Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Antitrust and Trade Regulation (47)
- Law and Economics (15)
- Social and Behavioral Sciences (15)
- Economics (13)
- Consumer Protection Law (10)
-
- International Law (9)
- Business Organizations Law (8)
- Intellectual Property Law (8)
- Commercial Law (7)
- Communications Law (7)
- Entertainment, Arts, and Sports Law (7)
- International Trade Law (6)
- Internet Law (6)
- Administrative Law (5)
- Comparative and Foreign Law (5)
- Courts (5)
- Law and Society (5)
- Civil Rights and Discrimination (4)
- Computer Law (4)
- Contracts (4)
- Environmental Law (4)
- Food and Drug Law (4)
- Jurisdiction (4)
- Labor and Employment Law (4)
- Law and Politics (4)
- Public Law and Legal Theory (4)
- Science and Technology Law (4)
- Securities Law (4)
- Accounting Law (3)
- Institution
-
- BLR (24)
- Selected Works (8)
- American University Washington College of Law (5)
- Marquette University Law School (3)
- SelectedWorks (3)
-
- University of Baltimore Law (3)
- University of Missouri School of Law (3)
- Columbia Law School (2)
- University of Pennsylvania Carey Law School (2)
- Vanderbilt University Law School (2)
- Case Western Reserve University School of Law (1)
- Chicago-Kent College of Law (1)
- Cleveland State University (1)
- Fordham Law School (1)
- Maurer School of Law: Indiana University (1)
- Notre Dame Law School (1)
- Penn State Law (1)
- Saint Louis University School of Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Miami Law School (1)
- University of Missouri-Kansas City School of Law (1)
- University of Tennessee College of Law (1)
- Publication
-
- ExpressO (22)
- All Faculty Scholarship (6)
- Faculty Publications (4)
- Michal Gal (4)
- Articles in Law Reviews & Other Academic Journals (3)
-
- Christopher R. Leslie (3)
- Faculty Scholarship (3)
- Journal Articles (2)
- Marquette Sports Law Review (2)
- Thomas J. Horton (2)
- Vanderbilt Journal of Transnational Law (2)
- Wilmer Cutler Pickering Hale and Dorr Antitrust Series (2)
- American University Law Review (1)
- Articles by Maurer Faculty (1)
- Faculty Works (1)
- Fordham Intellectual Property, Media and Entertainment Law Journal (1)
- Law Faculty Articles and Essays (1)
- Marquette Intellectual Property Law Review (1)
- Presentations (1)
- Reza Dibadj (1)
- Scholarly Works (1)
- Seventh Circuit Review (1)
- University of Miami International and Comparative Law Review (1)
- William S. Brewbaker III (1)
- Publication Type
- File Type
Articles 31 - 60 of 67
Full-Text Articles in Law
Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin
Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin
ExpressO
This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …
Regulation Of Joint Ventures Under Article 81 Of Eu Treaty, Rahul Goel
Regulation Of Joint Ventures Under Article 81 Of Eu Treaty, Rahul Goel
ExpressO
The paper discusses Article 81 of EU treaty, which focuses on the analysis of the competitive behavior of a joint venture participant in co-operative non-full-function joint venture with focus on telecommunications sector. The Article 81 analyses the joint ventures that fail to satisfy the threshold of the European Commission’s Merger Regulation (ECMR) due to the factors that either they are not fully-functional in nature or lack a community dimension.
Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane
Rules Versus Standards In Antitrust Adjudication, Daniel A. Crane
ExpressO
Antitrust law is moving away from rules (ex ante, limited factor liability determinants) and toward standards (ex post, multi-factor liability determinants). This movement has important consequences for the structure of antitrust adjudication, including shifting ultimate decision-making down the legal hierarchy (in the direction of juries, trial courts sitting as fact-finders, and administrative agencies) and increasing the importance of economic experts. The efficiency consequences of this trend are often negative. Specifying liability determinants as open-ended, unpredictable standards increases litigation costs, chills socially beneficial industrial practices, allocates decision-making on microeconomic policy to unqualified juries, and facilitates strategic misuse of antitrust litigation by …
Microsoft And Trinko: A Tale Of Two Courts, Spencer Weber Waller
Microsoft And Trinko: A Tale Of Two Courts, Spencer Weber Waller
ExpressO
In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court's 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time …
Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler
Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler
Faculty Publications
The alleged purpose of antitrust law is to improve consumer welfare by proscribing actions and arrangements that reduce output and increase prices. Conservation seeks to improve human welfare by maximizing the long-term productive use of natural resources, a goal that often requires limiting consumption to sustainable levels. While conservation measures might increase prices in the short run, they enhance consumer welfare by increasing long-term production and ensuring the availability of valued resources over time. That is true whether the restrictions are imposed by a private conservation cartel or a government agency. Insofar as antitrust law fails to take this into …
Antitrust Damages And Deadweight Loss (Symposium), Christopher Leslie
Antitrust Damages And Deadweight Loss (Symposium), Christopher Leslie
Christopher R. Leslie
No abstract provided.
Antitrust Amnesty, Game Theory, And Cartel Stability, Christopher R. Leslie
Antitrust Amnesty, Game Theory, And Cartel Stability, Christopher R. Leslie
Christopher R. Leslie
This paper reviews, and proposes revisions to, the government's Corporate Leniency Policy, which confers leniency upon the first member of a price-fixing cartel to expose the illegal activity to the DOJ's Antitrust Division. Three important limitations apply. First, the ringleader of the cartel is ineligible for immunity. Second, leniency is not automatic if the government has its own internal investigation significantly underway. Third, a firm must confess "promptly" in order to qualify for amnesty. This paper proposes doing away with these limitations. It may seem counter-intuitive to enact policies that make it easier for the worst antitrust criminals to escape …
The Anticompetitive Effects Of Unenforced Invalid Patents, Christopher R. Leslie
The Anticompetitive Effects Of Unenforced Invalid Patents, Christopher R. Leslie
Christopher R. Leslie
Antitrust law and patent law assume that an invalid patent cannot distort competition unless the patentee enforces the patent by initiating infringement litigation or explicitly threatening to do so. The Article argues that invalid patents can destroy competition - even without such enforcement efforts - by creating legitimate fears of litigation, increasing the costs of market entry, delaying market entry, scaring away competitors' customers and business partners, and deterring research. Despite the anticompetitive risks posed by invalid patents, neither patent law nor antitrust law does an effective job of ridding the marketplace of invalid patents. In particular, because antitrust law …
The Law Of Exclusionary Pricing, Herbert J. Hovenkamp
The Law Of Exclusionary Pricing, Herbert J. Hovenkamp
All Faculty Scholarship
The success of the Areeda-Turner test for predatory pricing and the Supreme Court's adoption of demanding proof requirements in its 1993 Brooke Group decision have made it very difficult for plaintiffs to win conventional predatory pricing claims. While many challenges to exclusionary pricing continue to be made, the legal theory has evolved away from classical predation to a variety of other theories. These include challenges to quantity and market share discounts, single item and package discounts, and various purchasing practices, including slotting fees, overinvestment in fixed cost assets, and overbuying of variable cost inputs. Plaintiffs have enjoyed somewhat greater success …
Should Predatory Pricing Rules Immunize Exclusionary Discounts?, Robert H. Lande
Should Predatory Pricing Rules Immunize Exclusionary Discounts?, Robert H. Lande
All Faculty Scholarship
The purpose of this commentary is to analyze some of the empirical issues that help lay the foundation for the policy conclusions in the excellent and provocative article by Professor Herbert Hovenkamp, Discounts and Exclusion (hereinafter "D&E"). To oversimplify, D&E asserts that discounts usually are procompetitive. It also concedes, but essentially in its footnotes, that discounts can be anticompetitive, but argues that these anticompetitive situations are so rare they should have little impact on public policy. D&E then asserts that efficiencies from discounts are common and significant. It then asserts that the only way to bring clarity, predictability, and an …
The Size Of Cartel Overcharges: Implications For U.S. And Ec Fining Policies, John M. Connor, Robert H. Lande
The Size Of Cartel Overcharges: Implications For U.S. And Ec Fining Policies, John M. Connor, Robert H. Lande
All Faculty Scholarship
The purpose of this article is to examine whether the current cartel fine levels of the European Union (EU) and the United States are at the optimal levels. We collected and analyzed the available information concerning the size of the overcharges caused by hard-core pricing fixing, bid rigging, and market allocation agreements. Data sets of United States cartels were assembled and examined. These cartels overcharged an average of 18% to 37%, depending upon the data set and methodology employed in the analysis and whether mean or median figures are used. Separate data sets for European cartels also were analyzed, which …
Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru
Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru
Articles in Law Reviews & Other Academic Journals
Professional sports organizations' relationships with their players are, like other employer-employee relationships, subject to scrutiny under the antidiscrimination mandates embedded in Title VII of the Civil Rights Act of 1964. Professional sports organizations are, however, unique among employers in many respects. Most notably, unlike other employers, professional sports organizations attract avid supporters who identify deeply with the teams and their players. To the extent an organization racially discriminates, therefore, such discrimination creates the risk that fans will identify with the homogenous or racially disproportionate roster that results. The consequences of such race-based team identification are wide-reaching and potentially tragic. Through …
Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski
Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski
Marquette Sports Law Review
No abstract provided.
Coaching In The National Football League: A Market Survey And Legal Review, Robert H. Lattinville, Robert A. Boland
Coaching In The National Football League: A Market Survey And Legal Review, Robert H. Lattinville, Robert A. Boland
Marquette Sports Law Review
No abstract provided.
Concentrated Monopolies (In Hebrew), Michal Gal, Menachem Perlman, Talya Solomon
Concentrated Monopolies (In Hebrew), Michal Gal, Menachem Perlman, Talya Solomon
Michal Gal
No abstract provided.
Monopolies In Competition: The Balance Between Innovativeness And Competition In The Israeli Competition Law (In Hebrew), Michal Gal
Michal Gal
No abstract provided.
Major Events And Policy Issues In Ec Competition Law, 2004-2005 (Part 1), John Ratliff
Major Events And Policy Issues In Ec Competition Law, 2004-2005 (Part 1), John Ratliff
Wilmer Cutler Pickering Hale and Dorr Antitrust Series
This article is designed to offer an overview of the major events and policy issues related to Arts 81, 82 and 86 EC in 2004–2005. The article follows the format of previous years and is divided into three sections: — A general overview of major events (legislation and notices, European Court cases, European Commission decisions, ECN developments and new sector inquiries). — Discussion of current policy issues, including cartel enforcement, private actions and Art.82 EC modernisation. — An outline of certain areas of specific interest, notably competition and the liberal professions, the Commission’s ‘‘Sport and 3G’’ review and a DG …
Rankings, Reductionism, And Responsibility, Frank Pasquale
Rankings, Reductionism, And Responsibility, Frank Pasquale
Faculty Scholarship
After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …
Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski
Antitrust And Inefficient Joint Ventures: Why Sports Leagues Should Look More Like Mcdonald's And Less Like The United Nations, Stephen F. Ross, Stefan Szymanski
Journal Articles
Antitrust law generally favors joint ventures that allow separate firms to integrate economic functions while continuing to compete as independent entities. In evaluating the risks to competition that joint ventures could pose, insufficient attention has been paid to the risk that joint ventures with market power may be structured so that the parties, acting in their independent self interest, will prevent the venture from providing innovative goods and services responsive to consumer demand. In these cases, it may be better if a single firm provided services rather than having them provided jointly.
We illustrate this problem by challenging the conventional …
Competition Policy As A Political Bartain, Jonathan Baker
Competition Policy As A Political Bartain, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
Competition policy in the U.S. may be understood as a self-enforcing political bargain emerging from a repeated political interaction between two large and diffuse interest groups, consumers and producers. Absent such a bargain, regulatory policy would fluctuate between pro-producer policies that tolerate the exercise of market power and pro-consumer policies that systematically redistribute surplus from producers to consumers. This perspective is consistent with the broad contours of the historical U.S. experience with antitrust, particularly with the continuity in antitrust enforcement and decline in the political salience of competition policy since the 1940s. The adoption of Chicago school views during the …
The Demise Of Regulation In Ocean Shipping, Chris Sagers
The Demise Of Regulation In Ocean Shipping, Chris Sagers
Vanderbilt Journal of Transnational Law
Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world's rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing.
Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was …
Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer
Refusals To Deal With Competitors By Owners Of Patents And Copyrights: Reflections On The Image Technical And Xerox Decisions, Joseph P. Bauer
Journal Articles
Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors.
The central question addressed by this …
Transnational Regulatory Litigation, Hannah Buxbaum
Transnational Regulatory Litigation, Hannah Buxbaum
Articles by Maurer Faculty
Recent years have seen much debate about the role of national courts in addressing global harms. That debate has focused on the application by domestic courts of international law - for instance, in civil actions brought in U.S. courts to enforce human rights law. This article identifies a parallel development in the area of economic regulation. It classifies and analyzes a category of cases that seek the application of regulatory law by domestic courts in situations involving global economic misconduct. Like the public international law cases, these cases highlight the tension between the benefits to be gained by enhanced enforcement …
Harold Maier, Comity, And The Foreign Relations Restatement, Andreas F. Lowenfeld
Harold Maier, Comity, And The Foreign Relations Restatement, Andreas F. Lowenfeld
Vanderbilt Journal of Transnational Law
Hal Maier's career and mine have interacted in several respects. We have both served in the Legal Adviser's Office of the State Department; we have both taught Conflict of Laws as well as International Law; and we have both tried to show--I believe successfully--that there is no sharp divide between "Public International Law" and "Private International Law." In particular, we have both been interested in the reach and limits of economic regulation across international frontiers, initially in connection with antitrust and securities regulation, but also in connection with economic sanctions, pollution controls, and other interactions of governmental and private activity. …
Do Reverse Payment Settlements Violate The Antitrust Laws, Christopher M. Holman
Do Reverse Payment Settlements Violate The Antitrust Laws, Christopher M. Holman
Faculty Works
The term "reverse payment" has been used as shorthand to characterize a variety of diverse agreements between patent owners and alleged infringers that involve a transfer of consideration from the patent owner to the alleged infringer. Reverse payment settlements are particularly associated with drug patent challenges mounted by generic drug companies under the Hatch-Waxman Act. Many, including the Federal Trade Commission, would characterize these agreements as antitrust violations. However, courts have generally declined to find these agreements in violation of the antitrust laws based solely on the presence of a reverse payment.
This article begins in Section II with an …
The Demise Of Regulation In Ocean Shipping: A Study In The Evolution Of Competition Policy And The Predictive Power Of Microeconomics, Christopher L. Sagers
The Demise Of Regulation In Ocean Shipping: A Study In The Evolution Of Competition Policy And The Predictive Power Of Microeconomics, Christopher L. Sagers
Law Faculty Articles and Essays
Over its 140 year history, ocean liner shipping has almost always enjoyed an antitrust exemption permitting price-fixing cartels of ocean carriers. The exemption was premised on the belief that problems of cost and capacity inherent in the trade can be resolved only by horizontal collusion. Now that that exemption has been whittled away by deregulatory efforts, the pre- and post-deregulation evidence presents one of the world's rare opportunities for natural experiment on the behavior and effectiveness of collusive cartel pricing. Moreover, because normal and effective competition never really existed prior to 1998, the normative foundation of the antitrust exemption was …
Antitrust & Hospital Mergers: Does The Nonprofit Form Affect Competitive Substance?, Thomas L. Greaney
Antitrust & Hospital Mergers: Does The Nonprofit Form Affect Competitive Substance?, Thomas L. Greaney
All Faculty Scholarship
Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context …
Tweaking Antitrust's Business Model , Thom Lambert
Tweaking Antitrust's Business Model , Thom Lambert
Faculty Publications
This essay evaluates Hovenkamp's suggestions, concluding that most are sound, that a few might be slightly revised to enhance their effectiveness or administrability, and that a couple are downright unwise. In particular, the essay criticizes Hovenkamp's call for abandonment of the indirect purchaser rule and his proposed test for identifying exclusionary conduct under Section 2 of the Sherman Act.
The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert
The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert
Faculty Publications
The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds as follows: …
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Faculty Publications
A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.