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Full-Text Articles in Law
Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp
Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp
All Faculty Scholarship
The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …
How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande
How High Do Cartels Raise Prices? Implications For Optimal Cartel Fines, John M. Connor, Robert H. Lande
All Faculty Scholarship
This Article examines whether the current penalties in the United States Sentencing Guidelines are set at the appropriate levels to deter cartels optimally The authors analyze two data sets to determine how high on average cartels raise prices. The first consists of every published scholarly economic study of the effects of cartels on prices in individual cases. The second consists of every final verdict in a US. antitrust case in which a neutral finder of fact reported collusive overcharges. They report average overcharges of 49% and 31% for the two data sets, and median overcharges of 25% and 22%. They …
The Residency Match: Competitive Restraints In An Imperfect World, Kristin Madison
The Residency Match: Competitive Restraints In An Imperfect World, Kristin Madison
All Faculty Scholarship
Several years ago physicians filed a lawsuit alleging that “the match,” the more than fifty-year-old system by which medical students and other applicants are assigned to medical residency programs, violates Section 1 of the Sherman Act. Last year, without hearings or substantive debate on the issue, Congress found that the match was “highly efficient” and “pro-competitive” and granted a retroactive antitrust exemption for its operation. These seemingly incompatible views invite further analysis of the merits of the residency match from the perspective of public policy. This article considers the arguments of match advocates and critics, evaluating both theoretical models and …
Federalism And Antitrust Reform, Herbert J. Hovenkamp
Federalism And Antitrust Reform, Herbert J. Hovenkamp
All Faculty Scholarship
Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action …
Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert
Should Antitrust Education Be Mandatory (For Law School Administrators)?, Royce De R. Barondes, Thomas A. Lambert
Faculty Publications
The Executive Committee of the Association of American Law Schools has adopted a Statement of Good Practices that purports to limit the times when law schools may make offers to hire faculty members at other schools. Schools are generally not to make offers for indefinite appointments to professors on other faculties after March 1, subject to extension for two months with the consent of the incumbent's dean. They also are not to make offers contemplating resignation from a current faculty position more than two weeks following those deadlines. Proceeding on the assumption that the AALS policy, whose express terms are …
Discounts And Exclusions, Herbert J. Hovenkamp
Discounts And Exclusions, Herbert J. Hovenkamp
All Faculty Scholarship
The discounting practices of dominant firms has emerged as one of the most problematic areas of private antitrust enforcement against single-firm conduct. The most difficult discount practices to assess are bundled, or multi-product discounts in situations where no significant rival produces every product that is included in the bundle. A debate has emerged over whether such discounts are properly assessed under a legal test that analogizes them to predatory pricing or to tying. Defendants typically prefer predatory pricing analogies, requiring a showing that the price of the assembled bundle was below a relevant measure of cost, such as marginal cost …
Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth
Unilateral Effects: The Enforcement Act Under The Old Ec Merger Regulation, Claus-Dieter Ehlermann, Axel Gutermuth
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The reform of the EC Merger Regulation was preceded by an animated debate about whether the traditional "dominance" test allowed the Commission to challenge mergers that did not lead to single firm or collective dominance in the traditional sense, but nevertheless may have reduced competition to the detriment of consumers. The authors submit that the dominance test failed to reach such situations of "unilateral" or "non-coordinated" effects. The old Merger Regulation therefore suffered from a potential "enforcement gap" that was closed only by the legislative change to the "significant impediment of effective competition" test. National jurisdictions still using variants of …
Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley
Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley
All Faculty Scholarship
Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that …
Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge
Antitrust And Competition Law Update: Agencies Send A Strong Message On Hsr Filing, William J. Kolasky, Robert Bell, James W. Lowe, Leon Greenfield, A. Douglas Melamed, Veronica Kayne, Ali Stoeppelwerth, Janet Ridge
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The Federal Trade Commission and Department of Justice’s Antitrust Division last week each announced enforcement actions against and settlements with parties that alleged failed to make required notifications of transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. Each case resulted in a significant fine (one of $800,000 and one of $1 million) and signaled the agencies’ intent to pursue vigorously parties that fail -- intentionally or negligently -- to meet their obligations under the HSR Act. Moreover, both cases address the scope of the HSR Act’s “investment only” exemption and show that the agencies construe it strictly …
Trading And Distribution In China, Lester Ross, Kenneth Zhou
Trading And Distribution In China, Lester Ross, Kenneth Zhou
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
Trading and distribution rights were major issues in the negotiation of China’s entry to the World Trade Organisation, a process which took 14 years before concluding in late 2001. Trading rights, i.e. the right to import and export goods, had historically been mainly restricted to a small number of largely sector-specific state-owned monopoly trading enterprises. Trading rights were modestly liberalised in the years preceding China’s entry, but generally remained tightly restricted.
