Law Commons^™

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

William & Mary Law Review

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

William & Mary Law Review

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

William & Mary Law Review

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each other (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …

Wickard Through An Antitrust Lens, Alan J. Meese

William & Mary Law Review

No abstract provided.

The Present New Antitrust Era, Barak Orbach

William & Mary Law Review

Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great …

“Competition Policy In Its Broadest Sense:” Michael Pertschuk’S Chairmanship Of The Federal Trade Commission 1977-1981, William E. Kovacic

William & Mary Law Review

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, …

Antitrust And The Politics Of State Action, Thomas B. Nachbar

William & Mary Law Review

In North Carolina State Board of Dental Examiners, the Court refused to exempt the board from the second element of Parker immunity—active supervision by the state—because the Board was made up largely of “active market participants.” This Article argues that the “active market participant” rule laid out in North Carolina State Board, while intuitively appealing, ignores important political values represented by antitrust law, values most evident in the context of state action immunity. By focusing on the potential market harm from self-interested regulators, the Court ignored a series of political harms inherent in the structure of the North …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

William & Mary Law Review

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

Anticompetitive Manipulation Of Rems: A New Exception To Antitrust Refusal-To-Deal Doctrine, Tyler A. Garrett

William & Mary Law Review

No abstract provided.

Measuring Monopsony: Using The Antitrust Toolbox To Protect Market Competition And Help The Television Consumer, Jacob M. Derr

William & Mary Law Review

No abstract provided.

Antitrust Error, Alan Devlin, Michael Jacobs

William & Mary Law Review

Fueled by economics, antitrust has evolved into a highly sophisticated body of law. Its malleable doctrine enables courts to tailor optimal standards to a wide variety of economic phenomena. Indeed, economic theory has been so revolutionary that modern U.S. competition law bears little resemblance to that which prevailed fifty years ago. Yet, for all the contributions of economics, its explanatory powers are subject to important limitations. Profound questions remain at the borders of contemporary antitrust enforcement, but answers remain elusive. It is because of the epistemological limitations of economic analysis that antitrust remains unusually vulnerable to error. The fear of …

The Economics Of Deal Risk: Allocating Risk Through Mac Clauses In Business Combination Agreements, Robert T. Miller

William & Mary Law Review

In any large corporate acquisition, there is an interim period between the time that the parties enter into a merger agreement and the time the transaction is effected and the purchase price paid. During this period, the business of the acquired company may deteriorate, thus raising the question of whether the counterparty must perform on the agreement and pay the purchase price. Merger agreements typically address this problem through "material adverse change" (MAC) clauses, which provide that a party may walk away from the transaction without penalty if the counterparty has suffered a MAC. Although the definition of MAC is …

Guideline Institutionalization: The Role Of Merger Guidelines In Antitrust Discourse, Hillary Greene

William & Mary Law Review

With the growth of the administrative state, agency-promulgated enforcement policy statements, typically referred to as guidelines, have become ubiquitous in the U.S. federal system. Yet, the actual usage and impact of such guidelines is poorly understood. Often the issuing agencies declare the guidelines to be nonbinding, even for themselves. Notwithstanding this disclaimer, the government, private parties, and even the courts frequently rely on the guidelines in a precedent-like manner. In this Article, Professor Greene examines the evolution of one system of enforcement policy guidelines-the U.S. federal antitrust merger guidelines--and finds that these guidelines have acted as a stealth force on …

The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter

William & Mary Law Review

When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private "monopolies," in contrast to the general antimonopoly thrust of the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners-or excuses otherwise infringing activity on the part of IP defendants-expressly for the purpose of promoting competition. It does so even though antitrust law -if one were to apply it at all under analogous circumstances-would not find anticompetitive harm without conducting a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient …

The Elephant In The Courtroom: Litigating The Premerger Fix In Arch Coal And Beyond, Katherine A. Ambrogi

William & Mary Law Review

No abstract provided.

The Political Economy Of International Antitrust Harmonization, John O. Mcginnis

William & Mary Law Review

No abstract provided.

Surviving The Shipwreck: A Proposal To Revive The Failing Division Defense, Amanda L. Wait

William & Mary Law Review

No abstract provided.

A Proposed Antitrust Approach To High Technology Competition, Thomas A. Piraino Jr.

William & Mary Law Review

No abstract provided.

Why Premerger Review Needed Reform - And Still Does, Andrew G. Howell

William & Mary Law Review

No abstract provided.

The Local Law Of Global Antitrust, Edward T. Swaine

William & Mary Law Review

No abstract provided.

Multiemployer Bargaining, Antitrust Law, And Team Sports: The Contingent Choice Of A Broad Exemption, Michael C. Harper

William & Mary Law Review

No abstract provided.

Preventing Predatory Abuses In Litigation Between Business Competitors: Focusing On A Litigant's Reasons For Initiating The Litigation To Ensure A Balance Between The Constitutional Right To Petition And The Sherman Act's Guarantee Of Fair Competition In Business, Scott D. Helsel

William & Mary Law Review

No abstract provided.

Bank Mergers And The Antitrust Laws: The Case For Dual State And Federal Enforcement, Robert F. Roach

William & Mary Law Review

No abstract provided.

Reconciling Competition And Cooperation: A New Antitrust Standard For Joint Ventures, Thomas A. Piraino Jr.

William & Mary Law Review

No abstract provided.

Public Choice, Public Interest, And The Soft Drink Interbrand Competition Act: Time To Derail The "Root Beer Express"?, Allan W. Vestal

William & Mary Law Review

No abstract provided.

An Antitrust Solution To The New Wave Of Predatory Patent Infringement Litigation, Michael Paul Chu

William & Mary Law Review

No abstract provided.