Law Commons^™

The Ultimate Fighting Championship And Zuffa: From ‘Human Cock-Fighting' To Market Power, Carl J. Gaul Iv

American University Business Law Review

No abstract provided.

$=Euro=Bitcoin, Hilary Allen

Articles in Law Reviews & Other Academic Journals

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. This Article argues that if virtual currencies are used at that scale, it would pose threats to the stability of the financial system-threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile-Bitcoin can remain money only for so long as people have confidence that bitcoins will be readily accepted by others as a means of payment. Unlike the U.S. dollar, which is …

Patents V. Antitrust: Preempting Conflict, Matthew G. Sipe

American University Law Review

No abstract provided.

Citizen Petitions: Long, Late-Filed, And At-Last Denied, Michael A. Carrier, Carl Minniti

American University Law Review

No abstract provided.

Evaluating Appropriability Defenses For The Exclusionary Conduct Of Dominant Firms In Innovative Industries, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

In response to antitrust cases challenging the exclusionary conduct of dominant firms, some dominant firms offer an “appropriability defense.” This defense is the claim that prohibiting the challenged conduct would lessen the dominant firm’s return to investment in research and development (R&D), undermine that firm’s incentive to innovate, and harm the prospects for industry innovation. An appropriability defense should be questioned, and often rejected, if the dominant firm would be expected to increase its own R&D effort in response to increased R&D by its rivals after liability on a dominant firm is imposed. An analytical framework for determining whether a …

Overlapping Financial Investor Ownership, Market Power, And Antitrust Enforcement: My Qualified Agreement With Professor Elhauge, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

As is well known among financial economists but not previously recognized within the antitrust community, large and diversified institutional investors such as BlackRock, Fidelity, State Street, and Vanguard collectively own roughly two-thirds of the shares of publicly traded U.S. firms overall, up from about one-third in 1980. Recent economic research involving airlines and banking raises the possibility that overlapping ownership of horizontal rivals by diversified financial institutions facilitates anticompetitive conduct throughout the economy, and that the problem has been growing for decades, unnoticed until now. This response to an article by Professor Einer Elhauge, explains why it may be more …

Exclusionary Conduct Of Dominant Firms, R&D Competition, And Innovation, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This paper evaluates the innovation consequences of antitrust enforcement against the exclusionary conduct of dominant firms through a Nash equilibrium model of research and development (R&D) competition to create new products. In the two-firm model, whether one firm regards the other firm’s R&D investment as a strategic complement or strategic substitute turns on an increasing differences condition: whether the first firm’s incremental benefit of increased R&D investment is greater if its rival’s R&D effort succeeds or if its rival’s R&D effort fails. Antitrust prohibitions on pre-innovation exclusion and post-innovation exclusion are found to be effective in different strategic settings: preventing …

Putting The 'Financial Stability' In Financial Stability Oversight Council, Hilary Allen

Articles in Law Reviews & Other Academic Journals

For all the ink that has been spilled on the topic of financial regulation since the financial crisis of 2007-2008, there has been little examination of the competing normative goals of financial regulation. Should the financial system be treated as an end in itself such that the efficiency of that system is the primary goal? Or should financial regulation instead treat the financial system as a means to the end of broader economic growth? This Article argues for the latter approach, and stakes out the controversial normative position that financial stability, rather than efficiency, should be the paramount focus of …

Antitrust, Competition Policy, An Inequality, Jonathan Baker, Steven Salop

Articles in Law Reviews & Other Academic Journals

Economic inequality recently has entered the political discourse in a highly visible way. This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, economic growth has effectively been appropriated by those already well off, leaving the median household less well off. The serious economic, political and moral issues raised by inequality can be addressed through a panoply of public policies including competition policy, the focus of this article. The article describes the channels through which market power contributes to inequality, and sets forth a range of possible antitrust policy …

Taking The Error Out Of 'Error Cost' Analysis: What's Wrong With Antitrust's Right, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article catalogues a series of erroneous assumptions about the current competition policy environment made by today’s antitrust conservatives. These errors inappropriately tilt the application of a neutral economic tool, decision theory, toward non-interventionist outcomes.

