Law Commons^™

Peeling Apple: Antitrust Standing & Intermediary Defendants, John E. Lopatka

Journal Articles

When market intermediaries unlawfully acquire market power, vertically related market participants may sue under the antitrust laws to recover damages. Their ability to recover depends upon an intricate set of doctrines that define private standing, including the indirect-purchaser rules set down by the Supreme Court most notably in Illinois Brick. In Apple Inc. v. Pepper, the Court decided the application of the indirect-purchaser rules to a particular kind of intermediary, a platform in a two-sided market. The Article explores private antitrust standing doctrines as they apply to market intermediaries, using Apple to frame the exposition. The Court there held that …

A Regulatory Solution To Better Promote The Educational Values And Economic Sustainability Of Intercollegiate Athletics, Stephen F. Ross, Matt Mitten

Journal Articles

Currently there are several pending antitrust suits challenging NCAA rules restricting the economic benefits intercollegiate athletes may receive for their sports participation. Although remedying the inherent problems of commercialized college sports (primarily Division I football and men’s basketball) is a laudable objective, a free market solution mandated by antitrust law may have unintended adverse consequences. Judicial invalidation of these rules may inhibit universities from providing many athletes with a college education they would not otherwise receive, by eliminating or reducing the value of scholarships for many players whose economic value is less than the cost of an education. A wholly …

Accommodating Labor And Antitrust, Stephen F. Ross

Journal Articles

In this article, the author comments on Professor Michael LeRoy's article "Federal Jurisdiction in Sports Labor Disputes" (2012 Utah L. Rev. 815) and explains why he disagrees with the claim that federal courts improperly invoke the Sherman Act in sports labor disputes.

The Supreme Court's Renewed Focus On Inefficiently Structured Joint Ventures, Stephen F. Ross

Journal Articles

Antitrust courts and commentators have long appreciated that joint ventures among rival firms have the potential to provide benefits to consumers and the economy through synergies and economies of scale, but also raise the potential of lessening competition among the venture principals. The case law and academic literature have often ignored, however, the potential harm that befalls consumers when joint ventures with market power are structured in a manner that gives the principals the ability to direct policy and a strategy in a manner that advances their parochial self-interest, rather than the interests of the venture-as-a-whole. The Supreme Court's recent …

Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer

Journal Articles

This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern …

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Journal Articles

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski

Journal Articles

Antitrust law generally favors joint ventures that allow separate firms to integrate economic functions while continuing to compete as independent entities. In evaluating the risks to competition that joint ventures could pose, insufficient attention has been paid to the risk that joint ventures with market power may be structured so that the parties, acting in their independent self interest, will prevent the venture from providing innovative goods and services responsive to consumer demand. In these cases, it may be better if a single firm provided services rather than having them provided jointly.

We illustrate this problem by challenging the conventional …

Guilds At The Millennium: Antitrust And The Professions: Introduction, Susan Beth Farmer

Journal Articles

This Article is an Introduction to the Symposium Issue of the Loyola Consumer Law Review. The papers published in the symposium issue were originally presented at the meeting of the Section on Antitrust and Economic Regulation of the Association of American Law Schools (AALS) at the Association Annual Conference in 2002.

Antitrust Options To Redress Anticompetitive Restraints And Monopolistic Practices By Professional Sports Leagues, Stephen F. Ross

Journal Articles

The hallmark of an antitrust violation is an agreement which has the effect of raising price, lowering output, or rendering output unresponsive to consumer demand. Owners of clubs comprising Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League engage in a variety of exploitative activities that consumers cannot avoid by substituting rival products. The purpose of this Article is to analyze specific areas where these monopoly sports leagues harm a variety of groups, through the maintenance of a monopolistic structure that precludes competitive entry, or through specific restraints that have demonstrable anticompetitive effects. …

More Lessons From The Laboratories: Cy Pres Distributions In Parens Patriae Antitrust Actions Brought By State Attorneys General, Susan Beth Farmer

