Law Commons^™

Home-Field Disadvantage: How The Organization Of Soccer In The United States Affects Athletic And Economic Competitiveness, Carolina I. Velarde

Michigan Law Review

The United States men’s soccer team failed to qualify for the 2018 World Cup. In the aftermath, soccer followers questioned the organizational structure supervised by the United States Soccer Federation. An analysis of the relationships between professional soccer leagues reveals potentially anticompetitive practices that may contribute to the subpar performance of the U.S. Men’s National Team. This Note argues that the United States Soccer Federation is engaged in economically anticompetitive behavior that impedes the development of American soccer. Certain reforms, including an open-league system and player transfer fees at the youth development level, would enhance the economic and athletic competitiveness …

State-Action Immunity And Section 5 Of The Ftc Act, Daniel A. Crane, Adam Hester

Michigan Law Review

The state-action immunity doctrine of Parker v. Brown immunizes anticompetitive state regulations from preemption by federal antitrust law so long as the state takes conspicuous ownership of its anticompetitive policy. In its 1943 Parker decision, the Supreme Court justified this doctrine, observing that no evidence of a congressional will to preempt state law appears in the Sherman Act’s legislative history or context. In addition, commentators generally assume that the New Deal court was anxious to avoid re-entangling the federal judiciary in Lochner-style substantive due process analysis. The Supreme Court has observed, without deciding, that the Federal Trade Commission might …

Stop Being Evil: A Proposal For Unbiased Google Search, Joshua G. Hazan

Michigan Law Review

Since its inception in the late 1990s, Google has done as much as anyone to create an "open internet." Thanks to Google's unparalleled search algorithms, anyone's ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap …

The Institutions Of Antitrust Law: How Structure Shapes Substance, William E. Kovacic

Michigan Law Review

Daniel Crane's The Institutional Structure of Antitrust Enforcement ("Institutional Structure") may do for antitrust law what Essence of Decision did for public administration. Unlike most literature on antitrust law, this superb volume does not address pressing issues of substantive analysis (e.g., when can dominant firms offer loyalty discounts?). Instead, Institutional Structure studies the design and operation of the institutions of U.S. antitrust enforcement. Professor Crane skillfully advances a basic and powerful proposition: to master analytical principles without deep knowledge of the policy implementation mechanism is dangerously incomplete preparation for understanding the U.S. antitrust system, or any body of competition law. …

Antitrust Rulemaking As A Solution To Abuse On The Standard-Setting Process, Adam Speegle

Michigan Law Review

While many recognize the critical role that technology plays in modern life, few appreciate the role that standards play in contributing to its success. Devices as prevalent as the modern laptop computer for example, may be governed by over 500 interoperability standards, regulating everything from the USB drive to the memory chip. To facilitate adoption of such standards, firms are increasingly turning to standard-setting organizations. These organizations consist of members of an industry who agree to abide by the organization's bylaws, which typically regard topics such as patent disclosure and reasonable licensing. Problems arise, however, when members violate these bylaws …

Unfit For Prime Time: Why Cable Television Regulations Cannot Perform Trinko's 'Antitrust Function', Keith Klovers

Michigan Law Review

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

Shutting The Black Door: Using American Needle To Cure The Problem Of Improper Product Definition, Daniel A. Schwartz

Michigan Law Review

Section 1 of the Sherman Act is designed to protect competition by making illegal any agreement that has the effect of limiting consumer choice. To make this determination, courts first define the product at issue and then consider the challenged restraint's impact on the market in which that product competes. When considering § 1 allegations against sports leagues, courts have tended to define products according to the structure of the leagues. The result of this tendency is that harm to competition between the leagues' teams is not properly accounted for in the courts' analyses. This, in turn, grants leagues a …