“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker
“Start-Up Aid” For Low Cost Carriers– A Policy Perspective, Sven Völcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On 7 February 2005, the European Commission published draft “Community guidelines on the financing of airports and start-up aid to airlines departing from regional airports” for consultation. This article focuses on the Draft Guidelines’ statements on “start-up aid,” which seek to integrate the Commission’s statements in last year’s Charleroi decision into a consistent state aid policy framework. It is submitted here that such an attempt is highly problematic, given the absence of a coherent and objective justification for start-up aid in its proposed form. The Commission should not depart from its long-standing hostility to operating aid for reasons of perceived …
Oracle In Brussels, Christian Duvernoy, Sven Völcker
Oracle In Brussels, Christian Duvernoy, Sven Völcker
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
It was hands across the water when both a U.S. district court and the European Commission cleared the $10.3 billion merger of Oracle and PeopleSoft. The Department of Justice, which had opposed the deal, had decided not to appeal its defeat in the San Francisco court, and it is thought that the Commission took this as a sign that U.S. regulators would not take it amiss if their European counterparts also let the merger proceed. In any event, there was none of the resentment and outrage that bubbled over not so long ago when U.S. antitrust authorities approved the GE/Honeywell …
Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Schering-Plough Corp. V. Federal Trade Commission: Eleventh Circuit Rejects The Ftc’S Position On “Reverse Payments” In Patent Suit Settlements, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
In recent years, the Federal Trade Commission (“FTC” or the “Commission”) has investigated several settlement agreements between pioneer and generic drug manufacturers involving “reverse payments.” In the view of the FTC, reverse payments are cash that a pioneer drug manufacturer pays to a generic manufacturer who has challenged the patent(s) protecting the pioneer drug, in exchange for the generic manufacturer’s agreement to delay market entry. Such payments sometimes occur in the settlement of patent infringement actions. The Commission has been extremely skeptical of reverse payments, viewing them as objective indicia of intent to illegally share monopoly profits that the delayed …
Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta
Antitrust Enforcement: Four New Investigations Opened By The Agcm In The First Months Of 2005, Antonio Capobianco, Stefano Fratta
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The first three months of this year have witnessed extensive enforcement activity by Italy’s Autorità Garante per la Concorrenza ed il Mercato (“AGCM”). In the closing 90 days of the chairmanship of Professor Tesauro, former Advocate General at the European Court of Justice, the AGCM initiated a number of investigations for infringement of EC competition rules in various key markets: natural gas, telecommunication services, pharmaceuticals and postal services. The cases reported below are of particular interest since they are the first examples of enforcement of EC competition rules by the AGCM in the new “modernised” system of European enforcement.
Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro
Spanish Competition Tribunal Rejects Price Squeeze Allegations In Relation To Mobile Vpn Services, Axel Desmedt, Pablo Charro
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
On December 20 and 22, the Spanish Competition Tribunal (Tribunal de Defensa de la Competencia, or TDC) dismissed three actions that were brought by Uni2 and WorldCom (both alternative fixed operators) against the three Spanish mobile operators (Telefonica Moviles, Vodafone, and Amena) for abuse of a dominant position. The complaints alleged that the three mobile operators applied a price squeeze on the corporate market segment and discriminatory pricing practices as regards mobile termination services. In particular, according to Uni2 and WorldCom, during the period of 2000-2002, the three Spanish mobile operators offered retail services to corporate clients (including pricing terms …
Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge
Antitrust And Competition Law Update, Ulrich Quack, James Burling, Claus-Dieter Ehlermann, John Ratliff, Suyong Kim, Douglas Melamed, William Kolasky, Janet Durholz Ridge
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
The US Federal Trade Commission(FTC) has announced sweeping changes to the Hart-Scott-Rodino (HSR) Act premerger reporting rules, including those governing transactions involving partnerships and LLCs, that will come into effect on April 6, 2005. See 70 Fed. Reg. 11526 (March 8, 2005). In addition to reconciling the HSR analysis of LLCs, partnerships and other unincorporated entities with that of corporations, the new rules will make a number of technical adjustments and codify some informal FTC interpretations. The changes will make some transactions reportable that have historically be exempt; this effect will be offset to some extent by new exemptions from …
The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi
Faculty Publications
The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …
Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn
Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker
Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes
Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes
Faculty Publications
The purpose of this essay is merely to examine the pertinent antitrust issues. The essay proceeds on the assumption that the AALS policy, whose terms are precatory, speaks to what is in fact an agreement among law schools. As noted below, the policy itself contemplates that law school deans will seek waivers, in individual cases, extending the time periods for up to two months. Were the policy to be litigated, law schools might dispute the existence of an agreement. We believe, though, that the nature of the policy strongly suggests that it represents an agreement among law schools and that …
Architectural Censorship And The Fcc, Christopher S. Yoo
Architectural Censorship And The Fcc, Christopher S. Yoo
All Faculty Scholarship
Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …
Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison
Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison
Articles
This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of …