Law Commons^™

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

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 Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane

Articles

Of all Robert Bork’s many important contributions to antitrust law, none was more significant than his identification of economic efficiency, disguised as consumer welfare, as the sole normative objective of U.S. antitrust law. The Supreme Court relied primarily on Bork’s argument that Congress intended the Sherman Act to advance consumer welfare in making its landmark statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” This singular normative vision proved foundational to the reorientation of antitrust law away from an interventionist, populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as a constraint on …

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 …

Are You Ready For Some Football?: How Antitrust Laws Can Be Used To Break Up Directv's Exclusive Right To Telecast Nfl's Sunday Ticket Package, Ariel Y. Bublick

Federal Communications Law Journal

There is almost no question that football has become modem America's pastime. Football has never been more popular, and every Sunday people are clamoring to watch as many games as possible. The Sunday Ticket package allows viewers to watch any National Football League ("NFL") game being played at any given time. However, the NFL has only granted DirecTV the right to air the Sunday Ticket package, denying this excellent service to a majority of television viewers. By limiting the reach of the Sunday Ticket package, the NFL may be in violation of antitrust laws. This Note begins by explaining antitrust …

Holmes And The Bald Man: Why Rule Of Reason Should Be The Standard In Sherman Act Section 2 Cases, William J. Michael

The University of New Hampshire Law Review

[Excerpt] "It has been argued that the antitrust laws’ legislative history supports the notion that the laws were meant to prohibit anticompetitive price cuts – regardless of whether they are below cost. Thus, predatory pricing claims used to turn simply on whether the allegedly predatory price was intended to harm rivals. In fact, liability for predatory price discrimination was found without requiring probable or actual monopolization. Yet some cases brought early under Section 2 suggest that below cost pricing was indicative of, if not proof of, the type of conduct Section 2 prohibits. The results under this old scheme were …

The Empire Strikes Back: Nfl Cuts Clarett, Sacks Scheindlin, Adam Epstein

Adam Epstein

The article explores and the litigation history involving former Ohio State University running back Maurice Clarett and his challenge the the NFL draft-eligibility rule. Though Clarett was successful at the U.S. District Court level, the Second Circuit Court of Appeals ruled differently, thereby preventing Clarett from being eligible for the 2004 NFL draft. Though he was drafted the next year (2005), an exploration of the differences between the trial court (Hon. Schendlin) and the appellate court (J. Sotomayor) opinions is quite interesting and relevant in the context of both antitrust and labor law, particularly the mandatory subjects of a collective …

Brooke Group Ltd. V. Brown & Williamson Tobacco Corp.: A Victory For Consumer Welfare Under The Robinson-Patman Act, Keith Allen May

University of Richmond Law Review

The preservation of competition among business entities is vital to the success of any economy. Recognizing the importance of competition, the United States Congress has passed antitrust laws that seek to enhance productivity and protect consumers. Although the antitrust laws, like all statutes, are vulnerable to a variety of different interpretations, "[t]he language of the antitrust statutes, their legislative histories, the major structural features of the antitrust law, and considerations of the scope, nature, consistency, and ease of administration of the law all indicate that the law should be guided solely by the criterion of consumer welfare." The antitrust laws …

Rent Control Price Fixing: Another Look At The Emperor's New Clothes, Robert N. Markle

Touro Law Review

No abstract provided.

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 …