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Articles 1 - 30 of 185
Full-Text Articles in Law
Big Ink V. Bigger Tech, Ramsi Woodcock
Big Ink V. Bigger Tech, Ramsi Woodcock
Law Faculty Popular Media
When in 2011 Paul Krugman attacked the press for bending over backwards to give equal billing to conservative experts on social security, even though the conservatives were plainly wrong, I celebrated. Social security isn’t the biggest part of the government’s budget, and calls to privatize it in order to save the country from bankruptcy were blatant fear mongering. Why should the press report those calls with a neutrality that could mislead readers into thinking the position reasonable?
Journalists’ ethic of balanced reporting looked, at the time, like gross negligence at best, and deceit at worst. But lost in the pathos …
Conspiracy Allegations In The Stock Loan Market: Why Plaintiffs Should Be Seeking A Remedy In Congress And Not In Court, Danielle P. Katz
Conspiracy Allegations In The Stock Loan Market: Why Plaintiffs Should Be Seeking A Remedy In Congress And Not In Court, Danielle P. Katz
Et Cetera
This Article first provides a comprehensive analysis of conspiracy allegations in over-the-counter markets, focusing on the stock loan market as an exemplar.
Multiple conspiracy claims, implicating antitrust law, have been brought regarding over the counter markets since the financial crisis of 2008. The biggest banks in the country have been the center of novel complaints, new regulations, and innovative legislation in the recent years. But, despite regulation and legislation, Sherman Act litigation alleging conspiracy has endured as plaintiffs claim that big banks are conspiring to fix markets when, in fact, they are exercising economies of scale to provide unique, tailored …
Hunting Unicorns, Aaron Edlin
Hunting Unicorns, Aaron Edlin
Aaron Edlin
Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo
Broadening Consumer Law: Competition, Protection, And Distribution, Rory Van Loo
Notre Dame Law Review
Policymakers and scholars have in distributional conversations traditionally ignored consumer laws, defined as the set of consumer protection, antitrust, and entry-barrier laws that govern consumer transactions. Consumer law is overlooked partly because tax law is cast as the most efficient way to redistribute. Another obstacle is that consumer law research speaks to microeconomic and siloed contexts—deceptive fees by Wells Fargo or a proposed merger between Comcast and Time Warner Cable. Even removing millions of dollars of deceptive credit card fees across the nation seems trivial compared to the trillion-dollar growth in income inequality that has sparked concern in recent decades. …
Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw
Avoiding Market Definition Under Section 1 Of The Sherman Act, Johnny Shaw
Fordham Law Review
The 2018 U.S. Supreme Court decision in Ohio v. American Express Co. was at odds with a trend among antitrust commentators and enforcement authorities away from dependence on formal market definition as part of plaintiffs’ burden of proof. Reliance on market definition as a dispositive issue has been ubiquitous in antitrust cases, but the costs from errors, inefficiency, and uncertainty inherent in that approach are glaring. The issue is ripe for clarification, and this Note suggests a new rule to that end. The proposed rule aims to delineate a set of cases in which formal market definition can confidently be …
Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker
Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker
Faculty Scholarship
Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the most …
Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop
Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.
The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and raising entry barriers. …
Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris
Intellectual Property For Breakfast: Market Power And Informative Symbols In The Marketplace, P. Sean Morris
Cleveland State Law Review
This Article continues to examine an important question: are trademarks a source of market power, or, put differently, when are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars. However, by raising the question and presenting some scenarios that can provide answers, my hope is that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest to address this question, I explore the proposition that creative deception and the wealth-generating capacity of trademarks are unorthodox elements that actually contribute to allegations of …
Analysis Of Ship Clearance In The Maldives: Trade Facilitation Perspective, Zoona Ahmed
Analysis Of Ship Clearance In The Maldives: Trade Facilitation Perspective, Zoona Ahmed
World Maritime University Dissertations
No abstract provided.
Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs
Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs
Columbia Center on Sustainable Investment Staff Publications
Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important …
Antitrust Violations As Private Enforcement, Abby L. Timmons
Antitrust Violations As Private Enforcement, Abby L. Timmons
Notre Dame Law Review Reflection
On the whole, the dismantling of monopolies relies heavily on public enforcement. While the opportunity for private enforcement exists in the antitrust context, it is limited, as not all so-called "monopolies" commit antitrust violations. For example, where barriers to entry in a particular industry are high—such as in the case of phone carriers or airlines, both of which must build an infrastructure to support their business—sufficient competition may not exist to create options for the consumer. In situations like these, the federal government generally must step in to break up the monopoly. However, this interference happens infrequently, and these efforts …
Lane Violation: Why The Ncaa's Amateurism Rules Have Overstepped Antitrust Protection & How To Correct, Alexander Knuth
Lane Violation: Why The Ncaa's Amateurism Rules Have Overstepped Antitrust Protection & How To Correct, Alexander Knuth
Notre Dame Law Review Reflection
The NCAA is in the midst of an era that will define the future of collegiate athletics and determine how young people participate in sports for the foreseeable future. This Essay ultimately concludes that both the NCAA and its athletes would benefit from a system that allows for the exploitation of athletes' name, image, or likeness (NIL) rights while preserving the core educational and nonprofessional nature of college sports as a product. Currently the NCAA requires its athletes to maintain a very broadly defined amateur status to remain eligible for competition. The current amateurism definition states that athletes must forego …
What Do Chinese Clients Want?, Ji Li, Wei Zhang
What Do Chinese Clients Want?, Ji Li, Wei Zhang
Research Collection Yong Pung How School Of Law
The world’s two largest economies are locked in an escalating trade war, and caught in the crossfire are hundreds of Chinese multinational companies (MNCs) that have made substantial U.S. investments. Facing heightened legal risks in a less hospitable environment, the Chinese MNCs increasingly depend on local lawyers. Yet, their purchase of U.S. legal service, a topic of both practical and theoretical importance, has received little attention. To fill the gap, this article empirically investigates how Chinese companies in the United States select their U.S. legal counsel. By analyzing a unique dataset, the article finds that Chinese MNC managers uniformly prioritize …
Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser
Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser
St. Mary's Law Journal
Abstract forthcoming
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford
D. Daniel Sokol
The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
D. Daniel Sokol
Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol
D. Daniel Sokol
Antitrust is an important area of law and policy for most companies in the world. Having divergent rules across antitrust systems means that the same economic behavior may be treated differently depending on the jurisdiction, leading to disparate outcomes in which one jurisdiction finds illegal behavior (but the other does not) when the underlying behavior may be pro-competitive. This disparate set of outcomes creates a world in which the most stringent antitrust system may produce the global standard. As a result, if the antitrust rules applied are too rigid, they threaten to hurt consumers not merely in the jurisdiction where …
American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge
American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge
The Journal of Business, Entrepreneurship & the Law
In this note, I will argue that the current antitrust framework is misguided and based on erroneous legal and economic theories originating from the Chicago School. I will argue that the neoclassical approach is not only wrong when examining the legislative intent of Congress but is also in contravention with the policy goals and foundational principles of antitrust law. Furthermore, I will argue that the Chicago School’s narrow, outcome-based view of antitrust is ill-equipped to deal with the demands of the twenty-first century and especially with the online marketplace. The tech giants are unprecedented in their scale, and the online …
The Rule Of Reason, Herbert Hovenkamp
The Rule Of Reason, Herbert Hovenkamp
Florida Law Review
Antitrust’s rule of reason was born out of a thirty-year Supreme Court debate concerning the legality of multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood. This Article provides a litigation field guide for antitrust claims under the rule of reason—or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up to the point of summary judgment, the …
The New Doj: Lessons Learned From The Ticketmaster Live Nation Decision, Alan J. Meese
The New Doj: Lessons Learned From The Ticketmaster Live Nation Decision, Alan J. Meese
Alan J. Meese
No abstract provided.
The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips
The Future Of Dairy Cooperatives In The Modern Marketplace: Redeveloping The Capper-Volstead Act, Sarah K. Phillips
Dickinson Law Review (2017-Present)
Agriculture plays a fundamental role in the U.S. economy as a multibillion-dollar industry that feeds people all over the world. However, over the past decade, the dairy industry in particular has changed from a reliable sector of the greater agricultural industry into an unsettled, politically-charged, and fractured group. Dairy farmers’ consistently receiving low milk prices has facilitated this divide. Tired of being ignored and underpaid, dairy farmers are demanding change in the current dairy market structure.
Federal Milk Marketing Orders and a variety of statutes regulate the dairy industry, but the 1922 Capper-Volstead Act remains the most notable piece of …
Antitrust In Digital Markets, John M. Newman
Antitrust In Digital Markets, John M. Newman
Vanderbilt Law Review
Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.
But this pro-defendant position is deeply-and dangerously-flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power, conduct, and …
Amazon And Platform Antitrust, Ben Bloodstein
Amazon And Platform Antitrust, Ben Bloodstein
Fordham Law Review
With its decision in Ohio v. American Express, the U.S. Supreme Court for the first time embraced the recently developed, yet increasingly prolific, concept of the two-sided platform. Through advances in technology, platforms, which serve as intermediaries allowing two groups to transact, are increasingly ubiquitous, and many of the biggest tech companies operate in this fashion. Amazon Marketplace, for example, provides a platform for third-party vendors to sell directly to consumers through Amazon’s web and mobile interfaces. At the same time that platforms and their scholarship have evolved, a burgeoning antitrust movement has also developed which focuses on the …
Ecosystem Competition And The Antitrust Laws, Daniel A. Crane
Ecosystem Competition And The Antitrust Laws, Daniel A. Crane
Articles
Conventional antitrust norms analyze market power—as a stepping stone to anticompetitive effects and, hence, prohibited conduct—from the perspective of product substitutability. Two goods or services are said to compete with one another when they are reasonably interchangeable from the perspective of consumers, or to put it in more formal economic terms, when there is cross-elasticity of demand between them. Conversely, when two goods or services are not reasonably interchangeable, they are not horizontally related and are said not to compete with one another. Since a concern over horizontal agreements and horizontal effects dominate antitrust—courts even analyze vertical agreement or merger …
Table Of Contents, Seattle University Law Review
Table Of Contents, Seattle University Law Review
Seattle University Law Review
No abstract provided.
Wickard Through An Antitrust Lens, Alan J. Meese
The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese
The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese
Alan J. Meese
Transaction cost economics ("TCE") has radically altered industrial organization's explanation for so-called "non-standard contracts, "including "exclusionary" agreements that exclude rivals from access to inputs or customers. According to TCE, such integration usually reduces transaction costs without producing anticompetitive harm. TCE has accordingly exercised growing influence over antitrust doctrine, with courts invoking TCE's teachings to justify revision of some doctrines once hostile to such contracts. Still, old habits die hard, even for courts of increasing economic sophistication. This Article critiques one such habit, namely, courts'continuing claim that firms use market or monopoly power to impose exclusionary contracts on unwilling trading partners. …
Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese
Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese
Alan J. Meese
No abstract provided.
Standard Oil As Lochner's Trojan Horse, Alan J. Meese
Standard Oil As Lochner's Trojan Horse, Alan J. Meese
Alan J. Meese
No abstract provided.
Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese
Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese
Alan J. Meese
The last few decades have witnessed a scientific revolution in the field of industrial organization in the form of transaction cost economics (TCE). This revolution has radically altered economists’ understanding and interpretation of both partial and complete economic integration. Not surprisingly, this sea change has substantially influenced antitrust law and policy, impelling the Supreme Court to reverse or greatly modify various precedents.
This essay supplements the received historiography of the TCE revolution. It contends that Robert Bork played a hitherto underappreciated role in that revolution. In particular, the essay contends that in 1966, before the official onset of the transaction …