Law Commons^™

The First Antistrust Statute, David K. Millon

David K. Millon

None available.

The Economics Of Payment Cards, Marc Rysman, Julian Wright

Marc Rysman

We review the law and economics of payment cards. We focus on the recent economics literature on two-sided markets, and discuss the antitrust and regulatory treatment of interchange fees, card surcharging, and other issues.

Lessons From At&T'S Flop: How To Grow In The Technology Industry While Avoiding Section 7 Antitrust Obstacles, John T. Soma

JOHN T SOMA

This article is one of the first to provide a comprehensive analysis of AT&T’s attempted merger with T-Mobile USA, and the Oracle/PeopleSoft successful merger. As seen from these two mergers, the outcome of Section 7 cases is no longer predictable. Our article reviews these two mergers, and concludes with a discussion of the lessons learned and outlines the future trends expected in tech mergers. This article is significant and timely because we believe that the risk of failure in a large scale tech merger is large enough, that other approaches need to be taken to achieve the desired merger goals, …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes

Warren S Grimes

The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The paper addresses judicial activism in Supreme Court decisions. It defines judicial activism as decisions that use statutory or constitutional provisions to reach broad decisions that make it difficult or impossible for democratically elected officials in local, state or federal government to implement a desired policy. It offers six content-neutral tests for measuring judicial activism and applies them to key Supreme Court decisions involving First Amendment election law and the Sherman Antitrust Act. A final section of the paper reviews possible reform options aimed at restoring the Court to a role as a traditional judicial tribunal that decides cases or …

The Importation Of The Rule Of Reason In European Competition Law: The Implications Of Economic And Behavioral Theories And The Case Of Port Services, Davide Maresca

Davide Maresca

The regulation of international markets is nowadays faced with an important debate emerging from the study that started long ago at the Chicago School, passed through behavioral theories, and arrived in the European Union model. Two main theories set against each other concerning the market and antitrust regulation. The first one, law and economics theory, is based on the economic analysis of the costs and benefits of restraint of trade, and justifies a restraint only for economic reasons. The second, behavioral law and economics theory, is based on the empirical analysis of the regulation through instruments taken from social sciences. …

Clarifying State Action Immunity Under The Antitrust Laws: Ftc V. Phoebe Putney Health System, Inc., Angela Diveley

Angela Diveley

The tension between federalism and national competition policy has come to a head. The state action doctrine finds its basis in principles of federalism, permitting states to replace free competition with alternative regulatory regimes they believe better serve the public interest. Public restraints have a unique ability to undermine the regime of free competition that provides the basis of U.S.- and state-commerce policies. Nevertheless, preservation of federalism remains an important rationale for protecting such restraints. The doctrine has elusive contours, however, which have given rise to circuit splits and overbroad application that threatens to subvert the state action doctrine’s dual …

Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao

Marina Lao

The core of the gathering antitrust case against Google seems to be that it favors its own or its affiliates’ content over that of its competitors in ancillary markets in the unpaid search results. Seeking the competitive advantages inherent in integration, which is what preferential treatment of one’s own property is about, is usually not unlawful. This paper examines whether “essential facilities” and the duty-to-deal nonetheless provide a basis for prohibiting this practice, as some have suggested, and concludes that they do not.

On the threshold monopoly power issue, most assume, based on Google’s high percentage of general search queries, …

Behavioral Exploitation Antitrust In Consumer Subprime Mortgage Lending, Max Huffman, Daniel Heidtke

Max Huffman

We analyze whether antitrust might provide an alternative and perhaps superior approach to regulating consumer subprime mortgage lending. Behavioral exploitation antitrust targets commercial conduct of the sort that was observed in consumer subprime mortgage lending in the years leading up to 2007. The welfare effects of that conduct are easily established. Antitrust-based regulation can mitigate those welfare effects. Regulation that does exist, which operates at the level of the individual transaction, may be easily avoided, may be short-sighted, may suffer from enforcement problems that public choice theory explains, and/or may overreach by removing consumer choice. We show that antitrust enforcement …

Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao

Marina Lao

The core of the gathering antitrust case against Google seems to be that it favors its own or its affiliates’ content over that of its competitors in ancillary markets in the unpaid search results. Seeking the competitive advantages inherent in integration, which is what preferential treatment of one’s own property is about, is usually not unlawful. This paper examines whether “essential facilities” and the duty-to-deal nonetheless provide a basis for prohibiting this practice, as some have suggested, and concludes that they do not.

