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Articles 1 - 21 of 21
Full-Text Articles in Law
Innovations In Antitrust Enforcement, George A. Hay
Innovations In Antitrust Enforcement, George A. Hay
George A. Hay
Each antitrust administration, both at the Department of Justice and the Federal Trade Commission, has its theme—one or a few areas of antitrust enforcement that it wants to pay particular attention to and in that way be identified with. And, as part of this emphasis, administrations often seek to innovate in some way or another, to do something different, or in a different way than previous administrations. One factor stimulating innovation in antitrust enforcement is simply that new people with new ideas come into a new job. Sometimes those new people bring with them ideas that they had been developing …
Oligopoly, Shared Monopoly, And Antitrust Law, George A. Hay
Oligopoly, Shared Monopoly, And Antitrust Law, George A. Hay
George A. Hay
No abstract provided.
Horizontal Agreements: Concept And Proof, George A. Hay
Horizontal Agreements: Concept And Proof, George A. Hay
George A. Hay
It is well established that, absent some very special circumstances, agreements on price or certain other terms of trade by otherwise competing entities (i.e., "horizontal agreements") are unlawful per se under the Sherman Act. In practical effect, once the fact of the horizontal agreement has been established, an adverse impact on competition is presumed, and therefore that the plaintiff is spared the burden of proving such an impact. The principal task for plaintiffs in such cases, therefore, is establishing the existence of an agreement.
In the ideal world (from plaintiffs' perspective), there would be "hard" evidence of a "formal" agreement. …
Market Power In Antitrust, George A. Hay
Market Power In Antitrust, George A. Hay
George A. Hay
The concept of market power is at the core of antitrust. Philosophically, antitrust policy is aimed primarily at preventing firms from achieving, retaining, or abusing market power. Operationally, assessing whether a firm or firms have market power or any reasonable prospect for achieving it is often the first (and sometimes, the only) step in performing an antitrust analysis. Few would dispute that market power should play a prominent role in antitrust analysis. Nevertheless, important questions remain. Some of these questions quite naturally focus on the precise degree of importance given to market power. Is it an essential ingredient in antitrust …
Predatory Pricing, George A. Hay
The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay
The Meaning Of "Agreement" Under The Sherman Act: Thoughts From The "Facilitating Practices" Experience, George A. Hay
George A. Hay
While the Economic Policy Office was involved in a number of interesting and important matters during the six years I was Director (1973–1979), for the most part my involvement in individual investigations and cases was vicarious, i.e., supervising, supporting, and advising the staff economists assigned to the particular matter. The one major exception – a matter in which I became personally involved in an intensive way – was the General Electric (GE)-Westinghouse price signaling matter. In what follows, I provide a brief summary of what transpired in the GE-Westinghouse matter and then trace through some of the longer term consequences …
Is The Glass Half-Empty Or Half-Full?: Reflections On The Kodak Case, George A. Hay
Is The Glass Half-Empty Or Half-Full?: Reflections On The Kodak Case, George A. Hay
George A. Hay
No abstract provided.
The Ftc And Pricing: Of Predation And Signaling, George A. Hay
The Ftc And Pricing: Of Predation And Signaling, George A. Hay
George A. Hay
This paper summarizes and comments on two recent FTC cases. The first case involved accusations of predatory pricing against Borden, the manufacturer of ReaLemon, the dominant brand of reconstituted lemon juice. The second involved price-signaling and other so-called facilitating practices by the four makers of lead-based antiknock compounds.
The Antidumping Law: Repeal It Or Revise It, John J. Barceló Iii
The Antidumping Law: Repeal It Or Revise It, John J. Barceló Iii
John J. Barceló III
No abstract provided.