Journal Articles

The structure of the article is outlined in the Table of Contents. First, the article introduces a problem - the denial of an effective remedy for consumers overcharged by antitrust conspiracies, then it describes the legislative solution and identifies the unintended consequences that followed. Next, it proposes two alternative means to resolve the newly discovered issue and, finally, structures a proposed test for courts seeking to order the most efficient and effective remedy for consumers in these cases. The article explains that the Hart-Scott-Rodino Antitrust Improvements Act was adopted to fill a gap in antitrust remedies, which had made treble …

Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Journal Articles

In the post-Seminole Tribe world, the legal analysis in situations where states have chosen regulation over competition, supplanting the free functioning of markets, will diverge depending upon the identity of the defendant. If a state, its agencies, or departments are the named defendants, the broader Eleventh Amendment analysis controls and claims for damages against government entities must be dismissed on the ground of sovereign immunity. If the defendant is a private firm, the narrower State Action Doctrine, which has been crafted to balance true exercise of state sovereignty against the goal of competition, provides immunity for private defendants. As …

Balancing State Sovereignty And Competition: An Analysis Of The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Journal Articles

The great impact of the Seminole Tribe v. Florida decision will likely be felt in the range of federal causes of action that have exclusive remedies in federal court. Antitrust cases are among such causes of action. In seeking to avoid antitrust liability, defendants have invoked the protections of the antitrust state action doctrine, which immunizes only that anticompetitive activity imposed and supervised by states. This immunity bars suits against state and private actors alike. After Seminole Tribe, state defendants will escape all antitrust liability, whether or not the traditional requirements of the state action doctrine have been met. …

The Misunderstood Alliance Between Sports Fans, Players, And The Antitrust Laws, Stephen F. Ross

Journal Articles

The baseball strike and the ongoing hostilities between the players' association and owners have evoked criticism and frustration among fans and others. Although the players successfully defeated the owners' most recent attempts to reduce major league competition, the threat of future imposition of competitive restraints by the owners remains. In this article Professor Stephen F. Ross argues that blanket restraints on the market for players affirmatively inhibit on-the-field competition and consequently offend the Sherman Act.

The article begins with the proposition that monopsony - price-fixing behavior by buyers', rather than sellers' cartels - implicates the Sherman Act. Restraints on competition …

Reconsidering Flood V. Kuhn, Stephen F. Ross

Journal Articles

Within the academia, two very different groups of legal scholars have devoted a great deal of attention to Flood v. Kuhn. Those specializing in sports law have either attached Flood as a ridiculous decision that improperly distinguished between baseball and other professional sports, or have praised it for waging guerrilla warfare on the idea that Section 1 of the Sherman Act should apply to intra-league arrangements by owners of the professional sports teams. Those viewing Flood through the lens of statutory interpretation perceive the decision as adhering rigidly to the principle of stare decisis; this rigidity has been …

An Antitrust Analysis Of Sports League Contracts With Cable Networks, Stephen F. Ross

Journal Articles

This Article discusses the proper antitrust treatment of package sales to cable. Part I considers whether the antitrust laws apply at all to such sales; it concludes that section one of the Sherman Act does apply and that neither the Sports Broadcasting Act of 1961 not baseball's historic exemption from the antitrust laws prevents antitrust scrutiny of these contracts. Part II explains why cable package sales should be analyzed under a rule of reason test focused on the effect of a sale on fan viewership. Finally, Part III responds to several possible objections to the rule of reason standard proposed …

Reaganist Realism Comes To Detriot, Stephen F. Ross

Journal Articles

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

Monopoly Sports Leagues, Stephen F. Ross

Journal Articles

This Article argues that the government should break up both Major League Baseball and the NFL to provide for competing economic entities in each sport. Part I details the harm monopoly sports leagues cause in several different markets and explains why a competitive league structure can correct such harms. Part II discusses why regulatory solutions are poor substitutes for competition as a means of redressing these harms. Part III explains why neither baseball nor football is a "natural monopoly" and argues that no persuasive evidence suggests that rival leagues cannot exist in those sports. Part IV examines how the antitrust …