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Full-Text Articles in Law
Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas
Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas
Michigan Technology Law Review
Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.
This Article argues that despite …
Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus
Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus
University of Michigan Journal of Law Reform
Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental flaws …
An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke
An Examination Of Product Hopping By Brand-Name Prescription Drug Manufacturers: The Problem And A Proposed Solution, Daniel Burke
Cleveland State Law Review
The balance between incentivizing innovation through exclusivity protection and maintaining competitive market conditions—including prices for consumers—is a difficult line to toe. Product hopping has characteristics that constitute a violation of the Sherman Antitrust Act because companies can maintain monopoly power in the pharmaceutical market. While some monopoly power is justified as an incentive for incredibly costly innovation, extended periods of exclusivity harms consumers by keeping prescription drug prices artificially inflated. Allowing generic drug manufacturers to compete sooner in the prescription drug market by disallowing product hopping by name-brand pharmaceutical drug companies will aid in driving down prices. Courts should adopt …
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Georgia Journal of International & Comparative Law
No abstract provided.
Getting A Handle On Growler Laws, Adam Star
Getting A Handle On Growler Laws, Adam Star
Seattle University Law Review
This Note will begin with a brief general history of growlers in the United States and the benefits they provide to consumers, retailers, and small craft brewers. Part II will provide an overview of national alcohol distribution regulation and how the present growler law exists within this larger framework. To complete the necessary background information, Part III will provide context to the competitive landscape by way of an examination of the craft beer industry’s explosive growth. The substantive portion of the Note will follow in Part IV, beginning with an outline of the various key types of growler restrictions such …
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell
Michigan Law Review
In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …
A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi
A Comprehensive Economic And Legal Analysis Of Tying Arrangements, Guy Sagi
Seattle University Law Review
The law of tying arrangements as it stands does not correspond with modern economic analysis. Therefore, and because tying arrangements are so widely common, the law is expected to change and extensive academic writing is currently attempting to guide its way. In tying arrangements, monopolistic firms coerce consumers to buy additional products or services beyond what they intended to purchase. This pressure can be applied because a consumer in a monopolistic market does not have the alternative to buy the product or service from a competing firm. In the absence of such choice, the monopolistic firm can allegedly force the …
Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff
Pay-For-Delay Settlements In The Wake Of Actavis, Michael L. Fialkoff
Michigan Telecommunications & Technology Law Review
“Pay-for-delay” settlements, also known as reverse payments, arise when a generic manufacturer pursues FDA approval of a generic version of a brand-name drug. If a patent protects the brand-name drug, the generic manufacturer has the option of contesting the validity of the patent or arguing that its product does not infringe the patent covering the brand-name drug. If the generic manufacturer prevails on either of these claims, the FDA will approve its generic version for sale. Approval of a generic version of a brand-name drug reduces the profitability of the brand-name drug by forcing the brand-name manufacturer to price its …
The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski
The Case For Rebalancing Antitrust And Regulation, Howard A. Shelanski
Michigan Law Review
The continued growth of forensic DNA databases has brought about greater interest in a search method known as "familial" or "kinship" matching. Whereas a typical database search seeks the source of a crime-scene stain by making an exact match between a known person and the DNA sample, familial searching instead looks for partial matches in order to find potential relatives of the source. The use of a familial DNA search to identify the alleged "Grim Sleeper" killer in California brought national attention to the method, which has many proponents. In contrast, this Article argues against the practice of familial searching …
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Microsoft Tying Consumers' Hands - The Windows Vista Problem And The South Korean Solution, Daniel J. Silverthorn
Michigan Telecommunications & Technology Law Review
Currently, more than ninety percent of the world's PCs operate under Windows. To cement its market power, Microsoft has engaged in controversial business practices. Those practices have led to adverse antitrust decisions in the United States, the European Union (EU), and South Korea. Many of these decisions, both judicial and administrative, revolve around Microsoft's bundling, or "tying," of certain subsidiary applications with the Windows operating system, including Internet Explorer and Windows Media Player. In doing so, Microsoft arguably gains a greater than deserved market share with these bundled applications, inhibiting fair competition in the software marketplace. The United States, EU …
The Boilerplate Puzzle, Douglas G. Baird
The Boilerplate Puzzle, Douglas G. Baird
Michigan Law Review
The warranty that comes with your laptop computer is one of its many product attributes. The laptop has a screen of a particular size. Its microprocessors work at a particular speed, and the battery lasts a given amount of time between recharging. The hard drive has a certain capacity and mean time to failure. There is an instruction manual, online technical support (or lack thereof), and software. Then there are the warranties that the seller makes (or does not make) that are also part of the bundle. Just as I know the size of the screen, but nothing about the …
The Hidden Roles Of Boilerplate And Standard-Form Contracts: Strategic Imposition Of Transaction Costs, Segmentation Of Consumers, And Anticompetitive Effects, David Gilo, Ariel Porat
The Hidden Roles Of Boilerplate And Standard-Form Contracts: Strategic Imposition Of Transaction Costs, Segmentation Of Consumers, And Anticompetitive Effects, David Gilo, Ariel Porat
Michigan Law Review
Standard-form contracts offered to consumers contain numerous terms and clauses, most of which are ancillary to the main terms of the transaction. We call these ancillary terms "boilerplate provisions." Since most consumers do not read boilerplate provisions or, if they do, find them hard to understand, courts are suspicious of boilerplate provisions and sometimes find them unenforceable under the doctrine of unconscionability. At times, courts conclude that harsh terms have not been accepted by consumers in the first place and therefore are not included in the contract, and on other occasions courts interpret boilerplate provisions in favor of consumers, applying …
Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer
Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer
University of Michigan Journal of Law Reform
As American health care moves from a professionally dominated to a market-dominated 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 …
Workable Antitrust Policy, Frank H. Easterbrook
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
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
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 …