Law Commons^™

Addressing Big Tech's Market Power: A Comparative Institutional Analysis, Thomas A. Lambert

Faculty Publications

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union's Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established "Digital Markets Unit." After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert

Faculty Publications

"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market …

The Limits Of Antitrust In The 21st Century, Thomas A. Lambert

Faculty Publications

Antitrust is having a moment. Commentators and policymakers, both progressive and conservative, are calling for increased antitrust enforcement to address all manner of social ills. From technology platforms' power over speech and encroachments on user privacy to wage stagnation in more concentrated labor markets, to competition softening from ever-larger index funds, to growing income inequality, reduced innovation, and threats to democracy itself - the list of maladies for which antitrust has been proposed as a remedy goes on and on.

This Article revisits The Limits of Antitrust in light of the current antitrust moment. Part I describes the central components …

The Case For Doing Nothing About Institutional Investors' Common Ownership Of Small Stakes In Competing Firms, Thomas A. Lambert, Michael E. Sykuta

Faculty Publications

Recent empirical research purports to demonstrate that institutional investors' "common ownership " of small stakes in competing firms causes those firms to compete less aggressively, injuring consumers. A number of prominent antitrust scholars have cited this research as grounds for limiting the degree to which institutional investors may hold stakes in multiple firms that compete in any concentrated market. This Article contends that the purported competitive problem is overblown and that the proposed solutions would reduce overall social welfare. With respect to the purported problem, we show that the theory of anti-competitive harm from institutional investors' common ownership is implausible …

Calm Down About Common Ownership, Thom Lambert, Michael E. Sykuta

Faculty Publications

Proponents of additional antitrust intervention to police common ownership simply have not made their case. Their theory as to why current levels of intra-industry diversification would cause consumer harm is implausible and the empirical evidence they say demonstrates such harm is both scant and methodologically suspect. The policy solutions they have proposed for dealing with the purported problem would radically rework an industry that has provided substantial benefits to investors, raising the costs of portfolio diversification and enhancing agency costs at public companies. Courts and antitrust enforcers should reject their calls for additional antitrust intervention to police common ownership.

A Solution In Search Of A Problem At The Biologics Frontier, Erika Lietzan

Faculty Publications

This short paper comments on Professor Carrier's new article, Biologics: The New Antitrust Frontier. His article makes a profound initial contribution to a new area of scholarship, based on a large body of prior work considering antitrust issues relating to small molecule drugs. But Professor Carrier’s article, like my own forthcoming piece on innovation and competition in the biologics marketplace, is inherently speculative. We are making our best judgments about the nature of a still emerging marketplace and likely conduct in that marketplace, based on our understandings of a new regulatory framework that is itself still emerging, the broader legal …

Recognizing The Limits Of Antitrust: The Roberts Court Versus The Enforcement Agencies, Thom Lambert, Alden F. Abbott

Faculty Publications

In his seminal 1984 article, The Limits of Antitrust, Judge Frank Easterbrook proposed that courts and enforcers adopt a simple set of screening rules for application in antitrust cases, in order to minimize error and decision costs and thereby maximize antitrust's social value. Over time, federal courts in general, and the U.S. Supreme Court in particular, under Chief Justice Roberts have in substantial part adopted Easterbrook's "limits of antitrust" approach, thereby helping to reduce costly antitrust uncertainty. Recently, however, antitrust enforcers in the Obama Administration (unlike their predecessors in the Reagan, Bush, and Clinton Administrations) have been less attuned to …

Defining Unreasonably Exclusionary Conduct: The 'Exclusion Of A Competitive Rival' Approach, Thom Lambert

Faculty Publications

Unreasonably exclusionary conduct, the element common to monopolization and attempted monopolization offenses under Section 2 of the Sherman Act, remains essentially undefined. Federal courts, including the U.S. Supreme Court, have purported to define the term, but the definitions they have offered are so indeterminate as to be, in the words of one prominent commentator, “not just vague but vacuous.” Seeking to fill the void left by the courts, antitrust scholars have in recent years proposed four universal definitions of unreasonably exclusionary conduct. Each, however, is deficient: One would fail to deter a substantial amount of anticompetitive conduct, and the other …

Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert

Faculty Publications

This article asserts a comprehensive response to Elhauge’s provocative arguments. With respect to tying, the article shows that governing Supreme Court precedent does not deem the non-foreclosure “power” effects of the practice to be anticompetitive and that those effects are unlikely to reduce social welfare in the long run, especially after accounting for dynamic efficiencies. With respect to bundled discounting, the article shows that Elhauge’s proposed liability rule is both inapposite to consumer harm and inadministrable and that both “linked” market foreclosure and a form of below-cost pricing are necessary for anticompetitive harm and should therefore be prerequisites to antitrust …

The Roberts Court And The Limits Of Antitrust, Thom Lambert

Faculty Publications

This article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.

Book Review: Reviewing Part Iii Of Innovation For The 21st Century: Harnessing The Power Of Intellectual Property And Antitrust Law, Dennis D. Crouch

Faculty Publications

I have very much enjoyed reading Professor Michael Carrier's important new book on the intersection of law and innovation, and greatly appreciate his contributions to the field. In this short essay, I will focus my discussion on my sole area of expertise—patent law. Carrier takes-on the subject of patents in Part III of his book. I agree with most of what Carrier writes. To make this essay more interesting, I focus on some of our areas of apparent disagreement.

A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert

Faculty Publications

This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.

Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch

Faculty Publications

This paper presents a normative study of patent applicant use of invention-date rights during ex parte prosecution.

Dr. Miles Is Dead. Now What?: Structuring A Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert

Faculty Publications

This article critiques six approaches that have been proposed for evaluating minimum RPM and offers an alternative approach. The six approaches critiqued are (1) the Brandeisian, unstructured rule of reason; (2) Judge Posner's rule of per se legality; (3) the approach advocated by 27 states in the recent Nine West case; (4) the approach adopted by the Federal Trade Commission in that case; (5) the approach advocated by economists William Comanor and F.M. Scherer; and (6) the approach proposed in the Areeda & Hovenkamp Antitrust Law treatise. Finding each of these approaches deficient, the article proposes an alternative evaluative approach …

Four Lessons From The Whole Foods Case, Thom Lambert

Faculty Publications

One of the most maligned antitrust decisions in history involved a merger of grocery store chains. Indeed, even those voices inclined toward substantial antitrust intervention believe the U.S. Supreme Court erred in its 1966 Von's Grocery decision, which condemned the merger of the third- and sixth-largest grocery store chains in Los Angeles. For example, the president of the reliably interventionist American Antitrust Institute conceded that the Supreme Court "probably went too far" and acknowledged that "if Von's Grocery had remained the rule, all of our industries would be highly fragmented and consumers would have lost out on many cost-cutting efficiencies." …

Antitrust (Over-?) Confidence, Thom Lambert, Joshua D. Wright

Faculty Publications

On October 5, 2007, a group of antitrust scholars convened on Chicago's Near North Side to discuss monopolization law. In the course of their freewheeling but fascinating conversation, a number of broad themes emerged. Those themes can best be understood in contrast to a body of antitrust scholarship that was born six miles to the south, at the University of Chicago. Most notably, the North Side discussants demonstrate a hearty confidence in the antitrust enterprise - a confidence that is not shared by Chicago School scholars, who generally advocate a more modest antitrust. As scholars who are more sympathetic to …

Overvalued Equity And The Case For An Asymmetric Insider Trading Regime, Thom Lambert

Faculty Publications

This article argues for an asymmetric insider trading policy under which insider trading that decreases the price of an overvalued stock is generally permitted, but insider trading that increases the price of an undervalued stock is generally prohibited. Concluding that the net investor benefits of price-decreasing insider trading exceed those of price-enhancing insider trading, the article argues that an asymmetric insider trading regime likely represents the bargain that shareholders and corporate managers would strike if they were legally and practically able to negotiate an insider trading policy. Current insider trading doctrine would permit regulators to impose such an asymmetric insider …

Tweaking Antitrust's Business Model , Thom Lambert

Faculty Publications

This essay evaluates Hovenkamp's suggestions, concluding that most are sound, that a few might be slightly revised to enhance their effectiveness or administrability, and that a couple are downright unwise. In particular, the essay criticizes Hovenkamp's call for abandonment of the indirect purchaser rule and his proposed test for identifying exclusionary conduct under Section 2 of the Sherman Act.

