Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Antitrust and Trade Regulation (95)
- Law and Economics (23)
- Intellectual Property Law (22)
- Business (15)
- Social and Behavioral Sciences (14)
-
- Economics (13)
- Technology and Innovation (11)
- Litigation (10)
- Entertainment, Arts, and Sports Law (8)
- Industrial Organization (8)
- Courts (7)
- Comparative and Foreign Law (6)
- Internet Law (6)
- Science and Technology Law (6)
- Business Organizations Law (4)
- Commercial Law (4)
- International Trade Law (4)
- Law and Society (4)
- Legal History (4)
- European Law (3)
- Labor and Employment Law (3)
- Legislation (3)
- Political Economy (3)
- Political Science (3)
- Public Affairs, Public Policy and Public Administration (3)
- Administrative Law (2)
- Banking and Finance Law (2)
- Communications Law (2)
- Consumer Protection Law (2)
- Institution
-
- Selected Works (30)
- Fordham Law School (18)
- University of Pennsylvania Carey Law School (17)
- SelectedWorks (12)
- University of Tennessee College of Law (6)
-
- University of Florida Levin College of Law (5)
- Pepperdine University (4)
- University of Baltimore Law (4)
- University of Michigan Law School (4)
- American University Washington College of Law (3)
- Chicago-Kent College of Law (3)
- George Washington University Law School (2)
- Boston University School of Law (1)
- DePaul University (1)
- Emory University School of Law (1)
- Georgetown University Law Center (1)
- Maurer School of Law: Indiana University (1)
- New York Law School (1)
- Notre Dame Law School (1)
- Penn State Law (1)
- Saint Louis University School of Law (1)
- Seattle University School of Law (1)
- St. John's University School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Montana (1)
- Vanderbilt University Law School (1)
- West Virginia University (1)
- Publication
-
- All Faculty Scholarship (23)
- Fordham Law Review (16)
- Joseph P. Bauer (7)
- UF Law Faculty Publications (5)
- Frank A. Pasquale (4)
-
- Pepperdine Law Review (4)
- Scholarly Works (4)
- Thomas J. Horton (4)
- Articles in Law Reviews & Other Academic Journals (3)
- Articles (2)
- Avishalom Tor (2)
- College of Law Faculty Scholarship (2)
- Faculty Scholarship (2)
- Fordham Intellectual Property, Media and Entertainment Law Journal (2)
- GW Law Faculty Publications & Other Works (2)
- Latoya C. Brown, Esq. (2)
- Sandeep Vaheesan (2)
- Seventh Circuit Review (2)
- Valerio Cosimo Romano (2)
- mariateresa maggiolino (2)
- Aaron Edlin (1)
- Articles & Chapters (1)
- Book Chapters (1)
- Bryane Michael (bryane.michael@stcatz.ox.ac.uk) (1)
- Carlos Molina Sandoval (1)
- College of Law Faculty (1)
- Críspulo Marmolejo (1)
- David J. Gerber (1)
- David K. Millon (1)
- Diego G. Pardow (1)
- Publication Type
Articles 1 - 30 of 123
Full-Text Articles in Law
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
All Faculty Scholarship
A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …
Joe Bauer Presented "Enforcement Issues Under American Antitrust Laws" At The University Of Tilburg (Holland) Center For Law And Economics On December 19, 2013, Joseph P. Bauer
Faculty Lectures and Presentations
Joe Bauer presented a seminar at the University of Tilburg (Holland) Center for Law and Economics on December 19. His topic was Enforcement Issues under American Antitrust Laws. View PowerPoint slides of lecture by clicking pdf link.
Policing The Firm, D. Daniel Sokol
Policing The Firm, D. Daniel Sokol
UF Law Faculty Publications
Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrongdoing. Thus far, antitrust scholarship and policy have ignored this insight in the cartel context. This Article suggests how to improve antitrust enforcement by focusing enforcement efforts on changing the incentives of internal firm compliance.
Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp
Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp
All Faculty Scholarship
In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.
Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …
Professional Activities And The Antitrust Laws, Joseph P. Bauer
Professional Activities And The Antitrust Laws, Joseph P. Bauer
Joseph P. Bauer
No abstract provided.
Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor
Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor
Avishalom Tor
The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited …
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Avishalom Tor
This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …
Senator Rufus Blodgett: The Sherman Anti-Trust Act’S Lone Dissenter, Steven Lavender
Senator Rufus Blodgett: The Sherman Anti-Trust Act’S Lone Dissenter, Steven Lavender
Steven Lavender
No abstract provided.
Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer
Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer
Joseph P. Bauer
Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. …
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
Joseph P. Bauer
No abstract provided.
Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer
Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer
Joseph P. Bauer
Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors. The central question addressed by this …
A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer
A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer
Joseph P. Bauer
Few types of antitrust conduct have received as much treatment from the Supreme Court as tying arrangements. This practice, which is unlawful per se when certain prerequisites are met, may be defined as an agreement by a party to sell one product [the tying product] but only on the condition that the buyer also purchases different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Notwithstanding this extensive Supreme Court attention, there is as much heat as light in this area. The doctrine that has developed is often unpredictable and frequently …
Antitrust And Sports: Must Competition On The Field Displace Competition In The Market?, Joseph P. Bauer
Antitrust And Sports: Must Competition On The Field Displace Competition In The Market?, Joseph P. Bauer
Joseph P. Bauer
A casual glance at the daily newspapers would suggest that athletes and sports teams spend almost as much time squaring off in the courts as they do on the playing fields. Professional football players complain that the teams for which they play and the National Football League have conspired to impose illegal restraints on their ability to offer their services to other teams. A baseball team went to court to challenge the decision by the now-deposed Commissioner of Baseball to shift it from one division to another. College players, coaches, and universities all contend that various rules imposed by the …
Challenging Conglomerate Mergers Under Section 7 Of The Clayton Act: Today's Law And Tomorrow's Legislation, Joseph P. Bauer
Challenging Conglomerate Mergers Under Section 7 Of The Clayton Act: Today's Law And Tomorrow's Legislation, Joseph P. Bauer
Joseph P. Bauer
Federal antitrust enforcement has undergone a radical transformation in the past decade. The change in enforcement patterns has been most noticeable in the area of merger law. The magnitude of this shift, the confusion that has characterized the case law accompanying it, and the increasing prominence of conglomerate mergers as a means to corporate expansion form the basis for this article. The primary source for regulation of mergers under the antitrust laws is section 7 of the Clayton Act, which proscribes those corporate acquisitions “where in any line of commerce in any section of the country, the effect of such …
Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller
Antitrust And Trade Regulation Bulletin Ftc Releases Report On Intellectual Property And Antitrust, James Burling, John C. Christie Jr., Michelle Miller
Michelle Miller
Last year the FTC and the Department of Justice jointly held hearings focused on the current balance of competition and patent law and policy. (See our December, 2001 Antitrust and Trade Regulation Bulletin at www.haledorr.com/antitrust.) The hearings spanned more than 24 days, involving more than 300 panelists and 100 separate written submissions. The first tangible by-product of those sessions came on October 28, 2003, with the release of a 266-page FTC report containing specific recommendations for changes in the existing patent system (the Patent Report)(http://www.ftc.gov/opa/2003/10/creport .htm). A second, joint report with DOJ, containing specific recommendations for antitrust, is promised for …
The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds
The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds
Edmund P. Edmonds
No abstract provided.
Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp
Innovation, Ip Rights, And Anticompetitive Exclusion, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …
Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande
Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande
All Faculty Scholarship
The conventional wisdom is that private antitrust enforcement lacks any value. Indeed, skepticism of private enforcement has been so great that its critics make contradictory claims. The first major line of criticism is that private enforcement achieves too little — it does not even minimally compensate the actual victims of antitrust violations and does not significantly deter those violations. A second line of criticism contends that private enforcement achieves too much — providing excessive compensation, often to the wrong parties, and producing overdeterrence. This article undertakes the first ever systematic evaluation of these claims. Building upon original empirical work and …
A Three-Tiered Public Policy Approach To Copyright Misuse In The Context Of Tying Arrangements, Sandy Azer
A Three-Tiered Public Policy Approach To Copyright Misuse In The Context Of Tying Arrangements, Sandy Azer
Fordham Law Review
Over two decades since the copyright misuse doctrine was first recognized in Lasercomb America, Inc. v. Reynolds, a uniform approach for determining whether a specific behavior constitutes misuse still does not exist. Circuit courts have commonly applied two competing approaches to the misuse analysis. One approach centers on the public policy underlying copyrights; the other approach centers on antitrust principles. This Note explores relevant jurisprudence and elucidates the shortfalls of each approach. It then proposes a compromise that underscores the interplay between copyright and antitrust laws. The proposed resolution aims to provide a much–needed uniform misuse analysis that does …
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro
All Faculty Scholarship
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”
This article is an effort to help courts and …
Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol
Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol
UF Law Faculty Publications
This essay explores the factors that drive merger outcomes under China's Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger …
Teaching America's Antitrust Laws And Their Enforcement, Thomas J. Horton
Teaching America's Antitrust Laws And Their Enforcement, Thomas J. Horton
Thomas J. Horton
No abstract provided.
