Law Commons^™

Market Power And Switching Costs: An Empirical Study Of Online Networking Market, Shin-Ru Cheng

University of Cincinnati Law Review

In recent years, states have launched several antitrust investigations targeting digital platforms. A major difficulty in these investigations is demonstrating the extent of a digital platform’s market power. Market power is defined as the control of the output or the price without the loss of business to competitors. As will be explored in this Article, market power is a critical component in an antitrust analysis. On several occasions, courts have adopted the switching costs approach in their analysis of market power. According to this approach, market power may be inferred when the costs of switching from one supplier to another …

The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips

Dickinson Law Review (2017-Present)

Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.

Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece of …

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

Alan J. Meese

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 …

Taming Sherman's Wilderness, Derrian Smith

Indiana Law Journal

This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation …

A Quest For Consistency: The Meaning Of 'Direct' In The Foreign Trade Antitrust Improvements Act, Richard Lobas

Global Business Law Review

This note argues that the United States courts need to apply a more consistent interpretation of the meaning of "direct" within the context of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA serves to apply U.S. antitrust law, specifically the Sherman Act, to trade or commerce with foreign nations. One scenario in which this law may be applied is when trade or commerce with a foreign nation has a "direct, substantial, and reasonably foreseeable" effect on domestic commerce. However, courts purport to apply different standards to determine whether an effect is direct, leading to confusion and inconsistency. Contributing to …

The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay

George A. Hay

While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …

What Do We Worry About When We Worry About Price Discrimination? The Law And Ethics Of Using Personal Information For Pricing, Akiva A. Miller

Akiva A Miller

New information technologies have dramatically increased sellers’ ability to engage in retail price discrimination. Debates over using personal information for price discrimination frequently treat it as a single problem, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different ethical concerns they raise. This paper explores the ethical and legal debate over regulating price discrimination facilitated by consumers’ personal information. Various kinds of “privacy remedies”—self-regulation, technological fixes, state regulation, and legislating private causes of legal action—each have their place. By drawing distinctions between various …

Mixed Agendas And Government Regulation Of Business: Can We Clean Up The Mess?, Thomas M. Arnold, Jerry L. Stevens

University of Richmond Law Review

The purpose of this article is first to navigate through variousperspectives on government regulation in an effort to develop areasonable and consistent view for regulatory proposals. Parts II and III of this article provide a brief outline of our current regulatory environment and its evolution. Part IV presents arguments for an efficient regulation of business by using market based regulation with a separation of efficiency and equity issues, where feasible. Examples of this regulatory approach appear throughout the article along with suggested reforms.

Market Realities Do Not Embody Necessary Economic Theory: Why Defendants Deserve A Safe Harbor Under Section 2 Of The Sherman Act For Exclusive Dealing, Danielle N. Paschal

Georgia Law Review

Exclusive dealing agreements are a form of vertical
restraint. They are often procompetitive and treated as
presumptively legal. Although claims against
anticompetitive agreements may be pursued under
numerous antitrust laws, claims have been brought more
recently under section 2 of the Sherman Act. Antitrust
laws generally focus on the percentage of foreclosure.
Section 2 of the Sherman Act, though, requires a smaller
percentage of foreclosure of distribution channels than
other antitrust laws. Analysis under section 2 of the
Sherman Act also focuses on the actual effects of the
agreement in the relevant market. Determining the
agreement's actual effects on the …

The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay

Cornell Law Faculty Publications

While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …

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 …

An Exercise In Judicial Restraint: Limiting The Extraterritorial Appplication Of The Sherman Act Under The Act Of State Doctrine And Sovereign Immunity, Joseph J. Wielebinski

Syracuse Journal of International Law and Commerce

When a legal dispute involving a foreign nation is submitted to a United States court, the adjudication of rights and liabilities may prove problematic. Two formidable barriers, the act of state doctrine and sovereign immunity, limit the court's ability to resolve disputes which question the legality of sovereign acts. The circumstances under which a United States court should exercise its jurisdiction to consider the merits of a claim involving the application of domestic law to the acts of a foreign sovereign remains a controversial issue.