On the threshold monopoly power issue, most assume, based on Google’s high percentage of general search queries, …

Search, Essential Facilities, And The Antitrust Duty To Deal, Marina Lao

Marina Lao

The core of the gathering antitrust case against Google seems to be that it favors its own or its affiliates’ content over that of its competitors in ancillary markets in the unpaid search results. Seeking the competitive advantages inherent in integration, which is what preferential treatment of one’s own property is about, is usually not unlawful. This paper examines whether “essential facilities” and the duty-to-deal nonetheless provide a basis for prohibiting this practice, as some have suggested, and concludes that they do not.

On the threshold monopoly power issue, most assume, based on Google’s high percentage of general search queries, …

Intellectual Property Wrongs, Robin Feldman

Robin C Feldman

Intellectual property has become a pervasive presence in society. Seeping into every nook and cranny of American life, intellectual property casts a protective haze over everything from the words of an email to the sequence of genes. Increasingly, these rights are being pressed into the service of schemes that have little to do with the advancement of societal goals and much to do with societal waste. What do we, as a society, do when the rights that we have created with such lofty goals and noble heart are diverted toward less admirable pursuits, that is, when IP rights become the …

The New News: Challenges Of Monetization, Engagement, And Protection Of News Organizations' Online Content, Christine Katherine Lesicko

Christine K Lesicko

As news organizations continue to struggle with their business models and ways to best employ new technology, advertising and subscription revenues continue to fall or remain stagnant and layoffs continue to rise. This study examines potential ways for news organizations to both protect their content from unwanted piracy and monetize content in order to continue to produce quality and timely news. This paper explores the history of news and protections given to news content by Congress and the courts. The study goes on to examine court cases that influenced the current legal landscape of content protection for news organizations. The …

Regulators As Market-Makers: Accountable Care Organizations And Competition Policy, Thomas L. Greaney

Thomas L. Greaney

Of the many elements animating structural change under health reform, Accountable Care Organizations have drawn the greatest attention. The ACO strategy entails regulatory interventions that at once aim to reshape the health care delivery system, improve outcomes, promote adoption of evidence based medicine and supportive technology, and create a platform for controlling costs under payment system reform. Ambitious aims to be sure. Implementation, however, has proved a wrenching process. This article looks at the intersection of markets and regulation under the Affordable Care Act. Specifically, it analyzes regulatory interventions under the Medicare Shared Savings Program designed to foster commercial market …

An Invisible Union For An Invisible Labor Market: College Football And The Union Substitution Effect, Michael H. Leroy

Michael H LeRoy

Should college football players have collective bargaining rights? The NCAA’s contractual relationship with student athletes provides grants-in-aid while strictly limiting their earnings. This model is premised on the belief that players are amateurs. But this view is contradicted by the heavy commercialization of NCAA football, including a rich championship playoff. Schools reap billions of dollars from TV and licensing agreements, a championship, numerous bowls, and ticket sales, but football players rarely receive enough aid to pay their full cost of attending school. The fact that TV deals minimize competition between the NCAA and NFL, so that each purveyor of football …

Beyond Detection: The Management Of Cartel Cases, Carlos Emmanuel Joppert Ragazzo, Diogo Thomson De Andrade

carlos ragazzo

No abstract provided.

Beyond Microsoft: Intellectual Property, Peer Production And The Law’S Concern With Market Dominance., Daryl Lim

Daryl Lim

No abstract provided.

Viral Open Source: Competition Vs. Synergy, Michal Gal

Michal Gal

The creation of free and open source software (FOSS) through social networks has been celebrated as one of the most interesting and inspiring developments of the information age. The main legal platform selected for facilitating this collaborative creation is the GNU General Public License (GPL). Software released under the GPL enables anyone to use, modify, and distribute the code. Yet, these rights are contingent upon virality: every copy or work based on the original code must also be subject to such terms and conditions. This article analyzes the interesting and intricate effects of virality on welfare and innovation. Virality increases …

Grounding Into A Double Standard: Understanding & Repealing The Curt Flood Act, Brett J. Butz

Brett J Butz

This article calls for an end to Major League Baseball’s statutory exemption from antitrust regulation for acts that are considered part of the “business of baseball.” The Curt Flood Act, as it is colloquially called, was a Congressional mistake; the product years of faulty analysis and absurd holdings by the Supreme Court. This article will explain how the exemption came to fruition, outline the various problems with its inception, and conclude by proposing that Major League Baseball should be subject to antitrust regulations, just like all other professional sports leagues.