Sham Litigation En El Régimen De Competencia Desleal, Carlos Molina Sandoval
Sham Litigation En El Régimen De Competencia Desleal, Carlos Molina Sandoval
Carlos Molina Sandoval
En doctrina nacional se ha expresado que el concepto de “Sham Litigation” se puede aplicar en casos en los que existe un abuso de los procedimientos judiciales, configurándose éstos cuando una acción se basa en una teoría jurídica claramente incorrecta, en derechos válidos cuya inaplicabilidad se conoce, o cuando el demandante tiene conocimiento de la inexistencia de infracción. Se trata de una conducta que, indirectamente, procura una obstaculización de acceso al mercado o la depredación de los competidores existentes. En general, se acepta que los posibles efectos de la depredación en cuestión (modalizadas por la vía judicial) están dirigidas a …
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor
Spencer Weber Waller
This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …
Institutional Advantage In Competition And Innovation Policy, Herbert J. Hovenkamp
Institutional Advantage In Competition And Innovation Policy, Herbert J. Hovenkamp
All Faculty Scholarship
In the United States responsibility for innovation policy and competition policy are assigned to different agencies with different authority. The principal institutional enforcers of patent policy are the United States Patent and Trademark Office (USPTO), the International Trade Commission (ITC), and the federal district courts as overseen by the United States Court of Appeals for the Federal Circuit, and ultimately the Supreme Court. While competition policy is not an explicit part of patent policy, competition issues arise frequently, even when they are not seen as such.
Since early in the twentieth century antitrust courts have had to confront practices that …
Should The Internet Exempt The Media Sector From The Antitrust Laws?, Thomas J. Horton, Robert H. Lande
Should The Internet Exempt The Media Sector From The Antitrust Laws?, Thomas J. Horton, Robert H. Lande
All Faculty Scholarship
This article examines whether the "old media" and the "new media", including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast …
A Sight For Sore Eyes: The Seventh Circuit Correctly Interprets Section 12 Of The Clayton Act, Ryan Moore
A Sight For Sore Eyes: The Seventh Circuit Correctly Interprets Section 12 Of The Clayton Act, Ryan Moore
Seventh Circuit Review
In order to hail a defendant into federal court, a plaintiff must establish personal jurisdiction and venue. Under general principles of federal law, personal jurisdiction is proper whenever the defendant would be amenable to suit under the laws of the state in which the federal court sits. And venue is proper in any district where the defendant "resides" (i.e., is subject to personal jurisdiction). Section 12 of the Clayton Act, however, supplements these general principles. It has a liberal service-of-process provision that allows personal jurisdiction in any federal district court in the nation. But venue is proper only in the …
Secondary-Line Differential Pricing And The Robinson-Patman Act, E. Thomas Sullivan, Herbert J. Hovenkamp, Howard A. Shelanski, Christopher R. Leslie
Secondary-Line Differential Pricing And The Robinson-Patman Act, E. Thomas Sullivan, Herbert J. Hovenkamp, Howard A. Shelanski, Christopher R. Leslie
All Faculty Scholarship
Because it is taught infrequently, the full text of Chapter 8 of our antitrust casebook, on the Robinson-Patman Act, is now posted online and free for anyone to use. This chapter covers all issues related to secondary-line enforcement, the "cost justification," "meeting competition," and other defenses, as well as buyers' liability. Primary-line enforcement is still covered with the materials on predatory pricing in Chapter 6.
The Mpaa: A Script For An Antitrust Production, Ian G. Henry
The Mpaa: A Script For An Antitrust Production, Ian G. Henry
West Virginia Law Review
No abstract provided.
Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall
Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall
Frank A. Pasquale
What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least …