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Articles 1 - 6 of 6
Full-Text Articles in Law
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan
Faculty Scholarship
When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …
Antitrust And Intellectual Property: A Brief Introduction, Keith N. Hylton
Antitrust And Intellectual Property: A Brief Introduction, Keith N. Hylton
Faculty Scholarship
Intellectual property law and antitrust have been described as conflicting bodies of law, and the reason is easy to see. Antitrust law aims to protect consumers from the consequences of monopolization. Intellectual property law seeks to enhance incentives to innovate by granting monopolies in ideas or expressions of ideas. The purpose of this chapter is to explore the purported conflict between antitrust and intellectual property. The chapter is largely descriptive, and focuses on current or developing litigation rather than historical controversies. Many of the modern examples of conflict can be attributed to problems of classification.
The Proposed Separation Of Powers Restoration Act Goes Too Far, Jack M. Beermann
The Proposed Separation Of Powers Restoration Act Goes Too Far, Jack M. Beermann
Shorter Faculty Works
If passed, the Separation of Powers Restoration Act would require federal courts conducting judicial review of agency action to decide “de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules.” Although I have long been highly critical of Chevron, see, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should be Overruled, 42 Conn. L. Rev. 9 (2010), and also have misgivings about Auer deference, I fear that the proposed Act goes too far in completely eliminating deference to agency legal determinations.
Scalia And Antitrust, Keith N. Hylton
Scalia And Antitrust, Keith N. Hylton
Faculty Scholarship
Ask almost anyone in Massachusetts, or in any other predominantly liberal American state, what they think about Justice Antonin Scalia, and you are bound to hear comments, not a few of them derisory, about original intent as an approach to constitutional law. This was true long before his death on February 13, 2016, and is still true today. The theory of originalism, the notion that the Constitution should be interpreted in accordance with the intent of its framers, had become so closely associated with Scalia that the man had become the living embodiment of the theory.
Markovits On Defining Monopolization: A Comment, Keith N. Hylton
Markovits On Defining Monopolization: A Comment, Keith N. Hylton
Faculty Scholarship
In this comment I focus on Richard Markovits’s definition of monopolization in his new book, Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law (Springer 2014), and also his assertion that monopolization is distributively unjust. I agree wholeheartedly with his approach to defining monopolization, though I might alter a few details. However, I think the distributive justice effects of monopolization are ambiguous.
Roger Blair And Intellectual Property, Keith N. Hylton
Roger Blair And Intellectual Property, Keith N. Hylton
Faculty Scholarship
Although intellectual property is just a sidelight of Roger Blair's work, he has published at least seven articles and coauthored a book on this subject. Blair's work sets out robust economic models that address nearly all of the significant economic issues in intellectual property. Moreover, by using the property rules framework, he has offered a useful counterweight to the reward-to-loss theory that dominates the literature.