Where Do We Go From Here: Open Questions And Policy Considerations, Jonathan Baker, Fiona Scott Morton, Daniel Crane, Richard Steuer, Michael Whinston, C. Hemphill, Deborah Feinstein, Renata Hesse

Presentations

The Federal Trade Commission and the Antitrust Division of the Department of Justice held a one-day public workshop on June 23, 2014 to explore the economics and legal policy implications of certain pricing practices, such as loyalty and bundled pricing. The workshop, consisted of presentations and roundtable discussions, that focused on practices in which prices are explicitly or effectively contingent on commitments to purchase or sell a specified share or volume of a single product or a mix of multiple products. Workshop participants considered theoretical and empirical developments in the economic understanding of these practices, discussed developments in the relevant …

Channeling And Contending With Bill Kovacic, Jonathan Baker

Contributions to Books

This essay was written for a festschrift in honor of Professor William E. Kovacic. It discusses Prof. Kovacic’s work on the design of antitrust enforcement institutions, the interplay between the Chicago and Harvard schools in the transformation of antitrust that took place a generation ago, and the extent to which antitrust norms exhibit continuity over time. It will published in "William E. Kovacic - Liber Amicorum: An Antitrust Tribute - Vol. II," which is scheduled to be released in February 2014 by the Institute of Competition Law.

What Is 'Financial Stability' -The Need For Some Common Language In International Financial Regulation, Hilary Allen

Articles in Law Reviews & Other Academic Journals

Post-Crisis international financial regulation is animated by the buzzwords 'financial stability, " but surprisingly little attention has been paid to what these buzzwords actually mean. This Article argues that there are many-largely unexplored- disagreements regarding the meaning of 'financial stability, " and that this lack of consensus has the potential to cause a host of problems. Chief amongst these is that disagreement about the meaning of "financial stability" can thwart harmonized national implementation of international financial stability regulation. To draw attention to this largely-ignored definitional problem, and to start the process of addressing it, this Article proposes a working definition …

Channeling And Contending With Bill Kovacic, Jonathan B. Baker

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Patent Dialogue, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

Pay-To-Play: The Impact Of Group Purchasing Organizations On Drug Shortages, Christian Deroo

American University Business Law Review

No abstract provided.

Antitrust Enforcement And Sectoral Regulation: The Competition Policy Benefits Of Concurrent Enforcement In The Communications Sector, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

The US competition agencies – the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) – often share jurisdiction with sectoral regulators also charged with fostering competition, such as the Federal Communications Commission (FCC). This article highlights how this institutional structure – concurrent jurisdiction – helps protect competition through the lens of recent US experiences involving the communications industry. It argues that concurrent jurisdiction is likely most effective when the communications regulator has independent access to industry information to limit capture, when the communications regulator can take a long-term perspective, when the antitrust agency can …

Exclusion As A Core Competition Concern, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

A contemporary consensus in antitrust discourse inappropriately places exclusionary conduct at the periphery of competition policy, while putting collusion at the core. Contrary to that common view, exclusion is as important as collusion as a matter of precedent, the structure of doctrinal rules, economics, and sound competition policy. Courts treat exclusionary violations as serious competitive problems. An emerging doctrinal rule for truncated condemnation of “plain” exclusionary conduct (practices foreclosing rivals that lack a plausible efficiency justification) parallels the evolving judicial approach toward “naked” collusion. Exclusion and collusion can be understood within a common economic framework that emphasizes the close relationship …

The Competitive Consequences Of Most-Favored-Nation Provisions, Jonathan Baker, Judith A. Chevalier

Articles in Law Reviews & Other Academic Journals

"Most Favored Nation" contractual provisions have come under scrutiny in recent years by antitrust authorities in both the US and EU. MFNs are a type of vertical agreement between suppliers and buyers. The literature has recognized that there may be efficiency rationales for these arrangements but the literature has also recognized that these arrangements have anticompetitive potential. In this paper, we distill the economics literature on MFNs to explore both possibilities.

Economics And Politics: Perspectives On The Goals And Future Of Antitrust, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This article examines the roles of economics and politics in U.S. antitrust from several perspectives. It explains why the modern debate over the economic welfare standard that enforcers and courts should pursue is unsatisfying. It connects economics and politics by describing antitrust’s economic goals as the product of a mid-20th century political understanding about the nature of economic regulation that has continued in force to this day. To protect that understanding, it explains, antitrust rules should now be implemented using a qualified consumer welfare standard. The article also identifies contemporary political tensions that threaten to create regulatory gridlock, or even …

Telecommunications: Communications Law Reform, Jonathan Baker, Robert Mcdowell, Ajit Pai, Daniel Crane, Maureen Ohlhausen, Jennifer Elrod

Presentations

The transcript was published on 2013 Journal of Law, Technology & Policy University of Illinois Issue 1.

