Law Commons^™

Discounts And Exclusions, Herbert J. Hovenkamp

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The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost …

Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

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Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that …

Architectural Censorship And The Fcc, Christopher S. Yoo

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Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

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The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions …

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

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The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts …

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

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The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

Afterword: Antitrust And American Business Abroad Revisited, David J. Gerber

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No abstract provided.

The Three Types Of Collusion: Fixing Prices, Rivals, And Rules, Robert H. Lande, Howard P. Marvel

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Collusion can profitably be classified into three distinct types. In our classification, "Type I" collusion is the familiar direct agreement among colluding firms (a cartel) to raise prices or, equivalently, restrict output. Alternatively, firms can collude to disadvantage rivals in ways that causes those rivals to cut output. We term this "Type II" collusion. Its indirect effect is an increase in market prices.

A number of important collusion cases neither direct manipulation of prices or output, nor direct attacks on rivals. Examples include Supreme Court cases such as National Society of Professional Engineers v. US, Bates v. State Bar of …

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

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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 …

Recent Trends In Merger Enforcement In The United States: The Increasing Impact Of Economic Analysis, Robert H. Lande, James Langenfeld

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From its modern origins more than thirty years ago federal merger policy has centered around the use of standard surrogates for market power to make presumptions about the likely effects of mergers. Since that time it has been evolving towards an increasingly complex approach as economic considerations have expanded their influence on merger policy. This trend was solidified in the 1982 revision of the Department of Justice's Merger Guidelines, accelerated by the Department of Justice and Federal Trade Commission 1992 Horizontal Merger Guidelines' increased emphasis on unilateral (as opposed to collusive) anticompetitive effects, and has reached new heights in the …

Creating Competition Policy For Transition Economies: Introduction, Robert H. Lande

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This is an introduction to a symposium on Creating Competition for Transition Economies. This article provides an overview of the topic, and also briefly introduces the authors of the articles in the symposium; William Kovacic, Eleanor Fox, Spencer Weber Waller, Malcolm Coate, and Armando Rodriguez.

Corporate Law Through An Antitrust Lens, Edward B. Rock

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No abstract provided.

Commentary: Implications Of Professor Scherer's Research For The Future Of Antitrust, Robert H. Lande

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One way to test the accuracy of Professor Scherer's research is to compare it to the best previous work in the area. Prior to his current article the best analysis of the state of economic thinking and knowledge during antitrust's formative period was presented twelve years ago by—Professor Scherer. This was a skeletal precurser to the well-documented version that he now presents, but his overall conclusions are identical. During the twelve years since his conclusions were presented in the Yale Law Journal no one has demonstrated that his research is in any way faulty or misleading, even though many have …

The Antitrust Movement And The Rise Of Industrial Organization, Herbert J. Hovenkamp

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The modern science of industrial organization grew out of a debate among lawyers and economists in the waning years of the nineteenth century. For Americans, the emergent business "trust" provoked a dialogue about how the law should respond. Many of the formal theories of industrial organization, such as the ruinous competition doctrine, the potential competition doctrine, and the post-classical concern about vertical integration, were actually borrowed from the law.

Anglo-American and European economists disputed the proper domain of theory and description in economic analysis. The British approach was exemplified Alfred and Mary Paley Marshall's Economics of Industry, published in …

Antitrust And The Challenge Of Internationalization, David J. Gerber

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No abstract provided.

Monopoly Power And Market Power In Antitrust Law, Thomas G. Krattenmaker, Robert H. Lande, Steven C. Salop

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This article seeks an answer to a question that should be well settled: for purposes of antitrust analysis, what is 'market power' and/or 'monopoly power'? The question should be well settled because antitrust law requires proof of actual or likely market power or monopoly power to establish most types of antitrust violations.

Examination of key antitrust law opinions, however, shows that courts define 'market power' and 'monopoly power' in ways that are both vague and inconsistent. We conclude that the present level of confusion is unnecessary and results from two different but related errors:

(1) the belief or suspicion that …

Do The Doj Vertical Restraints Guidelines Provide Guidance?, Alan A. Fisher Ph.D., Frederick I. Johnson, Robert H. Lande

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Vertical restraints come in a glittering menu of exceptional variety, including resale price maintenance (RPM), tying, exclusive dealing, requirements contracts, "best efforts" clauses, full-line forcing, airtight and nonairtight exclusive territories, customer restrictions, areas of primary responsibility, profit-passover provisions, restrictions on locations of outlets, and dual distribution. Firms sometimes combine vertical restraints into packages. The great variety of individual and combined vertical restraints complicates the discovery of market effects. Indeed, identifying what restraint(s) a given firm is using at any particular time can be difficult.

Antitrust Policy After Chicago, Herbert J. Hovenkamp

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This article, which was published in 1985, describes the development of a "Post-Chicago" antitrust policy. The Chicago School of antitrust analysis has made an important and lasting contribution to antitrust policy. The School has placed an emphasis on economic analysis in antitrust jurisprudence that will likely never disappear. At the same time, however, the Chicago School's approach to antitrust is defective for two important reasons. First of all, the notion that public policymaking should be guided exclusively by a notion of efficiency based on the neoclassical market efficiency model is naive. That notion both overstates the ability of the policymaker …

Antitrust Law And Economic Analysis: The Swedish Approach, David J. Gerber

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No abstract provided.

Economic Pressure And Antitrust (With James A. Wilkinson), Henry H. Perritt Jr.

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No abstract provided.