The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert

Faculty Publications

The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds as follows: …

Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert

Faculty Publications

A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert

Faculty Publications

The Executive Committee of the Association of American Law Schools has adopted a Statement of Good Practices that purports to limit the times when law schools may make offers to hire faculty members at other schools. Schools are generally not to make offers for indefinite appointments to professors on other faculties after March 1, subject to extension for two months with the consent of the incumbent's dean. They also are not to make offers contemplating resignation from a current faculty position more than two weeks following those deadlines. Proceeding on the assumption that the AALS policy, whose express terms are …

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes

Faculty Publications

The purpose of this essay is merely to examine the pertinent antitrust issues. The essay proceeds on the assumption that the AALS policy, whose terms are precatory, speaks to what is in fact an agreement among law schools. As noted below, the policy itself contemplates that law school deans will seek waivers, in individual cases, extending the time periods for up to two months. Were the policy to be litigated, law schools might dispute the existence of an agreement. We believe, though, that the nature of the policy strongly suggests that it represents an agreement among law schools and that …

Evaluating Bundled Discounts, Thom Lambert

Faculty Publications

This article identifies and critiques five attempts courts and commentators have made at articulating such an evaluative approach and, finding each approach lacking, proposes an alternative evaluative approach. The proposed approach would presume the legality of above-cost bundled discounts but would permit that presumption to be rebutted by a plaintiff that proved certain facts demonstrating that it had fully exhausted its competitive options and was, or was likely to become, as efficient as the discounter. The recommended approach would be easily administrable and would include clear safe harbors to ensure that procompetitive bundled discounting is not discouraged.

Examining Compliance With Fiduciary Duties: A Study Of Real Estate Agents (With V. Carlos Slawson Jr.), Royce De R. Barondes, Carlos V. Slawson Jr.

Faculty Publications

The traditional default rule in the United States has been that, where two brokerage firms participate in the sale of a piece residential real estate, both firms are fiduciaries of the seller. This article provides original empirical evidence showing to be erroneous a common assumption - that, in conflicts between their principals and third parties, real estate agents promote their principals' interests - underlying revisions made in a number of jurisdictions to those principles in the last twenty years. This article examines whether agents act in accordance with their duties along two dimensions: First, we hypothesize that selling agents may …

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

Faculty Publications

The discussion in this Article is divided into four parts. Part I summarizes the landscape, past and present, with respect to insurer collaboration in underwriting. Part II considers whether, absent an antitrust exemption, multiinsurer agreements and collaborative insurer standard-setting with respect to underwriting violate federal antitrust law. This Part also evaluates whether insurers, to the extent potential federal liability exists, enjoy any kind of statutory or judicial exemption from federal law for such activities. Part III considers the same questions addressed in Part II but in the context of state antitrust laws. Because antitrust law, including the law of antitrust …

The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers

Faculty Publications

During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …

Litigation As A Predatory Practice, Gary Myers

Faculty Publications

This article reviews and evaluates the sham litigation case law, finding that many courts have allowed immunity too readily or on inappropriate grounds. It attempts to develop comprehensive standards for antitrust claims based on sham litigation.

Antitrust And Employer Restraints In Labor Markets, Robert H. Jerry Ii

Faculty Publications

This Article argues that the Sherman Act regulates concerted employer activity in the labor market only if such activity restrains or attempts to restrain the product market. After discussing the legislative history of the Act, the Article examines and synthesizes two conflicting lines of cases. Finally, the Article suggests how courts should dispose of challenges to employer conduct and posits the basis for a unified theory of labor-antitrust law.