The Rule Of Reason And The Goals Of Antitrust: An Economic Approach, Roger D. Blair, D. Daniel Sokol
The Rule Of Reason And The Goals Of Antitrust: An Economic Approach, Roger D. Blair, D. Daniel Sokol
D. Daniel Sokol
In this paper, we discuss the problem of the rule of reason and the welfare standard in antitrust. We begin with the Introduction (Section I), which provides an overview of the problem. In Section II, we review the Supreme Court’s guidance on the standard for conducting a rule of reason analysis. Put simply, the Supreme Court has failed to identify clearly what standard to use in conducting a rule of reason inquiry. After a careful — albeit selective — reading of Supreme Court opinions it is simply not clear. While a case can be made for total welfare as the …
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
Standard Oil And U.S. Steel: Predation And Collusion In The Law Of Monopolization And Mergers, William H. Page
William H. Page
The Supreme Court’s 1911 decision in Standard Oil gave us embryonic versions of two foundational standards of liability under the Sherman Act: the rule of reason under Section 1 and the monopoly power/exclusionary conduct test under Section 2. But a case filed later in 1911, United States v. United States Steel Corporation, shaped the understanding of Standard Oil’s standards of liability for decades. U.S. Steel, eventually decided by the Supreme Court in 1920, upheld the 1901 merger that created "the Corporation," as U.S. Steel was known. The majority found that the efforts of the Corporation and its rivals to control …
Communication And Concerted Action, William H. Page
Communication And Concerted Action, William H. Page
William H. Page
It is a familiar scenario in U.S. antitrust litigation: The plaintiffs allege that a pattern of identical pricing (or refusals to deal) is "concerted" and therefore per se illegal; the defendant responds that the practice is merely "consciously parallel" or "interdependent" and therefore legal. Under U.S. law, to avoid summary judgment or judgment as a matter of law, a plaintiff must produce a "plus factor," evidence that "tends to exclude the possibility" that the defendants' actions were merely interdependent. Courts have identified various plus factors -- for example, evidence that the alleged conduct was against the defendant's interest unless it …
State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page
State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page
William H. Page
Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal. In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction …
Predatory Hiring As Exclusionary Conduct: A New Perspective, Richard J. Braun, Michael A. Williams
Predatory Hiring As Exclusionary Conduct: A New Perspective, Richard J. Braun, Michael A. Williams
The Journal of Business, Entrepreneurship & the Law
The showing of predatory or exclusionary conduct is a necessary element to prove an attempted monopolization claim under section 2 of the Sherman Act. Predatory hiring as a form of exclusionary conduct has not been extensively analyzed from legal or economic perspectives. Most litigated cases have followed Universal Analytics, Inc. v. MacNeal-Schwendler Corp., where the court held that unlawful predatory hiring occurs when talent is acquired not for purposes of using that talent, but for purposes of denying it to a competitor. An anticompetitive act by a single firm is an act that is not profit maximizing but for the …
Fear And Loathing Of Class Action Arbitration, Or How To Dismiss The Effective Vindication Doctrine, Mark Bolin
Fear And Loathing Of Class Action Arbitration, Or How To Dismiss The Effective Vindication Doctrine, Mark Bolin
Loyola of Los Angeles Law Review
No abstract provided.
The Competing Approaches To The Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement, Morgan Franz
The Competing Approaches To The Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement, Morgan Franz
Pepperdine Law Review
This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” …
Defining Unreasonably Exclusionary Conduct: The 'Exclusion Of A Competitive Rival' Approach, Thom Lambert
Defining Unreasonably Exclusionary Conduct: The 'Exclusion Of A Competitive Rival' Approach, Thom Lambert
Faculty Publications
Unreasonably exclusionary conduct, the element common to monopolization and attempted monopolization offenses under Section 2 of the Sherman Act, remains essentially undefined. Federal courts, including the U.S. Supreme Court, have purported to define the term, but the definitions they have offered are so indeterminate as to be, in the words of one prominent commentator, “not just vague but vacuous.” Seeking to fill the void left by the courts, antitrust scholars have in recent years proposed four universal definitions of unreasonably exclusionary conduct. Each, however, is deficient: One would fail to deter a substantial amount of anticompetitive conduct, and the other …
Towards The Heart Of The Sport: A Sporting Perspective On Abraham & Veneklasen Joint Venture V. American Quarter Horse Association, Samuel D. Hinkle, Maria Gall
Towards The Heart Of The Sport: A Sporting Perspective On Abraham & Veneklasen Joint Venture V. American Quarter Horse Association, Samuel D. Hinkle, Maria Gall
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane
The Tempting Of Antitrust: Robert Bork And The Goals Of Antitrust Policy, Daniel A. Crane
Articles
Of all Robert Bork’s many important contributions to antitrust law, none was more significant than his identification of economic efficiency, disguised as consumer welfare, as the sole normative objective of U.S. antitrust law. The Supreme Court relied primarily on Bork’s argument that Congress intended the Sherman Act to advance consumer welfare in making its landmark statement in Reiter v. Sonotone that “Congress designed the Sherman Act as a ‘consumer welfare prescription.’” This singular normative vision proved foundational to the reorientation of antitrust law away from an interventionist, populist, Brandeisian, and vaguely Jeffersonian conception of antitrust law as a constraint on …
Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec
Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec
Faculty Scholarship
In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.
Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, …
The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison
The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison
UF Law Faculty Publications
To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …