brand aftermarkets for replacement parts and services, putting into historical context the market economics that inspires current antitrust jurisprudence. Particularly, it shows that the .post-classical approach has never entirely superceded neo-classical doctrines. Rather, several shifting tides of theory have swept, and still sweep, over the domain of antitrust doctrine influencing the debate unevenly.

The Boeing-Mcdonnell Douglas Merger: Competition Law, Parochialism, And The Need For A Globalized Antitrust System, Kathleen Luz

Faculty Scholarship

On July 1, 1997, the Federal Trade Commission (FTC) closed its investigation of the merger of the Boeing Company (Boeing) and the McDonnell Douglas Corporation (McDonnell Douglas), essentially approving the merger. The proposed $14 billion merger was quite significant, as it would unite the first and third largest civil aircraft companies in the world. Although the proposed merger had passed muster under U.S. antitrust laws, Boeing still faced the obstacle of gaining approval from the European Commission (EC), the antitrust enforcement agency of the European Union (EU). The EC initially sought to reject the merger and to levy heavy penalties …

Policy Watch: Developments In Antitrust Economics, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

During the late 1970s and 1980s, the federal courts transformed antitrust rules and the federal enforcement agencies altered their case selection criteria in response to theories developed by industrial organization economists. These developments in economic thinking, often associated with the Chicago school, led current antitrust law and practice toward a greater skepticism about the relationship between market concentration and market power and a greater recognition of the possible efficiency-enhancing role of vertical agreements (contracts between firms and their customers or suppliers) than was present in the 1950s and 1960s.This survey will begin where those developments leave off by highlighting more …