Brands As Food For Thought: The Case For Regulating Food Brands, Amir H. Khoury

Amir Khoury

Every brand, in its original capacity as a trademark, is intended to identify and to differentiate a certain type of product or service from other competing products or services. This is the original purpose of marks. But, over time, this (original) purpose has been overrun by a different reality. Food Brands now harness a dual power or impact. The first refers to their Market Impact i.e. their ability to overshadow competing brands, and the other relates to their Consumption Impact; i.e. their ability to generate wants and to shape the image of the foods that we consume. This is not …

Joint Ventures And Other Competitor Collaborations As Single Entity—What Did American Needle Do To Copperweld And What About Dagher?, Ernest N. Reddick

Ernest N. Reddick

Summary of Antitrust Article Regarding Single Entity Competitor Collaborations

(American Needle, Dagher, Copperweld)

By Ernest N. Reddick

The “intraenterprise conspiracy doctrine” had held that, since a parent corporation and its wholly-owned subsidiary were two separate legal entities, they were also two separate entities for purposes of Section 1 of the Sherman Act (the principal U.S. law against illegal conspiracies and other contracts in restraint of trade). In the world of antitrust conspiracy, “it takes two to tango”, and a parent and its subsidiary were two entities-not one.

The U.S. Supreme Court, in the 1984 seminal case of Copperweld Corp. v. …

Go To Our Website For More (Of The Same): Reassessing Federal Policy Towards Newspapers Mergers And Cross Media Ownership And The Harm To Localism, Diversity And The Public Interest, Jason Zenor

Jason Zenor

Newspapers are workhorse of local news industry and this information is important in order to have an informed citizenry. But, the conventional wisdom is that newspapers are an endangered species and that something drastic needs to be done if this form of media is going to survive. Many proactive solutions have been forwarded such as charging for online content, using tablet and smartphone technology to publish newspapers and making newspapers more assessable to younger and more diverse generations. Another more conceding solution is to allow for greater relaxation on newspapers mergers and cross media ownership rules. But, this solution would …

Vendite Online Nei Networks Di Distribuzione Selettiva: Il Caso Pierre Fabre, Valerio Cosimo Romano

Valerio Cosimo Romano

No abstract provided.

La Natura Della Responsabilità Da Abuso Di Dipendenza Economica Tra Contratto, Illecito Aquiliano E Culpa In Contrahendo, Valerio Cosimo Romano

Valerio Cosimo Romano

No abstract provided.

A Comparison Of Anti-Manipulation Rules In U.S. And Eu Electricity And Natural Gas Markets: A Proposal For A Common Standard, Shaun D. Ledgerwood, Dan Harris

Shaun D. Ledgerwood

In this paper, we describe the development and current status of anti-manipulation rules as they apply to wholesale electricity and natural gas markets in the United States and the European Union, including the institutions that are responsible for overseeing these rules. We then compare and contrast these jurisdictions to discuss similarities, differences, and potential gaps in coverage within and across their internal markets. We note that while the behavior prohibited by the U.S. and EU statutes is remarkably similar, there is in fact no common standard for defining market manipulation. The absence of a common EU/U.S. framework for examining manipulative …

Embryo Disposition Agreements: The Effect Of Personal Autonomy, Constitutional Rights, And Public Policy On Enforceability, Damages, And Remedies, Nicholas Seger

Nicholas D. Seger

No abstract provided.

The Big Banks: Background, Deregulation, Financial Innovation And Too Big To Fail, Charles W. Murdock

Charles W. Murdock

Summary: The Big Banks: Background, Deregulation, Financial Innovation and Too Big to Fail

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

League Structure & Stadium Rent Seeking — The Role Of Antitrust Revisited, Tonja Jacobi

Tonja Jacobi

North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. We argue that no inherent cultural or political cross-Atlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries—the structure of league control—that enables rent seeking by American sporting teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support our claim, …