Law Commons^™

Updating The Merger Guidelines: Comments, Steven C. Salop, Serge Moresi

Georgetown Law Faculty Publications and Other Works

These comments (originally submitted to the DOJ and FTC in November 2009) make a number of comments relevant to revising the Merger Guidelines. The comments focus on the use of the GUPPI (gross upward pricing pressure index) in unilateral effects analysis. They also comment on the deterrence and incipiency standard, exclusionary effects of horizontal mergers and market definition when there are multi-product firms or pre-merger coordination, among other issues.

On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit, Stolt-Neilsen S.A., V. Animalfeed International, No. 08-1198 (U.S. Oct. 20, 2009), Cornelia T. Pillard

U.S. Supreme Court Briefs

No abstract provided.

Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch

Faculty Publications

This paper presents a normative study of patent applicant use of invention-date rights during ex parte prosecution.

Quick - Somebody Call Amnesty International! Intel Says Eu Antitrust Fine Violated Human Rights, Robert H. Lande

All Faculty Scholarship

This articles discusses Intel's claim that the EU's fine against it for a competition law violation was so large that its human rights' were violated.

The Price Of Abuse: Intel And The European Commission Decision, Robert H. Lande

All Faculty Scholarship

The May 13, 2009 decision by the European Commission ('EC') holding that Intel violated Article 82 of the Treaty of Rome and should be fined a record amount and prohibited from engaging in certain conduct, set off a predictable four part chorus of denunciations:

1. Intel did nothing wrong and was just competing hard;
2. Intel's discounts were good for consumers;;
3. The entire matter is just another example of Europeans protecting their own against a more efficient U.S. company; and;
4. Even if Intel did engage in anticompetitive activity, the fine was much too large. These assertions will be addressed in turn.;

Of Myths And Evidence: An Analysis Of 40 U.S. Cases For Countries Considering A Private Right Of Action For Competition Law Violations, Robert H. Lande, Joshua P. Davis

All Faculty Scholarship

This article assesses some of the benefits of private enforcement of the United States antitrust laws by analyzing forty large recent, successful private cases. It should help in assessing the desirability and efficacy of private enforcement - information that may prove useful to jurisdictions contemplating a private right of action for competition cases.

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

National Security Review Of Foreign Mergers And Acquisitions Of Domestic Companies In China And The United States, Kenneth Y. Hui

Cornell Law School Inter-University Graduate Student Conference Papers

China’s recently enacted Anti-Monopoly Law has received much academic attention. In particular, many articles and comments have been written about Article 31 of the Anti-Monopoly Law, a provision on national security review of foreign mergers and acquisitions of domestic companies. The provision has often been labelled as draconian and protectionist. This paper argues that Article 31 is not necessarily so. Article 31 is actually, to a large extent, in line with the national security provisions found in liberal economies. By taking a comparative approach, this paper will demonstrate the similarities between the national security laws in China and the United …

A Legal Appraisal Of The West African Free Trade Area, Adedokun O. Ogunfolu

Cornell Law School Inter-University Graduate Student Conference Papers

African countries after independence in the latter half of the twentieth century embraced the formation of Free Trade Areas (FTAs), provided for under Article XXIV of the General Agreement on Trade and Tariffs (GATT 1947), as an exception to Article I Most Favored Nation (MFN) clause. FTAs were the adopted anodyne to reverse systemic underdevelopment wrought by departing colonialists from Europe and the emergence of the European Union. Sub-Saharan Africa encompasses West Africa, and accounted for 1.1 per cent of world trade in 1991. West African share of world exports with the exception of Nigeria fell from 1.6% in 1980 …

The Google Book Search Settlement: Ends, Means, And The Future Of Books, James Grimmelmann

Faculty Scholarship

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement …

How To Fix The Google Book Search Settlement, James Grimmelmann

Faculty Scholarship

The proposed settlement in the Google Book Search case should be approved with strings attached. The project will be immensely good for society, and the proposed deal is a fair one for Google, for authors, and for publishers. The public interest demands, however, that the settlement be modified first. It creates two new entities—the Books Rights Registry Leviathan and the Google Book Search Behemoth—with dangerously concentrated power over the publishing industry. Left unchecked, they could trample on consumers in any number of ways. We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight, …

The Gary Dinners And The Meaning Of Concerted Action, William H. Page

UF Law Faculty Publications

Between 1907 and 1911, executives of American steel manufacturers gathered in a series of social events and meetings that became known as the Gary dinners. Their founder, Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation (U.S. Steel), believed the dinners were a lawful way to stabilize steel prices by enabling manufacturers to tell each other "frankly and freely what they were doing, how much business they were doing, what prices they were charging, how much wages they were paying their men, and... all information concerning their business." The government agreed that the dinners stabilized …

Analyzing Horizontal Mergers: Unilateral Effects In Product-Differentiated Markets, Herbert J. Hovenkamp

All Faculty Scholarship

This essay offers a brief, non-technical exposition of the antitrust analysis of horizontal mergers in product differentiated markets where the resulting price increase is thought to be unilateral - that is, only the post-merger firm increases its prices while other firms in the market do not. More realistically, non-merging firms who are reasonably close in product space to the merging firm will also be able to increase their prices when the post-merger firm's prices rise. The unilateral effects theory is robust and has become quite conventional in merger analysis. There is certainly no reason for thinking that it involves any …

The Neal Report And The Crisis In Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The Neal Report, which was commissioned by Lyndon Johnson and published in 1967, is rightfully criticized for representing the past rather than the future of antitrust. Its authors completely embraced a theory of competition and industrial organization that had dominated American economic thinking for forty years, but was just in the process of coming to an end. The structure-conduct-performance (S-C-P) paradigm that the Neal Report embodied had in fact been one of the most elegant and most tested theories of industrial organization. The theory represented the high point of structuralism in industrial organization economics, resting on the proposition that certain …

Revitalizing Section 5 Of The Ftc Act Using “Consumer Choice” Analysis, Robert H. Lande

All Faculty Scholarship

This paper makes two points. First, Section 5 of the FTC Act, properly construed, is indeed significantly broader and more encompassing than the Sherman Act or Clayton Act. Section 5 violations include incipient violations of the other antitrust laws, and also violations of their policy or spirit.

Second, the best - and probably the only - way to interpret Section 5 in an expansive manner is to do so in a way that also is relatively definite, predictable, principled and clearly bounded. This best can be done if Section 5 is articulated using the consumer choice framework. Without the discipline …

Mergers And Market Dominance, Herbert J. Hovenkamp

All Faculty Scholarship

Mergers involving dominant firms legitimately receive close scrutiny under the antitrust laws, even if they involve tiny firms. Further, they should be examined closely even in markets that generally exhibit low entry barriers. Many of the so-called "unilateral effects" cases in current merger law are in fact mergers that create dominant firms. The rhetoric of unilateral effects often serves to disguise this fact by presenting the situation as if it involves the ability of a small number of firms (typically two or three) in a much larger market to increase their price to unacceptable levels. In fact, if such a …

Trapped In A Metaphor: The Limited Implications Of Federalism For Corporate Governance, Robert B. Ahdieh

Faculty Scholarship

Trapped in a metaphor articulated at the founding of modern corporate law, the study of corporate governance has - for some thirty years - been asking the wrong questions. Rather than a singular race among states, whether to the bottom or the top, the synthesis of William Cary and Ralph Winter’s famous exchange is better understood as two competitions, each serving distinct normative ends. Managerial competition advances the project that has motivated corporate law since Adolf Berle and Gardiner Means - effective regulation of the separation of ownership and control. State competition, by contrast, does not promote a race to …

Building Antitrust Agency Capacity In Context, Salil Mehra

NULR Online

No abstract provided.

Regulatory Competition, Choice Of Forum And Delaware’S Stake In Corporate Law, Faith Stevelman

Articles & Chapters

As Delaware corporate law confronts the twenty-first-century global economy, the state's legislators and jurists are becoming sensitive to increased threats to the law's sustained preeminence. The increased presence of federal laws and regulations in areas of corporate governance traditionally allocated to the states has been widely noted. The growth of federal corporate law standards may be undermining Delaware's confidence in the sustained prosperity of its chartering business - which has been a vital source of revenues and prestige for Delaware, its equity courts, and especially its corporate bar. The Delaware Court of Chancery appears to be concerned about the emigration …

Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane

Reviews

Of all of Chicago's law and economics conquests, antitrust was the most complete and resounding victory. Chicago, of course, is a synecdoche for ideological currents that swept through and from Hyde Park beginning in the 1950s and reached their peak in the 1970s and 1980s. From early roots in antitrust and economic regulation, the Chicago School branched outward, first to adjacent fields like securities regulation, corporate law, property, and contracts, and eventually to more distant horizons like sexuality and family law. Predictably, the Chicago School exerted its greatest influence in fields closely tied to commercial regulation. But never did Chicago …

Selection Neglect In Mutual Fund Advertisements, Jonathan Koehler, Molly Mercer

Faculty Working Papers

Mutual fund companies selectively advertise their better-performing funds. However, investors respond to advertised performance data as if those data were unselected (i.e., representative of the population). We identify the failure to discount selected or potentially selected data as selection neglect. We examine these phenomena in an archival study (Study 1) and two controlled experiments (Studies 2 and 3). Study 1 identifies selection bias in mutual fund advertising by showing that the median performance rank for advertised funds is between the 79th and 100th percentile. Study 2 finds that both novice investors and financial professionals fall victim to selection neglect in …

Competition Law And The Institutional Embeddedness Of Economics, David J. Gerber

All Faculty Scholarship

Transnational debates about the role of economics in competition law have paid relatively little systematic attention to the embeddedness of economics in institutions. They typically proceed as if embeddedness were not an issue. The assumption often appears to be that economics looks, acts and functions in the same way wherever it is applied. This assumption is frequently the basis for claims supporting increased use of economics in competition law systems around the world.

This article examines that assumption and argues that the institutional embeddedness of economics needs to be taken into account when we wish to evaluate and analyze the …

Anticompetitive Trade Remedies: How Antidumping Measures Obstruct Market Competition, Sungjoon Cho

All Faculty Scholarship

Through trade policies such as antidumping remedies, the United States government often protects domestic producers at the expense of market competition. Yet a judicially created antitrust immunity, the Noerr-Pennington doctrine, obstructs the Federal Trade Commission’s antitrust investigations of these trade remedies. This Article argues that judicial and administrative interventions are needed to restore antitrust oversight when implementing trade remedies. This Article does not propose a repealing of the current antidumping statue, an act that would be politically infeasible in the current protectionist atmosphere of Congress. Instead, it takes a more modest yet realistic stance: antidumping remedies must be sanitized by …

Leveraged Liquidity: Bear Raids And Junk Loans In The New Credit Market, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Marketing Mothers' Milk: The Commodification Of Breastfeeding And The New Markets For Breast Milk And Infant Formula, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This paper explores the commodification of women and biological processes, the confusion of scientific evidence with social agendas, and the conflict between marketing and public health. I assert that key actors in the healthcare marketplace - government, businesses, and doctors – have acted to enable weak medical and scientific evidence to be manipulated by ideological and profit-making partisans in a poorly regulated market. I focus on the unique role of the medical profession, which has acted with government and the private sector to shape the markets in human milk and infant formula. In a striking parallel to the pharmaceutical industry, …

Dr. Miles Is Dead. Now What?: Structuring A Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert

Faculty Publications

This article critiques six approaches that have been proposed for evaluating minimum RPM and offers an alternative approach. The six approaches critiqued are (1) the Brandeisian, unstructured rule of reason; (2) Judge Posner's rule of per se legality; (3) the approach advocated by 27 states in the recent Nine West case; (4) the approach adopted by the Federal Trade Commission in that case; (5) the approach advocated by economists William Comanor and F.M. Scherer; and (6) the approach proposed in the Areeda & Hovenkamp Antitrust Law treatise. Finding each of these approaches deficient, the article proposes an alternative evaluative approach …

The Evolution Of Chinese Merger Notification Guidelines: A Work In Progress Integrating Global Consensus And Domestic Imperatives, Susan Beth Farmer

Journal Articles

China is among the most recent entrants into global competition enforcement, having adopted the first competition law of general application, the Anti-Monopoly Law (AML) after more than a decade of drafting. The AML and Merger Notification Thresholds, rules issued by decree of the State Council, became effective on August 3, 2008. Both the law and the guidelines were subject to public review and comment, and went through a number of drafts before final adoption.

This article is a comprehensive comparison of merger standards across jurisdictions, with particular focus on the evolution of merger regulation in China. It comprises six parts; …

The Viability Of Antitrust Price Squeeze Claims, Erik Hovenkamp, Herbert J. Hovenkamp

All Faculty Scholarship

A price squeeze occurs when a vertically integrated firm "squeezes' a rival's margins between a high wholesale price for an essential input sold to the rival, and a low output price to consumers for whom the two firms compete. Price squeezes have been a recognized but controversial antitrust violation for two-thirds of a century. We examine the law and economics of the price squeeze, beginning with Judge Hand's famous discussion in the Alcoa case in 1945. While Alcoa has been widely portrayed as creating a "fairness" or "fair profit" test for unlawful price squeezes, Judge Hand actually adopted a cost-based …

Patents, Property, And Competition Policy, Herbert J. Hovenkamp

All Faculty Scholarship

The decision to regulate involves the identification of markets where simple assignment of property rights is not sufficient to ensure satisfactory competitive results, usually because some type of market failure obtains. By contrast, if property rights are well defined when they are initially created and can subsequently be traded to some reasonably competitive equilibrium, then regulation is thought not to be necessary. In such cases the antitrust laws have a significant role to play in ensuring that the market can be as competitive as free trading allows. One problem with the patent system is that once a patent is granted …

The Past, Present, And Future Of Monopolization Remedies., Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.