The Legal Status Of Joint Ventures Under The Antitrust Laws: A Summary Assessment, Joseph F. Brodley

Articles by Maurer Faculty

No abstract provided.

Recent Antitrust Developments-1964, Milton Handler

Michigan Law Review

Ever since the passage of the Sherman Act, the courts have consistently refused to permit the requirements of antitrust to be circumvented by the easy expedient of dressing a sale in the vestments of a sham agency agreement. In Dr. Miles Medical, where the Supreme Court first held vertical price fixing unlawful, the seller and buyer denominated their agreement as an "agency," but the Court properly concluded that it was, in fact, a sale. Likewise, in Standard-Magrane, the first occasion on which the Court considered section of the Clayton Act, the seller purported to appoint his customers as …

Tying Arrangements Under The Antitrust Laws: The "Integrity Of The Product" Defense, F. Bruce Kulp Jr.

Michigan Law Review

One of the most frequently asserted defenses to an action under either the Sherman Act or the Clayton Act against a tying arrangement-a contractual limitation imposed by a manufacturer whereby the purchaser of the "tying product" agrees to purchase a related "tied product" only from the manufacturer of the tying product-has been that the tying was necessary to protect the good will or the integrity of the tying product. Whether the tied product is service for the tying product, another component in a system in which the tying product is used, repair parts for the tying product, or any other …

Federal Antitrust Law-Sherman Act-Resale Restrictions In Agreements Between Manufacturer And Distributors, S. Anthony Benton

Michigan Law Review

Defendant, a manufacturer of heavy trucks, entered into agreements with its wholesale distributors and retail dealers whereby the distributors and dealers agreed to resell defendant's trucks at prices fixed by defendant. They also agreed to restrict their sales to customers located within the territories designated by defendant and to allow defendant to deal directly with all government accounts. The Justice Department, charging violation of sections I and 3 of the Sherman Act, brought a civil suit to enjoin defendant from continuing or renewing any of the aforementioned arrangements. On plaintiff's motion for summary judgment, held, motion granted. Vertical agreements …

A Decade Of The Celler-Kefauver Anti-Merger Act, Charles J. Steele

Vanderbilt Law Review

Corporations intent upon expanding via the acquisition route have had three statutory hurdles placed in their way by the Congress of the United States. As hurdles, the first two, the Sherman Act of 1890 and the Clayton Act of 1914, were failures. A judiciary which refused to give effect either to the language or intent of the acts nullified completely their usefulness as anti-merger weapons.

The third hurdle, the Celler-Kefauver Amendment to the Clayton Act, was enacted in 1950. Relatively few judicial opinions have interpreted this act, "new section 7," as it is called. It is clear, however, that it …

Industrial Marketing Through Leasing Devices: A Survey Of Antitrust Problems

Indiana Law Journal

No abstract provided.

Regulation Of Business - Sherman Act - Expansion Of Per Se Doctrine Over Tying Agreements, Max H. Bergman S.Ed.

Michigan Law Review

Through congressional grant defendant's predecessor acquired approximately forty million acres of land, consisting of every alternate section in a twenty to forty mile wide belt on each side of its railroad track from Lake Superior to Puget Sound. Defendant sold about thirty-seven million acres of its holdings and leased the balance. Many of the sales contracts and most of the leases, together covering several million acres of land, contained "preferential routing" clauses which compelled the grantee or lessee to ship all commodities produced or manufactured on the land over defendant's lines, unless competitors' rates were lower or, in some instances, …

Regulation Of Business - Refusals To Deal - Use To Effectuate Resale Price Maintenance, Raymond J. Dittrich, Jr. S.Ed.

