Law Commons^™

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

Faculty Articles and Papers

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 …

Muzzling Antitrust: Information Products, Innovation And Free Speech, Hillary Greene

Faculty Articles and Papers

How well does the American legal system balance the diverse values society espouses? Courts must often navigate values that are not consistent, commensurate, or subject to ordinal ranking. This article examines the confluence of incommensurate values within the important context of antitrust challenges to information product redesigns (e.g., Google, Nielsen). The information economy has given rise to the emergence of powerful firms in the business of information products. Some of these firms have had product redesigns challenged as anticompetitive. This article examines two defenses to these challenges. First, the products constitute protected speech and should be immunized entirely from antitrust …

Merging Innovation Into Antitrust Agency Enforcement Of The Clayton Act, Hillary Greene

Faculty Articles and Papers

The treatment of innovation within the merger context by U.S. Antitrust Agencies continues to evolve, with regard to both general statements of enforcement policy and specific enforcement decisions. The respective merger guidelines issued by the Department of Justice and the Federal Trade Commission did not consider potential impacts on innovation or research and development until 1982, and then only in passing. By contrast, their joint 2010 Horizontal Merger Guidelines devote an entire section to innovation issues. This Essay examines both the frequency and manner with which the Antitrust Agencies invoke innovation-based concerns within their respective merger challenges from 2004-2014. It …

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

Faculty Articles and Papers

Herbert Hovenkamp has had a tremendous impact in antitrust scholarship. With over 4000 citations in the WestlawJLR database (most of which are for his antitrust scholarship), Hovenkamp is one of the most cited scholars in legal academia and has been recognized by the legal academy and the bar for his contribution to antitrust.' Hovenkamp's total citations are in part a function of his academic outputs; with 12 books (including monographs, edited books, and case books), plus the two-volume treatise on IP and Antitrust and the 2 i-volume Antitrust Law: An Analysis of Antitrust Principles and Their Application ("Treatise"), Hovenkamp could …

The Influences Of Strategic Management On Antitrust Discourse, Hillary Greene, Dennis A. Yao

Faculty Articles and Papers

This article examines how antitrust law and policy can benefit from ideas developed in the academic strategy field. Because accurate assessment and prediction of the effects of firm conduct depend in part on understanding individual firm capabilities, knowledge from the strategy field and other business fields complements the contributions from industrial organization economics (10). These business fields also offer theoretical and empirical challenges to the 10 paradigm, which dominates antitrust analysis. The article begins with a comparison between strategy and 10 and then illustrates how the strategy field can contribute to antitrust merger analysis. The article then assesses the influence …

The First Liability Insurance Cartel In America, 1896-1906, Sachin S. Pandya

Faculty Articles and Papers

This article studies the rise and fall of the first liability insurance cartel in the United States. In 1886, insurance companies in America began selling liability insurance for personal injury accidents, primarily to cover business tort liability for employee accidents at work and non-employee injuries occasioned by their business operations. In 1896, the leading liability insurers agreed to fix premium rates and share information on policyholder losses. In 1906, this cartel fell apart. Although largely forgotten until now, the rise and fall of this cartel confirms the expectations of both cartel theory and past studies of insurance cartels, largely in …

Non-Per Se Treatment Of Buyer Price-Fixing In Intellectual Property Settings, Hillary Greene

Faculty Articles and Papers

The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens. This article challenges the wholesale adoption of either proposition within the context of buyer price-fixing in intellectual property markets. More specifically, it examines antitrust law’s role in protecting patent holders’ rents through its condemnation of otherwise ostensibly efficient buyer price fixing. Using basic economic analysis, this article refines the legal standards applicable at this point of intersection between antitrust and patent law. In particular, the author recommends the limited abandonment of …

Patent Pooling Behind The Veil Of Uncertainty: Antitrust, Competition Policy, And The Vaccine Industry, Hillary Greene

Faculty Articles and Papers

No abstract provided.

Antitrust Censorship Of Economic Protest, Hillary Greene

Faculty Articles and Papers

Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the “fairness” of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and …

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

Faculty Articles and Papers

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 …

Articulating Trade Offs: The Political Economy Of State Action Immunity, Hillary Greene

Faculty Articles and Papers

Antitrust uses economic analysis to assess various trade-offs involving efficiency. Even assuming that a competition matter implicates purely economic matters it can be exceedingly difficult to determine and measure all the relevant factors, assign them proper weights, decide on the appropriate time frames, assess the pertinent interactions, and conduct the trade-off calculations. Not surprisingly, different members of the antitrust community often take vastly differing positions regarding the economic consequences of a particular antitrust doctrine as well as the significance of those consequences. When potentially anti-competitive conduct occurs in the context of state regulation, the challenge to achieving a sensible accommodation …

Agency Character And Character Of Agency Guidelines: An Historical And Institutional Perspective, Hillary Greene

Faculty Articles and Papers

Though antitrust guidelines have become commonplace, their approach was novel when first introduced. In a 1964 front-page article entitled, Industries Will Get Merger Guidelines, The New York Times observed, 'An entirely new approach to the enforcement of the antitrust laws is about to be attempted by the Federal Trade Commission.' Similarly, the American Bar Association's 1968 Antitrust Developments treatise described these first antitrust agency guidelines as a new method to advise businessmen about how the FTC would gauge the competitiveness of mergers. In the nearly forty years since the introduction of the first merger guidelines, the federal antitrust agencies have …

Competition Perspectives On Patent Law Substance And Procedure: An Overview Of The Ftc/Doj Hearings And The Ftc Report, Hillary Greene

Faculty Articles and Papers

No abstract provided.

Afterword: The Role Of The Competition Community In The Patent Law Discourse, Hillary Greene

Faculty Articles and Papers

The Federal Circuit is the most visible point of the intersection between competition and patent law. When a single case contains both competition and patent issues, precedents of that court, including those pertaining to governing legal burdens or presumptions, will be critical. It is worth considering whether and how actual or assumed consumer welfare trade-offs are reflected in those decisions. Additionally, the basic decision to confer patents, and the attendant choices regarding their breadth, scope, and other aspects, also reflect social value judgments that directly implicate competition. The competition community can help both to focus attention upon and to illuminate …

Antitrust Guideposts For B2b Electronic Marketplaces, Hillary Greene, Gail F. Levine

Faculty Articles and Papers

No abstract provided.

The Economics Of The Insurance Antitrust Suits: Toward An Exclusionary Theory, Peter Siegelman, Ian Ayres

Faculty Articles and Papers

On March 22, 1988, the Attorneys General of eight states filed antitrust actions in state and federal courts' alleging that major insurance and reinsurance companies colluded to boycott specific types of insurance coverage in violation of section 1 of the Sherman Act. The suits suggest that this collusion was responsible for the unprecedented increase in premiums and concomitant erosion of coverage that has come to be known as "the insurance crisis."' The lawsuits have provoked fierce denials by insurance industry participants, including assertions that the suits, which came in an election year, were politically motivated.' The litigation is certain to …