Law Commons^™

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Note: Trust In The Digital Marketplace: Amazon, Third-Party Sellers, And Informational Fiduciaries, Jesse-Paul Crane

Notre Dame Journal on Emerging Technologies

The rise of e-commerce has created a number of online marketplaces where digital platforms connect buyers and sellers. Consumers use platforms like Amazon, Etsy, Instacart, Uber, Lyft, and Airbnb to purchase goods and services from third parties while the platform itself takes a fee for operating the marketplace. Online platforms are not the only businesses that use such a “two-sided” marketplace model. The Supreme Court recently addressed antitrust concerns in this type of marketplace in Ohio v. Am. Express Co. 1 Two-sided markets invoke a number of novel legal issues that impact both those who buy and sell over them, …

The Bipartisan Consensus On Big Tech, Roger P. Alford

Journal Articles

This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive …

Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen

Notre Dame Law Review

One of the most misunderstood and anticompetitive business behaviors in today’s economy is “product hopping,” which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the “improved” branded product.

The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it …

Joe Bauer Presented "Enforcement Issues Under American Antitrust Laws" At The University Of Tilburg (Holland) Center For Law And Economics On December 19, 2013, Joseph P. Bauer

Faculty Lectures and Presentations

Joe Bauer presented a seminar at the University of Tilburg (Holland) Center for Law and Economics on December 19. His topic was Enforcement Issues under American Antitrust Laws. View PowerPoint slides of lecture by clicking pdf link.

The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer

Journal Articles

The extra-territorial reach of the antitrust laws is subject to multiple constraints, including the Commerce Clause of the constitution, the text of the antitrust statutes, and a variety of policy considerations. At the beginning of the twentieth century, in the American Banana case, the Supreme Court severely limited the application of the antitrust laws to anti-competitive behavior beyond our shores. The next eighty years saw an expansion of their extra-territorial reach, by including within their coverage a range of foreign conduct which had domestic effects. However, confusion among the lower courts as to the extent of this coverage, as well …

Introduction: Expansion And Contraction In Monopolization Law, Michael S. Gal, Spencer Weber Waller, Avishalom Tor

Journal Articles

This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization …

Unilateral, Anticompetitive Acquisitions Of Dominance Or Monopoly Power, Avishalom Tor

Journal Articles

The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to monopolizing or an abuse of dominant position. Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited …

The Curt Flood Act Of 1998: A Hollow Gesture After All These Years?, Edmund P. Edmonds

Journal Articles

This article discusses the Curt Flood Act of 1998 and explores the nonstatutory labor exemption the Supreme Court has applied to professional sports leagues. It also explores the likely impact of the Curt Flood Act on the rights of players or managers to use antitrust laws effectively against one another.

Antitrust And Sports: Must Competition On The Field Displace Competition In The Market?, Joseph P. Bauer

Journal Articles

A casual glance at the daily newspapers would suggest that athletes and sports teams spend almost as much time squaring off in the courts as they do on the playing fields. Professional football players complain that the teams for which they play and the National Football League have conspired to impose illegal restraints on their ability to offer their services to other teams. A baseball team went to court to challenge the decision by the now-deposed Commissioner of Baseball to shift it from one division to another. College players, coaches, and universities all contend that various rules imposed by the …

The Extraterritorial Application Of Antitrust Laws: The United States And European Community Approaches, Roger P. Alford

Journal Articles

This Arti­cle compares the differing approaches of the United States and the European Community as they wrestle with the question of how to regulate foreign anticompetitive activity. More specifically, this Arti­cle highlights the distinctive features of the U.S. "effects doctrine" and the European Community's "implementation approach" and ana­lyzes the differences that exist between the two systems. Only the U.S. doctrine openly provides for the consideration of international comity concerns, but both approaches have been used liberally to assert jurisdiction over foreign defendants. Part II of this Article pro­vides a background to the subject by briefly outlining the traditional bases of …

Antitrust Exemptions For Private Requests For Governmental Action: A Critical Analysis Of The Noerr-Pennington Doctrine, Earl W. Kintner, Joseph P. Bauer

Journal Articles

Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. …

A Simplified Approach To Tying Arrangements: A Legal And Economic Analysis, Joseph P. Bauer

Journal Articles

Few types of antitrust conduct have received as much treatment from the Supreme Court as tying arrangements. This practice, which is unlawful per se when certain prerequisites are met, may be defined as an agreement by a party to sell one product [the tying product] but only on the condition that the buyer also purchases different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Notwithstanding this extensive Supreme Court attention, there is as much heat as light in this area. The doctrine that has developed is often unpredictable and frequently …

Challenging Conglomerate Mergers Under Section 7 Of The Clayton Act: Today's Law And Tomorrow's Legislation, Joseph P. Bauer

Journal Articles

Federal antitrust enforcement has undergone a radical transformation in the past decade. The change in enforcement patterns has been most noticeable in the area of merger law. The magnitude of this shift, the confusion that has characterized the case law accompanying it, and the increasing prominence of conglomerate mergers as a means to corporate expansion form the basis for this article. The primary source for regulation of mergers under the antitrust laws is section 7 of the Clayton Act, which proscribes those corporate acquisitions “where in any line of commerce in any section of the country, the effect of such …

Professional Activities And The Antitrust Laws, Joseph P. Bauer

Journal Articles

Few subjects in international law raise such incorrigible conflicts of interest as the exercise of extraterritorial jurisdiction in the antitrust context. As one commentator asked with respect to a U.S. court's assertion of jurisdiction over British defendants, "[h]ow could American law, how could an American judgment applying American law possibly vary the rights and obligations created by an English contract to be performed outside the United States?" Indeed, international law is based on the notion that a state occupies a definite territory, within which it normally exercises exclusive jurisdiction.

Yet this traditional doctrine of "territorial jurisdiction" has slowly given way …

The Moving Picture Anti-Trust Cases, Thomas F. Broden

Journal Articles

United States v. Paramount Pictures, Inc., et al. involves a consideration by the Supreme Court of The United States of the guilt of a vast segment of the nation-wide movie industry of a district court conviction of re- straining and monopolizing interstate trade in the distribution and exhibition of films. Not only were the violations of the Sherman Act by the largest moving picture film distributors of the country in issue, but a more difficult problem, that of what to do about the violations, was presented to the Supreme Court for its consideration.

From a reading of the majority opinion …