Michigan Law Review

This comment will examine the legal questions arising from a manufacturer's exercise of his right to maintain resale prices by refusing to deal with price cutters in an attempt to determine whether this exists only as an abstract right, or whether it can be translated into legally effective business practices.

The Antitrust Laws In Foregin Commerce, Robert A. Nitschke

Michigan Law Review

The Sherman Act applies to trade or commerce "with foreign nations." Are there differences in the act's application to foreign trade compared with its application to domestic commerce? The Attorney General's National Committee to Study the Antitrust Laws was constituted at a time when this question was pressing for an answer.

During the 1920's and 1930's, the international cartel movement was in full Hood. American companies participated in some of these international arrangements, often in the belief that they were a necessary condition for world trade and upon the legal premise that restrictions adjunctive to patent and know-how licenses were …

Antitrust Policy In Distribution, Kendall B. Debevoise

Michigan Law Review

The American genius lies quite as much in distribution as in manufacturing. Other peoples have demonstrated equal or greater creative ability in many fields. And it is debatable whether their talents are any less at mass production given adequate economic demand. But they have nowhere shown the American genius for distribution. It is axiomatic that if you manufacture in Detroit and your potential customer lives in New York, you need mutual friends. We seem to have figured out better ways to provide better friends for this purpose than any other nation.

But manufacturing came first. Someone had to build a …

Regulation Of Business--Robinson-Patman Act--Defenses Of In Pari Delicto And Changed Market Conditions, William K. Davenport

Michigan Law Review

A group of businessmen in Santa Rosa, New Mexico, organized a boycott against all bread except that baked by plaintiff, the sole baker in Santa Rosa, to induce him not to move his bakery out of town; plaintiff agreed to this plan. Defendant, who sold in interstate commerce, thereupon halved his bread prices in Santa Rosa while maintaining them in other towns, in order to defeat the boycott and preserve the town as a market. Plaintiff brought an action for treble damages under section 2(a) of the Robinson-Patman Act for injuries suffered from this price discrimination. The federal district court …

Constitutional Law - Commerce Clause - Federal Trade Commission - Jurisdiction Over Intrastate Commerce Affecting Interstate Commerce, John C. Johnston

Michigan Law Review

Appellee, an Illinois corporation engaged in manufacturing and selling candy within the state of Illinois, used in marketing its product a method of "break and take" packages involving an element of chance. The Federal Trade Commission had found that this practice constituted "unfair competition" and had ordered one hundred twenty of appellee's competitors who were engaged in interstate commerce to cease using it. The commission issued a like order against appellee on the theory that its activities, although wholly intrastate, "affected" interstate commerce. Appellee appealed from the order, contending that the Federal Trade Commission Act did not authorize the commission …

Constitutional Law-Resale Price Maintenance -Fair Trade Acts, Joseph H. Mueller

Michigan Law Review

Four cases upholding the validity of the California and Illinois Fair Trade Acts were recently sustained by the United States Supreme Court. All four cases involved a similar set of facts. Plaintiffs, the owners or authorized distributors of certain well known trade-marked articles, entered into a series of contracts with wholesalers and retailers fixing the resale prices of their branded products. When defendants, certain retailers who had refused to enter into such agreements, persisted in reselling the articles below the prices stipulated in the contracts with other retailers, plaintiffs sued to enjoin them under the provisions of the state Fair …

Note And Comment, Edwin C. Goddard, George Seletto, Edson R. Sunderland, Victor H. Lane, Burke Shartel, George E. Longstaff

Michigan Law Review

Carriers - Second Cummins Amendment - It was seven years after the Carmack Amendment of the Hepburn Act of i9o6 before the Supreme Court began that series of decisions, extending from Adams Express Co. v. Croninger, 226 U. S. 491 (1913), to George N. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278 (1915), which directly resulted in the First Cummins Amendment of March, 1915. One has only to read those cases, reviewed in 13 Micn. L. REv. 59o, and other notes referred to in 17 MICH. L. Rzv. 183, to see that the language of the Cummins …