Law Commons^™

Welcoming Remarks And Statement Of The Issues, Fred H. Cate

Federal Communications Law Journal

The creation, manipulation, transmission, storage, and use of information constitute the United States' and the world's largest economic sector, affecting almost every aspect of business, education, government, and entertainment. The convener of From Conduit to Content: The Emergence of Information Policy and Law introduces The Annenberg Washington Program forum by noting the proliferation of information technologies and services, the diversity of industries and interests affected, and the number of government entities with jurisdiction, that contribute to both the complexity and the importance of information policy making.

From Conduit to Content: The Emergence of Information Policy and Law. The Annenberg Washington …

Panel Two: Information Policy Making, Allen S. Hammond, Bruce W. Mcconnell, Michael Nelson, Janice Obuchowski, Marc Rotenberg, Fred H. Cate

Federal Communications Law Journal

The second panel of From Conduit to Content: The Emergence of Information Policy and Law addresses the government's response to the policy making challenges presented by information. Panelists from the government and academia explore the question: "How has, and how should, the policy-making process respond to the diversity of issues, interests, and policymakers?" Participants include Fred H. Cate, Allen S. Hammond, Bruce W. McConnell, Michael Nelson, Janice Obuchowski, and Marc Rotenbergaddresses the government's response to the policy making challenges presented by information. Panelists from the government and academia explore the question: "How has, and how should, the policy-making process respond …

Panel One: Information Issues: Intellectual Property, Privacy, Integrity, Interoperability, And The Economics Of Information, Anne W. Branscomb, Brian Kahin, Ellen M. Kirsh, P. Michael Nugent, Fred H. Cate

Federal Communications Law Journal

The first panel of From Conduit to Content: The Emergence of Information Policy and Law examines the wide range of legal and regulatory issues presented by information, including intellectual property, privacy, free expression, liability for false or damaging expression, interoperability, international trade, antitrust, and government investment in and provision of information. Participants include Anne W. Branscomb, Fred H. Cate, Brian Kahin, Ellen M. Kirsh, and P. Michael Nugent.

From Conduit to Content: The Emergence of Information Policy and Law. The Annenberg Washington Program. Friday, March 3 1995, Washington, D.C.

The Last Mile: A Race For Local Telecommunications Competition Policy, Craig D. Dingwall

Federal Communications Law Journal

Although AT&T relinquished control of its local exchange carriers (LECs) in 1983, competition in the local telecommunications market has not flourished. Instead, Bell Operating Companies (BOCs) still retain the bulk of the market share for local exchange services, and most customers cannot access alternative local exchange service providers. In the long-distance market, however, increased competition has provided customers with better services at lower costs. In order to reproduce the notable consumer advantages found in the long-distance market, consumers must have consistent, convenient access to a multiplicity of alternative service providers.

The Author examines barriers surrounding the lack of competition in …

Antitrust Standing In Private Merger Cases: Reconciling Private Incentives And Public Enforcement Goals, Joseph F. Brodley

Michigan Law Review

This article examines a vital problem of private antitrust enforcement - the standing of private merger litigants - where the unresolved tension between public antitrust goals and the private interests of litigants threatens enforcement breakdown. Private merger enforcement is at risk not because courts have determined that such enforcement is undesirable, but because courts have failed to see the problem as an issue of systems design requiring effective integration of public and private enforcement. Instead they have focused on particular elements of antitrust standing - feared abuses by wrongly motivated plaintiffs - neglecting system-wide effects and jeopardizing the health of …

Competition Law And International Trade: The European Union And The Neo-Liberal Factor, David J. Gerber

All Faculty Scholarship

No abstract provided.

Antitrust, Michael Eric Ross

Mercer Law Review

The Eleventh Circuit handed down only two antitrust decisions in 1994. Both affirmed judgments for defendants under the "state action" doctrine.

Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

Scholarly Works

The past decade has witnessed an historic rejection of state control of markets in eastern Europe. Expansion of domestic antitrust immunity policy toward municipal businesses based upon federalism concerns, however, which occurred during the same period, has fostered autonomous governmental control of markets. The judicial application of the Parker doctrine to local government has tended to contradict the premise underlying several generations of U.S. foreign policy designed to support emerging competitive market economies outside the country. Academic analysis of the Parker doctrine during the 1980s was heated and creative. A number of commentators, with varying viewpoints, have addressed the bases …

Telecommunications In Transition: Unbundling, Reintegration, And Competition, David J. Teece

Michigan Telecommunications & Technology Law Review

The world economy is experiencing a technological revolution, fueled by rapid advances in microelectronics, optics, and computer science, that in the 1990s and beyond will dramatically change the way people everywhere communicate, learn, and access information and entertainment. This technological revolution has been underway for about a decade. The emergence of a fully-interactive communications network, sometimes referred to as the "Information Superhighway," is now upon us. This highway, made possible by fiber optics and the convergence of several different technologies, is capable of delivering a plethora of new interactive entertainment, informational, and instructional services that are powerful and user-friendly. The …

Unconstitutional Telco-Cable Cross-Ownership Ban: It Seemed Like A Good Idea At The Time, Arthur Bresnahan

Michigan Telecommunications & Technology Law Review

This article is a survey of the law regarding the federal government's ability to regulate a telephone company's provision of video programming to subscribers in its service area. Part I of the article is a history of the telco-cable cross-ownership ban. Part II is an analysis of the cases striking down the ban, exploring the rationale of these cases on a consolidated basis. Part III is a summary of the applicable standards by which to evaluate future attempts by Congress or the FCC to regulate telephone companies' provision of video programming.

Vertical Integration And Program Access In The Cable Television Industry, David Waterman

Federal Communications Law Journal

As a result of the 1992 Cable Television Act, the FCC set out regulations intended to encourage competition to established cable operators by insuring that alternative multichannel video programming distributors (MVPDs), such as MMDS, SMATV, DBS, and "overbuilt" cable systems have access to programming on the same terms and conditions as established cable operators. The FCC's specific regulations, however, apply only to program suppliers in which any cable operator has a 5 percent or greater equity interest. These vertically integrated programmers are prohibited from any price discrimination in any market (except for differences the programmer can justify on the basis …

"Speculative" Antitrust Damages, Roger D. Blair, William H. Page

Washington Law Review

The most important antitrust penalties are treble damage awards based on the individual harms that violations cause. For these penalties to function as an economically rational deterrent, there must be a practical mechanism for proving individual harm, and for distinguishing such harm from "speculation." In this article, the authors present an account of that mechanism. First, they argue that the law's measure of antitrust damages is based on a standard of net individual harm that is qualified in certain cases by a principle of net social harm. Net harm is measured by the difference between the plaintiff's actual condition (given …

The Ploys Of Summer: Antitrust, Industrial Distrust, And The Case Against A Salary Cap For Major League Baseball, Christopher D. Cameron, J. Michael Echevarría

Florida State University Law Review

No abstract provided.

Three Opinions, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Preventing Predatory Abuses In Litigation Between Business Competitors: Focusing On A Litigant's Reasons For Initiating The Litigation To Ensure A Balance Between The Constitutional Right To Petition And The Sherman Act's Guarantee Of Fair Competition In Business, Scott D. Helsel

William & Mary Law Review

No abstract provided.

Introduction. Competition And Trade Policy: Europe, Japan And The United States, John O. Haley

Washington International Law Journal

With the successful conclusion of the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade, the focus of international trade concern has shifted from elimination of formal, governmentally imposed trade barriers to complex, and often contradictory, interrelationships among national and regional competition and trade policies. The promise of future negotiations under the aegis of the new World Trade Organization on competition (antitrust) policy as a trade issue thus brings us full circle. The GATT was itself the product of extensive planning within the United States Department of State for the postwar international economy. An effective international competition …

Competition Law And International Trade: The European Union And The Neo-Liberal Factor, David J. Gerber

Washington International Law Journal

Ordoliberalism, a particular version of European Neo-Liberal thought, has played a central role in the relationship between competition law and trade policy with the European Union. The substantive component of this body of thought, which is based in Germany, emphasizes the importance of a transaction-based economy and economic freedom; the process component emphasizes the need for juridical processes in economic policy-making. Ordoliberalism has shaped European Union competition law and trade policy and their roles in European integration, and its weakening may cause major changes in that relationship.

Export Cartels And Voluntary Export Restraints Between Trade And Competition Policy, Ulrich Immenga

Washington International Law Journal

This article discusses the conflicts between trade regulation and competition policy. It begins with a survey of the effect of restrictive practices—particularly those like export cartels that are exempted from competition law regulation—and continues with a critique of national support and authorization for restrictive practices as well as protective state activities, including antidumping rules, rules against "unfair" trade practices, and voluntary export restraints. The article concludes with a summary of unilateral, bilateral, and multilateral approaches to a more effective international regime for competition policy. It also introduces the recommendation for a Draft International Antitrust Code, which was submitted to GATT.

An Antitrust Remedy For International Price Predation: Lessons From Zenith V. Matsushita, Harry First

Washington International Law Journal

The purpose of this article is to articulate a set of rules for an antitrust cause of action against international predatory pricing. The article develops these rules in the context of the antitrust and trade litigation brought in the United States and Japan against the Japanese televisions manufacturers between 1956 and 1986. The thesis of this article is that the litigation illustrates that antitrust enforcement should concentrate on exclusion from the home market rather than on low prices in the target market. The article also argues that antitrust should encompass a concern with the strategic use of market power to …

Regulations On Bid Rigging In Japan, The United States And Europe, Naoaki Okatani

Washington International Law Journal

This article provides a comparative perspective on bid rigging in Japan, the United States and Europe. It emphasizes the differences in both institutional structure as well as policy and business culture in the three jurisdictions, particularly in terms of antitrust and criminal law enforcement. It notes the greater tolerance of bid rigging in Japan in the case of construction contracts for public works.

Kodak And Aftermarket Tying Analysis: Some Comparative Thoughts, William R. Andersen

Washington International Law Journal

This article examines three recent cases—one from the U.S. Supreme Court, one from the European Court of Justice and one from the High Court of Osaka—dealing with the antitrust implications of aftermarket tying arrangements. Tying occurs when the manufacturer of a machine refuses to sell spare parts to independent repair and service companies. The antitrust implications of tying will be of growing importance in the future as manufactured equipment becomes ever more complex and dependent on specialized repair parts and service. After an introductory review of conventional tying doctrine, the paper compares the approaches of the three courts, finding them …

A Comparison Of U.S.-Japan Antitrust Law: Looking At The International Harmonization Of Competition Law, Hiroshi Iyori

Washington International Law Journal

This article focuses on the legislative history of the Japanese Antimonopoly Law and a comparison between the substantive provisions of the Japanese law and its U.S. origins. It begins with a historical overview of the fundamental differences between the economies of Japan and the U.S., as well as Japan through the postwar period and the contrasting contexts in which competition laws were enacted in each country. It offers a brief outline of the historical development of Japanese competition law, from the enactment of the Antimonopoly Law through amendments and defining judicial interpretations. The article then focuses on coverage, sanctions, and …

Foreign Firm Access To Japanese Distribution Systems: Trends In Japanese Antitrust Enforcement, Jiro Tamura

Washington International Law Journal

The Japanese substantive competition law is, in theory, very well equipped to prevent anticompetitive behavior that restricts competition. In reality, the JFTC has been weak in enforcing the law. The JFTC has been particularly weak in two areas, boycotts and non-price vertical restraints, making market entry difficult for foreign firms. In response to criticisms of weakness, the JFTC released the 1991 Guideline that states that boycotts may constitute an unreasonable restraint of trade and be subject to administrative surcharges and possible criminal sanctions. Despite the strengthening of the law against boycotts, no cases have been brought. Furthermore, the JFTC has …

Competition And Trade Policy: Antitrust Enforcement: Do Differences Matter?, John O. Haley

Washington International Law Journal

This article deals with the question of differences in competition policy enforcement regimes in Japan, Europe and the United States. In answer to the question "Do differences matter?", the author concludes that they matter less than conventional wisdom suggests at least in terms of "fairness" and effectiveness. The article challenges the widely held views that Japan's competition rules are ineffectively enforced and that U.S. antitrust enforcement, especially treble damage actions, have had an unfair impact on foreign firms. The article concludes with recommendations for greater cooperation between trade regulation and antitrust enforcement authority in the United States and among competition …

Trips: Adequate Protection, Inadequate Trade, Adequate Competition Policy, Hanns Ullrich

Washington International Law Journal

This article analyzes the relationship between trade and competition policy with respect to intellectual property, focusing particularly on the inclusion into the Uruguay Round of the Trade Related Aspects of Intellectual Property ("TRIPS"). The article sets forth the traditional framework of protection as established by the Paris Convention for the Protection of Industrial Property in 1883. The TRIPS agreement provides new rules and principles to manage emerging problems in the field of industrial property. The main focus of this article is to analyze the effect that TRIPS will have on harmonizing (but not unifying) the system of intellectual property protection.

Competition Law And The Agenda For The Wto: Forging The Links Of Competition And Trade, Eleanor M. Fox

Washington International Law Journal

The Uruguay Round of the General Agreement on Tariffs and Trade is complete, and the agenda for the next round is being formulated. It is widely expected that issues of competition, the environment, and possibly labor will be on the agenda for the next round of the GATT. This article examines why it is that the world trading agenda may be thus expanding. Specifically as to competition law, it examines the history of devising world competition rules, the wisdom of revisiting the enterprise of doing so, and alternative approaches to competition in the GATT agenda. The article concludes with a …

Considering Copyright Crimes, Roger J. Miner '56

Criminal Law

No abstract provided.

The Decision Of The National League Of Baseball Clubs To Deny The Purchase And Transfer Of A Franchise To A City Not Currently The Home Of A Major League Team Is Governed By Section One Of The Sherman Act, Joanne M. Judge

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The Fcc's Regulation Of The New Video Media : Backing And Filling On The Level Playing Field, Michael Botein

Books

No abstract provided.

Using Section 337 Of The Tariff Act Of 1930 To Block Materially Different Gray Market Goods In The Common Control Context: Are Reports Of Its Death Greatly Exaggerated?, Margo A. Bagley

Faculty Articles

This Comment examines the primary reasons for trademark owners within the common control exception to revisit section 337 when faced with materially different gray market goods. Part One discusses the issues in and history of the gray market goods controversy, and the common control exception. Part Two focuses on section 337: how it works, its use in gray market goods cases, and how it has changed as a result of amendments in the Omnibus Trade and Competitiveness Act of 1988 and in the Uruguay Round Agreements Act of 1994. Part Three traces the changes in the gray market landscape favorable …