Law Commons^™

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

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

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

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

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

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

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

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

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

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

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

Edmund P. Edmonds

No abstract provided.

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

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

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 …

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 …

Privacy, Antitrust, And Power, Frank Pasquale

Frank A. Pasquale

When a dominant internet service collects information about its users, the situation is so far from the usual arm’s-length market transaction that neoclassical economic analysis is misleading. “Lack of surveillance” is not a product that individuals have varying preferences for and purchase accordingly. Rather, surveillance is an inevitable concomitant of life online. We need to tame the power that surveillance entails, rather than continuing to pursue illusory, surveillance-free alternatives on the platform level. To the extent a company creates profiles of individuals and collects data on them, a third party ought to be collecting reports from the company on how …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale

Frank A. Pasquale

When American lawyers talk about "essential facilities," they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance. In this chapter, I sketch a new concept of "essential cultural and political facility," which can help policymakers recognize and address situations where a bottleneck has become …

Eu Concerted Practices & Us Concerted Actions: Beyond William H. Page’S Proposal, Mariateresa Maggiolino, Federico Ghezzi

mariateresa maggiolino

The recent analysis developed by professor William H. Page on the US notion of concerted actions raised the idea to develop an article that exams in-death the EU meaning of concerned practices and that skein of US doctrines that focus on several phenomena running from facilitating practices to invitations to collude, plus factors and agreements to exchange information. According to professor Page, the current definition of concerted actions misses the opportunity to use inter-firm communications as the discriminating factor between cases of collusive pricing practices and cases of interdependent parallel behaviors that result in the same market price. To …

David Trager: Jurist, Jeffrey B. Morris

Jeffrey B. Morris

No abstract provided.

“The Emperor Has No Clothes:” The Ncaa’S Last Chance As The Middle Man In College Athletics, Nicolas A. Novy

Nicolas A. Novy

No abstract provided.

Comentarios A Algunos Aspectos Del Caso De Colusión De Farmacias Y Sus Proyecciones, Críspulo Marmolejo

Críspulo Marmolejo

RESUMEN: El llamado “Caso Farmacias” constituyó durante 2012 uno de los hitos de investigación y decisión relevantes en el Sistema de Defensa de la Libre Competencia chileno desde la reforma del año 2003. Este trabajo analiza la estructura básica de la sentencia 119/2012 del Tribunal de Defensa de la Libre Competencia, confirmada por el fallo de la Excma. Corte Suprema, rol 2578-2012, redactado por el Ministro Sergio Muñoz, y que denegó los recursos de reclamación en contra de la sentencia del TDLC, interpuestos por Cruz Verde S.A y Salcobrand S.A. El trabajo también esbozará comentarios sobre algunas materias de la …

Putting Innovation Incentives Back In The Patent-Antitrust Interface, Thomas K. Cheng

Thomas K. Cheng

This Article proposes a new approach, the constrained maximization approach, to the patent-antitrust interface. It advocates a return to the utilitarian premise of the patent system, which posits that innovation incentives are preserved so long as the costs of innovation are recovered. While this premise is widely accepted, it is seldom applied by the courts in patent-antitrust cases. The result is that courts and commentators have been overly deferential to dynamic efficiency arguments in defense of patent exploitation practices, and have failed to scrutinize the extent to which patentee reward is genuinely essential to generating innovation incentives. Under the constrained …

The Evolving Populisms Of Antitrust, Sandeep Vaheesan

Sandeep Vaheesan

Scholars often divide the eras of U.S. antitrust law into those of “populism” and “economics” and posit a fundamental conflict between the two concepts. Generally, the decisions of the current antitrust era are described as economic, and the mid-twentieth century period is labeled as populist. A review of Supreme Court decisions on antitrust reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have spoken of populist goals and aimed to advance these objectives through economically informed rules. Populism versus economics is thus a false dichotomy.

The populism and economics of antitrust …

Game Over For First Sale, Stephen J. Mcintyre

Stephen J McIntyre

Video game companies have long considered secondhand game retailers a threat to their bottom lines. With the next generation of gaming consoles on the horizon, some companies are experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. Most significantly, a recent patent application describes a system for suppressing secondhand sales by permanently identifying game discs with a single video game console. This technology flies in the face of copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a …

The Evolving Populisms Of Antitrust, Sandeep Vaheesan

Sandeep Vaheesan

Scholars often divide the eras of U.S. antitrust law into those of “populism” and “economics” and posit a fundamental conflict between the two concepts. Generally, the decisions of the current antitrust era are described as economic, and the mid-twentieth century period is labeled as populist. A review of Supreme Court decisions on antitrust reveals a more complex picture. From the enactment of the Sherman Act in 1890, the Court’s antitrust rulings have spoken of populist goals and aimed to advance these objectives through economically informed rules. Populism versus economics is thus a false dichotomy.

The populism and economics of antitrust …

The First Antistrust Statute, David K. Millon

David K. Millon

None available.

A More Harmonious Approach To Evaluate Pharmaceutical Patent Litigation’S “Reverse Payment Settlements”: What About The Patents?, Wenhao Leu

Wenhao Leu

"Reverse Payment Settlements" in pharmaceutical patent litigations represent one of the most challenging legal issues to resolve today because the courts do not have the right tools to do so. Though sharp divisions exist among the circuit courts with application of different tests, none of them has yet to achieve the right balance between the patentees' right to exclude and consumers' need for cheaper generic drugs.

This paper examines more closely the IP aspects of Reverse Payment Settlement agreements—the pharmaceutical patents—in order to resolve their antitrust issues. With weaker patents that are susceptible to invalidation or findings of non-infringement, pharmaceutical …

Eu Concerted Practices & Us Concerted Actions: Beyond William H. Page’S Proposal, Federico Ghezzi, Mariateresa Maggiolino

mariateresa maggiolino

The recent analysis developed by professor William H. Page on the US notion of concerted actions raised the idea to develop an article that exams in-death the EU meaning of concerned practices and that skein of US doctrines that focus on several phenomena running from facilitating practices to invitations to collude, plus factors and agreements to exchange information. According to professor Page, the current definition of concerted actions misses the opportunity to use inter-firm communications as the discriminating factor between cases of collusive pricing practices and cases of interdependent parallel behaviors that result in the same market price. To the …