Law Commons^™

Assorted Anti-Leegin Canards: Why Resistance Is Misguided And Futile, Alan J. Meese

Faculty Publications

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Supreme Court reversed Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), which had banned minimum resale price maintenance (“minimum RPM”) as unlawful per se. For many, Leegin was a straightforward exercise of the Court’s long-recognized authority, implied by the Sherman Act’s rule of reason, to adjust antitrust doctrine in light of new economic learning. In particular, Leegin invoked the teachings of transaction cost economics (“TCE”), which holds that many non-standard agreements, including minimum RPM, are voluntary mechanisms …

Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese

Faculty Publications

This Article critiques the role that the partial equilibrium trade-off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both …

The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese

Faculty Publications

Transaction cost economics ("TCE") has radically altered industrial organization's explanation for so-called "non-standard contracts, "including "exclusionary" agreements that exclude rivals from access to inputs or customers. According to TCE, such integration usually reduces transaction costs without producing anticompetitive harm. TCE has accordingly exercised growing influence over antitrust doctrine, with courts invoking TCE's teachings to justify revision of some doctrines once hostile to such contracts. Still, old habits die hard, even for courts of increasing economic sophistication. This Article critiques one such habit, namely, courts'continuing claim that firms use market or monopoly power to impose exclusionary contracts on unwilling trading partners. …

Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese

Faculty Publications

The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …

Financial Hospitals: Defending The Fed’S Role As Market Maker Of Last Resort, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Antitrust Law And Economic Theory: Finding A Balance, Edward D. Cavanagh

Faculty Publications

Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided guidance with respect to antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate, and less predictable.

This Article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases, but …

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate …