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Articles 1 - 30 of 80
Full-Text Articles in Law
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
UF Law Faculty Publications
This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …
Bundled Discounts, Loyalty Discounts And Antitrust Policy, Roger D. Blair, Thomas Knight
Bundled Discounts, Loyalty Discounts And Antitrust Policy, Roger D. Blair, Thomas Knight
UF Law Faculty Publications
In this paper, we explore the competitive significance of both bundled and loyalty discounts. The paper proceeds as follows. In Section II, we examine the antitrust treatment of both bundled discounts and loyalty discounts in the United States. In Section III, we examine bundled discounts and discuss their competitive significance. In Section IV, we examine loyalty discounts as well as their competitive significance. In Section V, we suggest that the courts evaluate bundled discounts and loyalty discounts under the Rule of Reason. In Section VI, we close with some concluding remarks and policy recommendations.
Direct Evidence Of A Sherman Act Agreement, William H. Page
Direct Evidence Of A Sherman Act Agreement, William H. Page
UF Law Faculty Publications
In cases that allege price fixing or other per se violations of Section 1 of the Sherman Act, courts usually begin their opinions by saying there is no direct evidence of agreement—evidence like a “recorded phone call” that is “explicit and requires no inferences to establish” that the necessary direct communications occurred. Only at that point do the courts turn to the sufficiency of the inferences of agreement from circumstantial evidence. Courts highlight the absence of direct evidence of agreement in this way because of its special role on motions to dismiss or for summary judgment, when courts do not …
After Forty Years Of Antitrust Revision And Apple V. Pepper, What Now Illinois Brick?, Jeffrey L. Harrison
After Forty Years Of Antitrust Revision And Apple V. Pepper, What Now Illinois Brick?, Jeffrey L. Harrison
UF Law Faculty Publications
Nineteen seventy-seven was a paradigm-shifting year in antitrust law. Decisions by the Supreme Court greatly limited the type of parties who could successfully bring antitrust actions and what types of activities would violate the antitrust laws. First, in January of that year, the Court, in Brunswick v. Pueblo Bowl-O-Mat, ruled that to mount a case the plaintiff had to have suffered an antitrust injury. In other words, even if the antitrust laws were violated, the party raising the issue had to have suffered the type of harm the laws were designed to avoid. Then in a fourteen day span the …
The Rise And (Potential) Fall Of U.S. Cartel Enforcement, Vivek Ghosal, D. Daniel Sokol
The Rise And (Potential) Fall Of U.S. Cartel Enforcement, Vivek Ghosal, D. Daniel Sokol
UF Law Faculty Publications
Government enforcement against collusion, now viewed by the Supreme Court as the “supreme evil” in antitrust, has gone through various phases of enforcement in the United States. There have been periods in which cartels have been able to collude more or less effectively given various institutional tools at the disposal of the government. By analyzing enforcement and prosecutions data over a long time horizon, 1969–2016, this Article examines the attributes of cartel enforcement over time and the changing use of tools to assist with detection and punishment. We provide a comprehensive description of critical cartel enforcement events and institutional developments …
Analyzing Vertical Mergers: Accounting For The Unilateral Effects Tradeoff And Thinking Holistically About Efficiencies, Roger D. Blair, Christine Wilson, D. Daniel Sokol, Keith Klovers, Jeremy Sandford
Analyzing Vertical Mergers: Accounting For The Unilateral Effects Tradeoff And Thinking Holistically About Efficiencies, Roger D. Blair, Christine Wilson, D. Daniel Sokol, Keith Klovers, Jeremy Sandford
UF Law Faculty Publications
With the adoption of the 2020 Vertical Merger Guidelines, the U.S. antitrust agencies have updated their guidance on vertical mergers for the Twenty-First Century. Although economists have long recognized the procompetitive benefits most vertical mergers generate, the law has not always followed suit, and has sometimes condemned vertical mergers for making the merged firm more efficient. In this article, we attempt to catalogue the extensive list of efficiencies that vertical mergers can generate, trace the often halting efforts to incorporate these insights into the law, and propose a framework that courts and agencies can use to assess the likely competitive …
The Ncaa’S Transfer Rules: An Antitrust Analysis, Roger D. Blair, Wenche Wang
The Ncaa’S Transfer Rules: An Antitrust Analysis, Roger D. Blair, Wenche Wang
UF Law Faculty Publications
In Deppe v. National Collegiate Athletic Association, the Seventh Circuit accepted the NCAA’s argument that its transfer rules are presumptively procompetitive. It also approved the NCAA’s no-poaching agreement. This Article analyzes these NCAA-imposed restraints and finds them inconsistent with current antitrust policy.
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
UF Law Faculty Publications
Tim Wu’s most recent book, The Curse of Bigness: Antitrust in the Gilded Age, is an attempt to reframe contemporary antitrust debates by returning antitrust to its more populist roots. Given the global implications of his ideas and policy proposals (including breakup of tech platforms) for many of the large corporations that he takes on, The Curse of Bigness offers profound insights for how society and business should be organized. The first part of this Review summarizes Wu’s major claims. It then highlights some of his critiques as to “bigness,” the multiple goals of antitrust, and the missed opportunities as …
Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang
Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang
UF Law Faculty Publications
For nearly a century, Major League Baseball (MLB) has enjoyed antitrust immunity. No other sports league or organization is similarly exempt. Shielded by precedent from antitrust prosecution, MLB clubs are free to exploit both monopolistic and monopsonistic power. In this paper, we call for a repeal of MLB’s antitrust exemption. In doing so, we examine some recent antitrust challenges to MLB conduct, the current interest of the Department of Justice and the Federal Trade Commission in labor market issues, the welfare consequences of the exemption, and a policy recommendation for legislative action.
A Knowledge Theory Of Tacit Agreement, Wentong Zheng
A Knowledge Theory Of Tacit Agreement, Wentong Zheng
UF Law Faculty Publications
A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another's conspiratory intent. This approach to tacit agreement is more …
Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka
Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka
UF Law Faculty Publications
The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen 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 another (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 …
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
UF Law Faculty Publications
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 …
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
UF Law Faculty Publications
In Ohio v. American Express Co., the United States Supreme Court had its first knowing encounter with what it incorrectly viewed as a two-sided platform in the context of American Express’ Non Disclosure Provisions (NDP). Under these provisions merchants accepting the American Express card for payment are not permitted to inform consumers that other cards charge merchants less for their use and that this could be reflected in the final price paid. The opinion includes poor reasoning, a lack of attention to precedent, and bad news for those who thought antitrust law was due for a revival. Yet, and perhaps …
Untangling The Market And The State, Wentong Zheng
Untangling The Market And The State, Wentong Zheng
UF Law Faculty Publications
The government plays increasingly active and diversified roles in the modern economy. How to draw the boundary between the market and the state has emerged as a contentious issue in various areas of law, including constitutional law, antitrust, and international trade. This Article surveys and critiques the law’s current approaches to the market-versus-state divide, embodied in four tests based on ownership, control, function, and role, respectively. This Article proposes an alternative market-versus-state test based on the nature of the power being exercised in the challenged action. This power-based test not only better distinguishes between the market and the state, but …
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
UF Law Faculty Publications
Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …
Understanding Online Markets And Antitrust Analysis, D. Daniel Sokol, Jingyuan Ma
Understanding Online Markets And Antitrust Analysis, D. Daniel Sokol, Jingyuan Ma
UF Law Faculty Publications
Antitrust analysis of online markets is a hot topic around the world. In a number of jurisdictions, online markets already have been subject to antitrust review in merger or conduct cases. In other jurisdictions, these issues are in a nascent stage of policy. A number of lessons can be learned from the cases to date involving online markets with regard to optimal antitrust policy. What these cases tend to share are some basic features as to how online markets work. Some jurisdictions understand the particular dynamics of multi-sided online markets. Other competition authorities sometimes may misidentify these markets. This essay …
Other Markets, Other Costs: Modernizing Antitrust, Jeffrey L. Harrison
Other Markets, Other Costs: Modernizing Antitrust, Jeffrey L. Harrison
UF Law Faculty Publications
Today’s antitrust law is characterized by stagnation and indeterminacy. The failure is so thorough that it is not clear that U.S. competition law actually leads to any outcomes that are defendable except at the most superficial level. Moreover, when enforcement does result in a desirable outcome, it not clear that it is the best outcome. The principal reason for this state of affairs is that antitrust scholars and courts cling to misguided goals and theories that have not evolved despite an avalanche of information now available that can modernize the discipline.
This Article has two main sections that necessarily overlap. …
Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol
Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol
UF Law Faculty Publications
Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the …
A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison
A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison
UF Law Faculty Publications
This Article demonstrates the relationship between socio-economics and antitrust law. It uses socio-economics to both deconstruct the current economic foundation of antitrust policy and to suggest ways to improve that policy. There are four steps in this presentation. Part II examines the core elements of the economic approach to antitrust and its shortcomings, if any. For those even moderately versed in economics, it will note that the analysis begins at the most basic level. Obviously, antitrust is designed to make markets more competitive. But that goal is merely a means to the end of greater consumer surplus and allocative efficiency. …
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
UF Law Faculty Publications
The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …
Reregulation And The Regulatory Timeline, Peter Molk, Arden Rowell
Reregulation And The Regulatory Timeline, Peter Molk, Arden Rowell
UF Law Faculty Publications
Regulation is often casually conceived of as functioning like a binary on/off switch: as if an area, issue, or industry is either regulated or not. While this binary model of regulation can be useful, it also decontextualizes regulatory decisions from their position in time, and thus obscures important ways in which regulators are constrained and incentivized by past and future decisions. As an alternative, we present a timeline approach to regulation. The timeline approach is particularly helpful in illustrating the ways that earlier regulatory decisions create vestigial effects for later related decisions, and for highlighting the informational advantage that later …
Quality-Enhancing Merger Efficiencies, Roger D. Blair, D. Daniel Sokol
Quality-Enhancing Merger Efficiencies, Roger D. Blair, D. Daniel Sokol
UF Law Faculty Publications
The appropriate role of merger efficiencies remains unresolved in US antitrust law and policy. The Patient Protection and Affordable Care Act (ACA) has led to a significant shift in health care delivery. The ACA promises that increased integration and a shift from quantity of performance through increased competition will create a system in which quality will go up and prices will go down. Increasingly, due to the economic trends that respond to the ACA, including considerable consolidation both horizontally and vertically, it is imperative that the antitrust agencies provide an economically sound and administrable legal approach to efficiency enhancing mergers. …
Licensing Health Care Professionals, State Action And Antitrust Policy, Roger D. Blair, Christine Piette Durrance
Licensing Health Care Professionals, State Action And Antitrust Policy, Roger D. Blair, Christine Piette Durrance
UF Law Faculty Publications
In this Essay, we raise some economic concerns about the wisdom of conferring antitrust immunity on professional licensing boards, which are often comprised of members of the profession and therefore apt to be motivated by self-interest rather than the public interest. In Part II, we examine the political economy of special interest legislation, which suggests that little public good results from replacing competitive market forces with self-regulation. In Part III, we employ a basic economic model to generate predictions of the economic effects of professional licensing. Part IV provides a survey of the empirical research in this area, which confirms …
Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol
Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol
UF Law Faculty Publications
This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …
The Revolving Door, Wentong Zheng
The Revolving Door, Wentong Zheng
UF Law Faculty Publications
The revolving door between the government and the private sector has long been presumed to lead to the capture of regulators by industry interests. A growing body of empirical literature, however, either finds no conclusive evidence of a capture effect or finds evidence of an opposite effect that the revolving door indeed results in more aggressive, not less aggressive, regulatory actions. To account for these incongruous results, scholars have formulated and tested a new “human-capital” theory positing that revolving-door regulators have incentives to be more aggressive toward the regulated industry as a way of signaling their qualifications to prospective industry …
Tensions Between Antitrust And Industrial Policy, D. Daniel Sokol
Tensions Between Antitrust And Industrial Policy, D. Daniel Sokol
UF Law Faculty Publications
Sound antitrust law and policy is in tension with industrial policy. Antitrust promotes consumer welfare whereas industrial policy promotes government intervention for privileged groups or industries. Unfortunately, industrial policy seems to be alive and well both within antitrust law and policy and within a broader competition policy worldwide. This Article identifies how industrial policy impacts both antitrust and competition policy. It provides examples from the United States, Europe and China of how industrial policy has been used in antitrust. However, this Article also makes a broader claim that the overt or subtle use of industrial policy in antitrust and a …
Judging Monopolistic Pricing: F/Rand And Antitrust Injury, William H. Page
Judging Monopolistic Pricing: F/Rand And Antitrust Injury, William H. Page
UF Law Faculty Publications
In a 2013 opinion in Microsoft v. Motorola, Judge James Robart calculated “reasonable and nondiscriminatory” or RAND royalties that Motorola could lawfully charge Microsoft for licenses to use Motorola patents that were essential to two industry standards. Although the case involved only a claim for breach of contract, Judge Robart’s opinion regulated monopoly pricing, a task courts try to avoid in other contexts, claiming institutional incapacity. In this instance, however, Judge Robart identified standards that he believed adequately guided him in the task. He recognized that the economic purposes of the RAND commitment were to prevent owners of standards-essential patents …
The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison
The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison
UF Law Faculty Publications
To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …
“Antitrust's Least Glorious Hour”: The Robinson-Patman Act, Roger D. Blair, Christina Depasquale
“Antitrust's Least Glorious Hour”: The Robinson-Patman Act, Roger D. Blair, Christina Depasquale
UF Law Faculty Publications
In The Antitrust Paradox, Robert Bork explored many of antitrust’s misadventures. Specifically, Bork severely criticized the Robinson-Patman Act, which he characterized as “antitrust’s least glorious hour.” In this paper, we explore Bork’s criticism of the Robinson-Patman Act along with those of other legal scholars and economists. We analyze the central prohibitions of the act and explore their competitive implications. We also show that the act’s unfortunate prohibitions have been muted by the antitrust agencies’ benign neglect and three recent Supreme Court decisions.
The Transformation Of Vertical Restraints: Per Se Illegality, The Rule Of Reason, And Per Se Legality, D. Daniel Sokol
The Transformation Of Vertical Restraints: Per Se Illegality, The Rule Of Reason, And Per Se Legality, D. Daniel Sokol
UF Law Faculty Publications
Robert Bork probably had the single most lasting influence on antitrust law and policy of anyone in the past 50 years. To read the 1978 Antitrust Paradox today, one is struck by how closely contemporary case law tracks Bork's policy prescriptions. The speed at which the transformation in law and policy occurred in antitrust is perhaps unprecedented across any area of common law. In the 1970s, antitrust jurisprudence and enforcement policies were in tension with industrial organization economics. Bork created a unified goal for antitrust based on a “consumer welfare prescription” to shape the development of the case law. The …