Innovative Copyright, Greg Lastowka

Michigan Law Review

For over a decade, Michael Carrier has been exploring the intersection of antitrust and intellectual property ("IP") law, contributing many articles that offer new solutions and approaches to the vexing problems confronting the law of innovation. Carrier's academic writing is situated in a voluminous scholarly discourse about the appropriate rules and goals of the laws of copyright, patent, and antitrust. While Carrier easily could have written an "insider" tome for specialists in this area, his new book, Innovation for the 21st Century, is targeted at a broader audience. Carrier's book is directed at legislators, jurists, and opinion makers-as well as …

Is There A Dormant Extraterritoriality Principle?: Commerce Clause Limits On State Antitrust Laws, Michael J. Ruttinger

Michigan Law Review

State antitrust laws ordinarily supplement federal law by providing a cause of action for anticompetitive activity that occurs in the state. Some states, however, have construed their antitrust regimes to reach conduct that occurs outside the state's boundaries. Such regulation raises significant federalism and Commerce Clause concerns by creating possible extraterritorial liability for conduct with virtually no in-state effect. This Note examines two Commerce Clause standards that may limit the degree to which state antitrust laws may exercise extraterritorial force-the "dormant" or "negative" Commerce Clause and the so-called "Extraterritorial Principle." Unfortunately, the dormant Commerce Clause test, as articulated in Pike …

Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel

Michigan Law Review

In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement …

Reading Too Much Into Reeder-Simco?, Jeremy M. Suhr

Michigan Law Review

This Note argues that a careful analysis of the Supreme Court's opinion in Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. demonstrates that, despite the expansive dicta appearing in part IV of that opinion, the Court did not intend to reshape the course of its Robinson-Patman Act jurisprudence in any significant way. The Court's opinion operated well within the confines of established Robinson-Patman Act doctrine, even if its searching review of the evidence presented at trial represented a rare foray into the arena of factual error correction. After Reeder-Simco, however, many commentators emphasized the dicta in part IV …

What's So Great About Nothing? The Gnu General Public License And The Zero-Price-Fixing Problem, Heidi S. Bond

Michigan Law Review

In 1991, Linus Torvalds released the first version of the Linux operating system. Like many other beneficiaries of the subsequent dot-com boom, Torvalds worked on a limited budget. Clad in a bathrobe, clattering away on a computer purchased on credit, subsisting on a diet of pretzels and dry pasta, hiding in a tiny room that was outfitted with thick black shades designed to block out Finland's summer sun, Torvalds programmed Linux. Like some other beneficiaries of the subsequent dot-com boom, Torvalds created a product that is now used by millions. He owns stock options worth seven figures. Computer industry giants, …

Multinational Antitrust: Lessons From The U.S. Experience, Douglas H. Ginsburg

Michigan Law Review

The globalization of business has resulted in a host of new issues facing antitrust regulators. As they rush to meet the challenges presented by the vastly greater volume of international business transactions, the increasing consolidation of global business operations, and the rapid evolution of computing and communications networks, the regulators leave in their wake an increasingly onerous burden on businesses engaged in international commerce. There is little guidance available, however, to the antitrust neophyte who wants to become familiar with these developments. They, as well as legal and economic scholars, lawyers, and others already steeped in antitrust law - or …

The Anticompetitive Effect Of Passive Investment, David Gilo

Michigan Law Review

There are many cases in which a firm passively invests in its competitor. For example, Microsoft passively invested in $150 million worth of the nonvoting stock of Apple, its historic rival in the operating systems market. Also, in November 1998, Northwest Airlines, the nation's fourth-largest airline, purchased 14% of the common stock of Continental Airlines Inc., the nation's fifth-largest (and fastest growing) airline. Northwest competes with Continental on seven routes, serving 3.6 million passengers per year. In another example, TCI, the nation's largest cable operator, became a passive investor with a 9% stake (which can be increased, under the terms …

Antitrust Standing In Private Merger Cases: Reconciling Private Incentives And Public Enforcement Goals, Joseph F. Brodley

Michigan Law Review

This article examines a vital problem of private antitrust enforcement - the standing of private merger litigants - where the unresolved tension between public antitrust goals and the private interests of litigants threatens enforcement breakdown. Private merger enforcement is at risk not because courts have determined that such enforcement is undesirable, but because courts have failed to see the problem as an issue of systems design requiring effective integration of public and private enforcement. Instead they have focused on particular elements of antitrust standing - feared abuses by wrongly motivated plaintiffs - neglecting system-wide effects and jeopardizing the health of …

Are We Compatible?: Current European Community Law On The Compatibility Of Joint Ventures With The Common Market And Possibilities For Future Development, Alyssa A. Grikscheit

Michigan Law Review

The Commission and commentators note that the potential for reform in the procedural arena is quite great. The current literature discusses the difficulties would-be venturers have in determining if their proposed venture is concentrative or cooperative and the procedural differences between notifications under the two standards.

This Note argues, however, that the substantive differences between the two standards are even more problematic than the procedural ones. Reducing the substantive differences between the two compatibility standards, short of creating a single standard that is unresponsive to the tensions between concentrative and cooperative situations, will have a beneficial impact. Similar standards of …

Controlling The Competitor Plaintiff In Antitrust Litigation, William H. Page, Roger D. Blair

Michigan Law Review

In Misuse of the Antitrust Laws: The Competitor Plaintiff, Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals' costs as an exclusionary practice.

Much in Snyder and Kauper's study is worthy of comment. They have given us a useful picture of private antitrust litigation during the period covered by the sample, one that may be more accurate than a reading of reported cases from that period would suggest. Moreover, their generally critical treatment of the literature on raising rivals' costs is clear …

Scholarship Of The Absurd: Bob Bork Meets The Bald Soprano, Alex Kozinski

Michigan Law Review

A Review of Antitrust Economics on Trial: A Dialogue on the New Laissez-Faire by Walter Adams and James W. Brock

Misuse Of The Antitrust Laws: The Competitor Plaintiff, Edward A. Snyder, Thomas E. Kauper

Michigan Law Review

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. …

Reciprocal Altruism As A Felony: Antitrust And The Prisoner's Dilemma, John Shepard Wiley Jr.

Michigan Law Review

This essay is about the idea of cooperation in antitrust law. At the outset, ·I clarify my terminology. Biologists often refer to reciprocal altruism. "Reciprocal altruism" in the antitrust context has an odd semantic ring. There is nothing altruistic or self-sacrificing about the cooperation that antitrust rules outlaw: cartel price fixing. Firms do it strictly for the money. I prefer the term reciprocity to describe a firm's strategy to pursue behavior that will profit it only if competing firms engage in similar behavior. This usage can create confusion in the present context, however, because reciprocity is also an antitrust term …

A Micro-Microeconomic Approach To Antitrust Law: Games Managers Play, Harry S. Gerla

Michigan Law Review

If we are to gain an accurate perspective on the impact of antitrust laws and policies on the behavior of firms in the real world, we must adopt a micro-microeconomic approach which focuses not on how rational, profit-maximizing firms will theoretically behave, but upon how late twentieth-century American managers and executives actually behave. This article attempts to begin that task.

Part I of this article examines the justifications for focusing on individual managers rather than profit-maximizing firms as the key actors in antitrust law. Part II looks at contemporary management mores and practices and develops some generalized "rules of the …

Workable Antitrust Policy, Frank H. Easterbrook

Michigan Law Review

One of the schools of thought in the economics of antitrust was called "workable competition." The adherents to this school believed that markets were prone to cartelization and that concentration was death on competition, but that occasionally competition might prove "workable." These scholars were suspicious of almost every industrial practice they saw. One of the manifestations of their work came to be known as the "structure-conduct-performance paradigm." The thesis was that you could tell whether competition was feasible from the structure of the market. If the top four firms had fifty percent or so of the sales, we should abandon …

Consumer Beware Chicago, Eleanor M. Fox

Michigan Law Review

Professor Hovenkamp's article, Antitrust Policy After Chicago, reveals an important truth. Chicago School economics does not provide a superior roadmap to efficiency. I would take the critique one step further and assert: The main gap between Chicago and its critics is not even the design of the roadmap to efficiency. The main gap is social and political philosophy.

