Law Commons^™

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 …

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.

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 …

Integrating Micro And Macro Policy Levers In Response To Financial Crises, Daniel A. Crane, Markus Kitzmuller, Graciela Miralles

Michigan Business & Entrepreneurial Law Review

The 2008–09 Global Financial Crisis originated from a poor incentive structure in the asset market derived from subprime mortgages. The ultimate bursting and unwinding of an asset bubble (here highly overvalued real estate prices woven into a complex multilayer network of securitization, so called collateralized debt obligations or CDOs) put enormous stress on the financial system, spreading through the global network economy and ultimately resulting in the worst economic crisis since the Great Depression. Economists today agree that the severe economic fallout can be largely attributed to the poor systemic performance of international financial markets. Global macroeconomic imbalances, as well …

Exclusion In Digital Markets, Konstantinos Stylianou

Michigan Telecommunications & Technology Law Review

This article recasts the existing analytical framework on exclusion to account for the technology-intensive nature of digital markets. It discusses:

a) technological ways that affect the competitive intensity in digital markets
b) empirical data on the durability of competitive advantage in digital markets, and
c) the nature of exclusion as a monopolization tactic from a technological point of view

The technology element is important because as a matter of order it is technological capabilities and limitations that define what the transactional overlay can be, not the other way around. Economists start from the pre-assumption that “in the beginning there [are] …

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 …

Astroturf Campaigns: Transparency In Telecom Merger Review, Victoria Peng

University of Michigan Journal of Law Reform

Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This …

The Corporation’S Place In Society, Gabriel Rauterberg

Michigan Law Review

The vast majority of economic activity is now organized through corporations. The public corporation is usurping the state’s role as the most important institution of wealthy capitalist societies. Across the developed world, there is increasing convergence on the shareholder-owned corporation as the primary vehicle for creating wealth. Yet nothing like this degree of convergence has occurred in answering the fundamental questions of corporate capitalism: What role do corporations serve? What is the goal of corporate law? What should corporate managers do? Discussion of these questions is as old as the institutions involved.

An Administrative Meter Maid: Using Inter Partes Review And Post-Grant Review To Curb Exclusivity Parking Via The "Failure To Market" Provision Of The Hatch-Waxman Act, Brian T. Apel

Michigan Law Review

Congress created the unique Hatch-Waxman framework in 1984 to increase the availability of low-cost generic drugs while preserving patent incentives for new drug development. The Hatch-Waxman Act rewards generic drug companies that successfully challenge a pharmaceutical patent: 180 days of market exclusivity before any other generic firm can enter the market. When a generic firm obtains this reward, sometimes drug developers agree to pay generic firms to delay entering the market. These pay-for-delay agreements give rise to exclusivity parking and run counter to congressional intent by delaying full generic drug competition. The Medicare Prescription Drug, Improvement, and Modernization Act created …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

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 …

Ridding The Law Of Outdated Statutory Exemptions To Antitrust Law: A Proposal For Reform, Anne Mcginnis

University of Michigan Journal of Law Reform

Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid …

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications & Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …

Tarrification Of The Coastwise Trade Laws, Keith E. Diggs

Michigan Law Review

The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers between American ports. These anticompetitive laws punish American producers and consumers yet barely sustain a dwindling merchant marine. Every attempt to repeal the laws encounters insurmountable political resistance. Reformers of the coastwise trade laws, then, should instead try to convert the prohibition on foreign involvement into a tariff.

Model-Based Pricing In Hurricane Insurance: A Case Study For Judicial Reform Of The Mccarran-Freguson Act, Benjamin Holland Able

University of Michigan Journal of Law Reform

The McCarran-Ferguson Act (MFA) exempts various aspects of state insurance operations from federal antitrust enforcement. This exemption is a source of longstanding controversy, due in part to its potentially harmful effect on consumers in product pricing. In hurricane insurance, there is a burgeoning debate concerning insurers' use of predictive computer models rather than shared loss data to set premiums for the industry. By using these models in hurricane-prone states, insurers have increased the price of hurricane insurance dramatically. Where these new prediction methods are used, MFA exemption may facilitate supracompetitive pricing in ways its architects could not have foreseen. This …

Market Power In Power Markets: The Filed-Rate Doctrine And Competition In Electricity, Sandeep Vaheesan

University of Michigan Journal of Law Reform

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale electricity markets exist everywhere today. Independent power producers can construct generation facilities and sell their output to utilities and industrial customers through bilateral contracts. In many regions, centralized power markets now facilitate the sale of billions of dollars in electricity annually through auctions. Although market forces have replaced direct price regulation in electricity, antitrust enforcement has not expanded its role commensurately. A lack of competition has been a serious problem in …

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 …

Franchise Goodwill: Take A Sad Song And Make It Better, Robert W. Emerson

University of Michigan Journal of Law Reform

The end of a franchisor-franchisee relationship is often like a divorce, with the parties engaged in a heated battle over the ownership of the franchise goodwill. In this debate, the same franchisors or franchisees often change their positions on goodwill ownership depending on current needs. This Article analyzes cases in many areas of franchise law to determine why franchisors and franchisees engage in such inconsistent reasoning, what the consequences are for franchising, and if there are ways to produce a more logical and efficient form of analysis and debate. In addressing the most contentious issues of franchising, adherence by litigants …

Race, Markets, And Hollywood's Perpetual Antitrust Dilemma, Hosea H. Harvey

Michigan Journal of Race and Law

This Article focuses on the oft-neglected intersection of racially skewed outcomes and anti-competitive markets. Through historical, contextual, and empirical analysis, the Article describes the state of Hollywood motion-picture distribution from its anticompetitive beginnings through the industry's role in creating an anti-competitive, racially divided market at the end of the last century. The Article's evidence suggests that race-based inefficiencies have plagued the film distribution process and such inefficiencies might likely be caused by the anti-competitive structure of the market itself, and not merely by overt or intentional racial-discrimination. After explaining why traditional anti-discrimination laws are ineffective remedies for such inefficiencies, the …

The Crisis In Legal Education: Dabbling In Disaster Planning, Kyle P. Mcentee, Patrick J. Lynch, Derek M. Tokaz

University of Michigan Journal of Law Reform

The legal education crisis has already struck for many recent law school graduates, signaling potential disaster for law schools already struggling with their own economic challenges. Law schools have high fixed costs caused by competition between schools, the unchecked expansion of federal loan programs, a widely exploited information asymmetry about graduate employment outcomes, and a lack of financial discipline masquerading as innovation. As a result, tuition is up, jobs are down, and skepticism of the value of a J.D. has never been higher. If these trends do not reverse course, droves of students will continue to graduate with debt that …

The Crisis Of The American Law School, Paul Campos

University of Michigan Journal of Law Reform

The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades, the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile, for more than thirty years, the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector …

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 …

Efficiency-Wage Theory And Law Firm Pay, Dongyu "Eddie" Wang

University of Michigan Journal of Law Reform Caveat

Every first-year law student knows that Big Law pays $160,000 a year. In fact, this number is likely the biggest incentive for applying in the minds of most law-school hopefuls. Taking New York City as an example, a quick look at Vault’s salary data reveals that, indeed, the large majority of New York firms with available salary data pay first-year associates exactly $160,000.

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 …

Why Governance Might Work In Mutual Funds, Michael C. Schouten

Michigan Law Review First Impressions

The Supreme Court's recent decision in Jones v. Harris Associates L.P. has highlighted the potential for agency conflicts in mutual funds, whose advisors have the de facto power to award themselves high fees. While the surrounding debate has focused on the extent to which market competition replaces the need for fee litigation, there appears to be a growing consensus that fund governance, through the use of voice, is unlikely to be effective. The use of voice is commonly said to be hampered by collective action problems. More recently, scholars have argued that it is further weakened by the easy availability …

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 …

Creating A Plug-In Electric Vehicle Industry Cluster In Michigan: Prospects And Policy Options, Thomas P. Lyon, Russell A. Baruffi Jr.

Michigan Telecommunications & Technology Law Review

This Article seeks to examine how policy can be used strategically to foster the development of a plug-in electric vehicle ("PEV") industry cluster in Michigan. The tendency for certain industries to localize in particular regions has captured the interest of much economic research and policy discussion in recent years. The trend toward the clustering of new industries has stayed strong despite the acceleration of globalization. Attention to clusters has proven to be an enduring theme in economic development circles for nearly thirty years. Clusters generate synergies that make industrial activity greater than the sum of contributions by individual players. In …

Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook

Michigan Telecommunications & Technology Law Review

Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …