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2006

Antitrust

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Articles 1 - 30 of 67

Full-Text Articles in Law

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides Oct 2006

Hit And Miss: Leverage, Sacrifice, And Refusal To Deal In The Supreme Court Decision In Trinko, Nicholas Economides

ExpressO

Under the rules of the Telecommunications Act of 1996, incumbent local exchange carriers, including Verizon, were obligated to lease parts of their local telecommunications network to any firm at “cost plus a reasonable profit” prices which could combine them at will, add retailing services and sell local telecommunication service as a rival to the incumbent. AT&T, an entrant in local telecommunications, leased parts of Verizon’s network. Trinko, a local telecommunications services customer of AT&T, sued Verizon alleging various anti-competitive actions of Verizon against AT&T, including that Verizon raised the costs of AT&T, its downstream retail ...


A Neo-Chicago Perspective On The Law Of Product Tying: Exposing The Last Sanctuary Of The Harvard School, Alan J. Devlin Oct 2006

A Neo-Chicago Perspective On The Law Of Product Tying: Exposing The Last Sanctuary Of The Harvard School, Alan J. Devlin

ExpressO

No abstract provided.


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Price Discrimination With Contract Terms: The Lost Volume Problem, Barry E. Adler, Alan Schwartz Oct 2006

Price Discrimination With Contract Terms: The Lost Volume Problem, Barry E. Adler, Alan Schwartz

ExpressO

In a common commercial pattern, the seller of a standard product contracts with one buyer and then sells to another at the contract price after the initial buyer breaches. Sellers argue, and courts largely agree, that the seller could have served the contract buyer as well as the later buyer; hence, the seller is entitled to retain a down payment to the extent of, or sue to recover, the profit – price less cost – that it would have realized on the initial sale had that sale been completed. Some courts and many scholars disagree, arguing that resale of the contract product ...


Antitrust And Competition Law Update: U.S. V. Visa: Government Wins Major Rule Of Reason Case, William Kolasky, Robert Bell, Lee Greenfield, Veronica Kayne, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth Oct 2006

Antitrust And Competition Law Update: U.S. V. Visa: Government Wins Major Rule Of Reason Case, William Kolasky, Robert Bell, Lee Greenfield, Veronica Kayne, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On September 17, 2003, the Second Circuit issued an important decision in U.S. v. Visa U.S.A., Inc., 2003 WL 22138519 (2d Cir. Sept. 17, 2003). The court affirmed a district court ruling invalidating Visa and Mastercard rules that prohibit member banks from issuing American Express or Discover.1 The district court had found that these ìexclusionary rulesî substantially harmed competition and failed scrutiny under a rule of reason analysis. Visa is noteworthy both because it is a (relatively rare) government win in a major rule of reason case ó with the Second Circuit affirming the trial courtís ...


Aerospace And Antitrust: How The European Union Supports Its Interests To The Detriment Of United States' Companies, Jason Thompson Oct 2006

Aerospace And Antitrust: How The European Union Supports Its Interests To The Detriment Of United States' Companies, Jason Thompson

University of Miami International and Comparative Law Review

No abstract provided.


Understanding Single-Firm Behavior: Empirical Perspectives Session, Jonathan Baker, Luke Froeb, Robert Marshall, Wally Mullin, David Reitman, F. Michael Scherer, Clifford Winston Sep 2006

Understanding Single-Firm Behavior: Empirical Perspectives Session, Jonathan Baker, Luke Froeb, Robert Marshall, Wally Mullin, David Reitman, F. Michael Scherer, Clifford Winston

Presentations

In 2006 and 2007, the Antitrust Division and the Federal Trade Commission (FTC) cohosted hearings on single-firm conduct and antitrust law. For more information, consult the hearings information page or contact the Legal Policy Section at singlefirmconduct@usdoj.gov.


Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden Sep 2006

Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a ...


Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy Sep 2006

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets ...


Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy Sep 2006

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world ...


Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy Sep 2006

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by ...


Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs Sep 2006

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity ...


Economic Evidence In Antitrust: Defining Markets And Measuring Market Power In Paolo Buccirossi, Jonathan Baker, Timothy Bresnahan Sep 2006

Economic Evidence In Antitrust: Defining Markets And Measuring Market Power In Paolo Buccirossi, Jonathan Baker, Timothy Bresnahan

Articles in Law Reviews & Other Academic Journals

This paper addresses an important aspect of the interdisciplinary collaboration between law and economics: the use antitrust courts can and should make of empirical industrial organization economics, in light of the expansion of empirical knowledge generated during the last few decades. First we show how courts can apply what economists have learned about identification of alternative theories of industry structure and firm strategy to the problems of defining markets and determining whether market power has been exercised. We emphasize that the same analytic issues arise regardless of whether the evidence on these concepts is quantitative or qualitative. Second we show ...


Commodity Exchanges And Antitrust, Andrew N. Kleit, James M. Falvey Aug 2006

Commodity Exchanges And Antitrust, Andrew N. Kleit, James M. Falvey

ExpressO

Historically, commodity exchanges have been viewed as natural monopolies, not subject to competitive forces. But in recent years, both technology and regulatory changes have allowed for competition between rival exchanges in various contracts. With competition comes the regulation of competition. The traditional method of regulating competition is through court adjudication of the Sherman Antitrust Act. But in regulated industries, antitrust authority must be shared in some way with the regulatory authority. Then, it must be implemented by the relevant government entity.

This article will explore the impact of competition on this industry and how the exchanges are dealing with the ...


Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman Aug 2006

Standing For Extraterritoriality: Defining The Empagran Exception, Max Huffman

ExpressO

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce.

Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show “the anticompetitive conduct’s domestic effects were linked to their foreign harm” are excepted from the preclusion. This ...


Sherman's March (In)To The Sea, Andrew S. Oldham Aug 2006

Sherman's March (In)To The Sea, Andrew S. Oldham

ExpressO

This Article argues that the Sherman Act is unconstitutional. At the very least, scholars and jurists must not take for granted Congress's ability to statutorily deputize the federal courts with common-lawmaking powers. The federal antitrust statute—which has been described as the Magna Carta of free enterprise—raises serious constitutional questions that have heretofore gone unexplored and unanswered. Specifically, it is difficult (if not impossible) to reconcile the Sherman Act with the separation of powers, the nondelegation doctrine, and the Supremacy Clause.


Wi-Fi Everywhere: Universal Broadband Access As Antitrust And Telecommunications Policy, Hannibal Travis Aug 2006

Wi-Fi Everywhere: Universal Broadband Access As Antitrust And Telecommunications Policy, Hannibal Travis

American University Law Review

No abstract provided.


Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel Jul 2006

Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel

ExpressO

Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


Learning To Love The State Action Doctrine, William S. Brewbaker Jun 2006

Learning To Love The State Action Doctrine, William S. Brewbaker

William S. Brewbaker III

The state action doctrine receives relatively little attention in the Federal Trade Commission/Department of Justice 2004 report on competition in the health care sector. Not surprisingly, the report focuses primarily on urging states to reconsider specific laws that tend to restrict competition in health care markets but that are clearly shielded by the state action doctrine. Relatively little attention is given to the interpretation of the doctrine itself. This article employs the twin themes of institutional choice and market failure to evaluate a number of interpretive proposals affecting the state action doctrine that were available to, but not taken ...


Panel I: Monsanto V. Scruggs: The Scope Of Downstream Licensing Restrictions, Mark R. Patterson, Richard B. Ulmer Jr., Peter Castensen, Jay P. Kesan Jun 2006

Panel I: Monsanto V. Scruggs: The Scope Of Downstream Licensing Restrictions, Mark R. Patterson, Richard B. Ulmer Jr., Peter Castensen, Jay P. Kesan

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Cross Jurisdictional Tolling Of The Statute Of Limitations In Antitrust Claims: Plaintiffs Lose Their Day In Federal Court, John J. Koltse May 2006

Cross Jurisdictional Tolling Of The Statute Of Limitations In Antitrust Claims: Plaintiffs Lose Their Day In Federal Court, John J. Koltse

Seventh Circuit Review

How great is the divide between federal and state courts when state law mirrors federal law? Can federal courts improve judicial efficiency by extending the statute of limitations for federal antitrust claims based on concurrent state antitrust class actions? The Seventh Circuit's recent attempt at docket control in In re Copper Antitrust Litigation refused to accept this counter intuitive approach. This article addresses the effect of the Seventh Circuit's decision, which actually decreased judicial efficiency by encouraging state antitrust class action members to file duplicative claims in federal court despite identical state and federal antitrust statutory schemes.


A Comparison Of Merger Remedies In The U.S. And Eu, Thomas J. Horton Apr 2006

A Comparison Of Merger Remedies In The U.S. And Eu, Thomas J. Horton

Thomas J. Horton

No abstract provided.


Should Internet Protocol-Enabled Video Service Provided Over A Telephone Network Be Regulated As A Cable Service?, Hal J. Singer, J Gregory Sidak, Robert W. Crandall Apr 2006

Should Internet Protocol-Enabled Video Service Provided Over A Telephone Network Be Regulated As A Cable Service?, Hal J. Singer, J Gregory Sidak, Robert W. Crandall

ExpressO

We examine whether, on legal or policy grounds, Internet protocol-enabled video services provided over a telephone network should be regulated as a cable service. We evaluate the history of cable regulation and the services that Congress envisioned to be regulated when it first drafted legislation establishing a regulatory framework for cable television services in 1984. We then examine numerous differences between the IP-enabled video services delivered over a telephone network and those that Congress envisioned when regulating cable television service in 1984 and in subsequent years when it revised the Cable Act of 1984. Finally, we find that municipal franchise ...


Antitrust Governance, Yane Svetiev Apr 2006

Antitrust Governance, Yane Svetiev

ExpressO

In this article, the author argues that antitrust law has entered a new phase of its controversial existence. The role of antitrust in moderating inter-firm relationships depends both on the problems of the underlying market regime and the institutional capacity of antitrust decision-makers to respond to those challenges. For much of the 20th century, the model firm was hierarchical: vertical integration within the business organization was a way of achieving transaction cost efficiencies and delivering higher levels of output at lower prices. Recognition of this fact transformed antitrust from its traditional focus on concentrated power, to a policy focused on ...


Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi Apr 2006

Is There An Antitrust Antidote Against Ip Overprotection Within Trips?, Marco Ricolfi

Marquette Intellectual Property Law Review

The Article explores the mini-body of antitrust provisions to be found within TRIPs. It advocates a general-principles based and systematic interpretative approach of these provisions with a view to finding in them an antidote to the ratcheting up of IP protection otherwise encouraged by TRIPs. In this framework, it is argued that member countries retain considerable flexibility to incorporate pro-competitive inputs and to give appropriate consideration to non-intellectual property interests in adopting legislation at the intersection of antitrust and IP. The Article further develops criteria to assess the TRIPs-compatibility both of antitrust intervention and of generalized, ex ante legislative measures ...


Five Myths About Antitrust Damages, Robert H. Lande Apr 2006

Five Myths About Antitrust Damages, Robert H. Lande

All Faculty Scholarship

This article examines five common beliefs about antitrust damages and shows they all are untrue.

Myth #1. Antitrust violations give rise to treble damages.

Myth #2. There is "duplication" of antitrust damages because many defendants pay six-fold or more damages.

Myth #3. Courts should go easy on defendants when formulating liability rules or calculating overcharges because the awarded damages from a finding of an antitrust violation are so severe.

Myth #4. The size of the harms caused by antitrust violations, even by such "hardcore" violations as naked cartels, is relatively modest, and criminal penalties resulting from violations are out of ...


The Efficiencies Defense In Mergers: The Baby-Food Case Reconsidered , Daniel J. Richards, Richard B. Dagen Mar 2006

The Efficiencies Defense In Mergers: The Baby-Food Case Reconsidered , Daniel J. Richards, Richard B. Dagen

ExpressO

The Federal Trade Commission’s successful challenge to the proposed merger of Heinz and Beech-Nut baby food operations in 2001 remains a controversial case that raises concern over the role of cost efficiencies in merger analysis. Although the FTC argued that the merger would result in an increased likelihood of coordinated effects, we develop an alternative explanation for why the merger was likely to harm consumers even in the absence of such cooperation. We show that a conventional model of vertical product differentiation is able to replicate the premerger market data. Vertical product differentiation assumes that consumers agree on the ...


Mergers And Innovation, Howard A. Shelanski, Michael L. Katz Mar 2006

Mergers And Innovation, Howard A. Shelanski, Michael L. Katz

ExpressO

Merger review is the most active area of U.S. antitrust policy. It is now widely believed that merger policy must move beyond its traditional focus on short-run, price and output effects to account for longer-run effects on technological innovation. The question is, how should merger policy adapt to technological change? Some have argued that the right response is for antitrust authorities to reduce merger enforcement to prevent unintended harm to innovation. Others have suggested that the enforcement agencies analyze a merger’s effects on innovation using the same framework they use to analyze a transaction’s effects on prices ...


Standards Ownership And Competition Policy, Herbert J. Hovenkamp Mar 2006

Standards Ownership And Competition Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present can often be determined without examining the substance of the standard itself.

When government involvement in standard setting is substantial antitrust challenges should generally be rejected. The petitioning process in a democratic system protects even bad legislative judgments from collateral ...