Rhetoric And Skepticism In Antitrust Argument, Herbert Hovenkamp

Michigan Law Review

In his essay on Workable Antitrust Policy Judge Easterbrook professes an extraordinary skepticism about economic models in general, and particularly about the ability of courts to use economic models to distinguish the competitive from the anticompetitive. But a profession of skepticism is itself a very powerful rhetorical device; it creates a perception of tough-mindedness, of refusal to yield real-world observations to analytic models or other abstractions, of extreme reluctance to accept any proposition that has not been clearly proven. Further, it is always very easy to be a skeptic, because every position ever taken except perhaps for a few tautologies …

Divestiture As A Remedy In Private Actions Brought Under Section 16 Of The Clayton Act, Paul V. Timmins

Michigan Law Review

This Note argues that private parties should be permitted to bring suits for divestiture under section 16 of the Clayton Act. Part I analyzes the language of section 16 and the relevant legislative history of the Clayton Act and concludes that Congress did not intend to limit the injunctive relief available to private parties. Part II argues that courts should be free to exercise their broad equity powers to grant the most appropriate and effective relief, including divestiture, to an injured plaintiff. Finally, Part III contends that policy considerations disfavor omitting divestiture from the types of equitable remedies that a …

The Distinction Between The Scope Of Section 2(A) And Sections 2(D) And 2€ Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note argues that sections 2(d) and 2(e) were meant to cover only disguised discriminations not within the scope of section 2(a). If the seller's conduct falls within the scope of section 2(a), that section must be applied regardless of whether or not the conduct also falls within the language of section 2(d) or 2(e). Only when section 2(a) does not apply is recourse available under sections 2(d) and 2(e). Part I of this Note looks at general antitrust policy, the limitations of the Clayton Act that led to the enactment of the Robinson-Patman Act, and the legislative history of …

Third World Trade Partnership: Supranational Authority Vs. National Extraterritorial Antitrust--A Plea For "Harmonized" Regionalism, Wolfgang Fikentscher

Michigan Law Review

That "Third World countries" should receive the assistance of the "industrialized nations" in increasing the level of their economic development is a matter beyond dispute. Yet the years following the "economic decade" of the 1970's have made apparent a crisis in the concepts underlying this philosophy of Third World assistance. The nature of this crisis has not yet been fully ascertained, and the following text does not undertake that task. Rather, it starts from the general feeling among experts involved in one way or another with "development aid" that the paths so far followed and the methods so far applied …

Competition, Integration And Economic Efficiency In The Eec From The Point Of View Of The Private Firm, Michel Waelbroeck

Michigan Law Review

As early as 1956, experts appointed by the six original Member State governments to investigate measures to pursue integration after the failure of the European Defence Community clearly established this link between the abolition of barriers to trade and an increase in the intensity of competition. In what has come to be known as the "Spaak Report," the experts noted the technology gap then separating Europe from the United States and proposed, as a remedial measure, the creation of a ''vast zone of common economic policy, constituting a powerful production unit, and allowing a continued expansion, and increased stability, an …

Reforming American Antitrust In Foreign Commerce, James A. Rahl

Michigan Law Review

A Review of Antitrust and American Business Abroad (Second Edition) by James R. Atwood and Kingman Brewster

Monopolistic Competition, Second Best, And The Antitrust Paradox: A Review Article, Richard S. Markovits

Michigan Law Review

A Review of The Antitrust Paradox: A Policy at War with Itself by Robert H. Bork