Competitive Harm From Mfns: Economic Theories, Jonathan Baker

Presentations

No abstract provided.

Evaluating Merger Enforcement During The Obama Administration, Jonathan Baker, Carl Shapiro

Articles in Law Reviews & Other Academic Journals

We recently concluded that government merger enforcement statistics "provide clear evidence that the Obama Administration reinvigorated merger enforcement, as it set out to do." Three weeks later, in an article published inthe Stanford Law Review Online, Professor Daniel A. Crane reached the opposite conclusion, claiming that "[t]he merger statistics do not evidence 'reinvigoration' of merger enforcement under Obama."

Cocos Can Drive Markets Cuckoo, Hilary Allen

Articles in Law Reviews & Other Academic Journals

Bank-issued contingent-convertible capital instruments (known colloquially as "cocos ") are assumed to be a less costly substitute for common equity that will improve the stability of banks in a crisis situation. However, cocos are new and untested instruments. In a future financial crisis they are likely to incentivize behaviors and trading strategies (notably panic selling short selling, and the use of credit default swaps) that have the potential to harm confidence in banks. Without confidence, banks will have difficulty funding themselves and the likely consequences of bank difficulties (credit crunches and possible bailouts) will be felt by society at large. …

The Perils Of Armchair Analysis: Evaluating Merger Enforcement During The Obama Administration, Jonathan Baker, Carl Shapiro

Articles in Law Reviews & Other Academic Journals

This brief comment responds to the analysis of Obama administration merger policy in Daniel A. Crane, Has the Obama Justice Department Reinvigorated Antitrust Enforcement? 65 STAN. L. REV. ONLINE 13 (2012).

International Investments Arbitration: Winning, Losing And Why, Susan D. Franck

Contributions to Books

In late 2008, as financial markets were crashing, the Vale Columbia Center on Sustainable International Investment launched the Columbia FDI Perspectives. The first Perspective, entitled “The FDI recession has begun,” correctly forecast an FDI recession in the following year. From that first Perspective in late 2008 to the end of 2010, the series published thirty-three concise notes on topical FDI-related issues by diverse experts in the field. The purpose of these Perspectives is to inform readers about some of the important issues and trends in the contemporary debate on FDI, and to promote a wide-ranging discussion about the policy implications …

Credit Default Swaps And Clearing, Nazanin Baseri

Legislation and Policy Brief

In an article from 2000, an investigative journalist from The Banker warned against the hidden dangers of credit default swaps (CDS). Although CDSs can be a useful financial instrument for the banking industry, the article warned of the anonymity of credit derivatives, lack of transparency, and the potential for disaster. In an unfortunately accurate conclusion, the journalist opined that a crisis might occur because banks may not put in place the proper risk control systems in time to avert a disaster. Fast forward eight years and the financial meltdown of 2008 developed into one of the largest economic disasters in …

Sector-Specific Competition Enforcement At The Fcc, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This comment explains how and why sector-specific enforcement by the Federal Communications Commission (FCC) complements generalist competition enforcement by the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC), to the benefit of competition in the communications industry. It illustrates ways in which a sector-specific agency such as the FCC can foster competition by comparing merger reviews by the FCC and DOJ in the wake of the 1996 Telecommunications Act.

Comcast/Nbcu: The Fcc Provides A Roadmap For Vertical Merger Analysis, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

The FCC’s analysis of the Comcast-NBCU transaction fills a gap in the contemporary treatment of vertical mergers by providing a roadmap for courts and litigants addressing the possibility of anticompetitive exclusion. The FCC identified the factors any judicial or administrative tribunal would likely consider today in analyzing whether a vertical merger would lead to anticompetitive input or customer foreclosure, and a range of economic methods potentially relevant to applying that template to the facts of a transaction. Notwithstanding the difference between administrative adjudication under a public interest standard and judicial decision-making under the Clayton Act, the legal framework and economic …