Law Commons^™

Slides: Lower Arkansas Valley Super Ditch Company, Inc.: Water Leasing Program, Peter Nichols

Evolving Regional Frameworks for Ag-to-Urban Water Transfers (December 11)

Presenter: Peter Nichols, General Counsel of the Lower Arkansas Valley “Super Ditch” Company, Trout, Raley, Montano, Witwer & Freeman PC, Colorado

33 slides

Toward A Unified Theory Of Access To Local Telephone Systems, Daniel F. Spulber, Christopher S. Yoo

All Faculty Scholarship

One of the most distinctive developments in telecommunications policy over the past few decades has been the increasingly broad array of access requirements regulatory authorities have imposed on local telephone providers. In so doing, policymakers did not fully consider whether the justifications for regulating telecommunications remained valid. They also allowed each access regime to be governed by its own pricing methodology and set access prices in a way that treated each network component as if it existed in isolation. The result was a regulatory regime that was internally inconsistent, vulnerable to regulatory arbitrage, and unable to capture the interactions among …

Essential Facilities And Trinko: Should Antitrust And Regulation Be Combined?, Timothy J. Brennan

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The Supreme Court's 2004 decision in Trinko represented a radical change from prior doctrine ensuring that antitrust laws applied in regulated industries. The change resulted from a failure to appreciate that regulation and antitrust can be complements. Regulation can boost the value of antitrust by creating incentives to refuse to deal in order to reap monopoly profit otherwise proscribed by regulation. Ironically, the essential facilities doctrine rejected by the Trinko court and the Trinko decision …

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

All Faculty Scholarship

On April 18-19, 2008, the University of Pennsylvania Law School hosted a landmark conference on “The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective.” This conference was the first major event for Penn’s newly established Center for Technology, Innovation, and Competition, a research institute committed to promoting basic research into foundational frameworks that will shape the way policymakers think about technology-related issues in the future. The breakup of AT&T represents an ideal starting point for reexamining the major themes of telecommunications policy that have emerged over the past quarter century. The conference featured a keynote address by …

Una Comparazione Tra Le Reti Di Amministratori Nelle Principali Società Quotate In Italia, Francia E Gran Bretagna (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo, Enrico Gagliardi

Paolo Santella

No abstract provided.

Una Comparazione Tra Le Reti Di Amministratori Nelle Principali Società Quotate In Italia, Francia E Gran Bretagna (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo, Enrico Gagliardi

Carlo Drago

No abstract provided.

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Carlo Drago

No abstract provided.

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Paolo Santella

No abstract provided.

Una Comparazione Tra Le Reti Di Amministratori Nelle Principali Societa Quotate In Italia, Francia E Gran Bretagna, Paolo Santella, Carlo Drago, Andrea Polo, Enrico Gagliardi

Carlo Drago

The purpose of the present paper is to contribute to the empirical literature on country interlocks by illustrating and analysing the interlocking directorships in the first 40 Italian, French and British Blue Chips as of December 2007 (Italy)/March 2008 (France and uk). The theoretical literature identify two possible explanations for interlocking directorships, on the one hand the collusion among players in the same market or in general among enterprises that have business relations among themselves; on the other hand the interest for enterprises to have on their boards bankers, suppliers, and clients so as to reduce information asymmetries. Our findings …

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

All Faculty Scholarship

The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that …

'Dynamic Competition' Does Not Excuse Monopolization, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

This comment on a forthcoming article by Keith Hylton and David Evans explains why considerations of "dynamic competition" do not argue against antitrust enforcement. While the prospect of achieving monopoly may foster innovation, that observation misleads as to appropriate antitrust policy unless qualified by the observation that the push of competition generally spurs innovation more than the pull of monopoly. Moreover, the longstanding doctrinal rule that mere monopoly pricing is not illegal should not be read as demonstrating that antitrust law values monopolies for their role in promoting innovation.

Schumpeterian Competition And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Joseph Schumpeter's vision of competition saw it as a destructive process in which effort, assets and fortunes were continuously destroyed by innovation. One possible implication is that antitrust's attention on short-run price and output issues is myopic: what seems at first glance to be a monopolistic exclusionary practice might really be an innovative enterprise with enormous payoffs in the long run. While this may be the case, three qualifications are critical. First, one must not confuse the prospect of innovation with the scope of the intellectual property laws; their excesses and special interest capture cast serious doubt on the proposition …

Luxury Markets, Antitrust, And Intellectual Property: An Introduction, Ben Kleinman-Green

Ben Kleinman-Green

In this paper I look at markets for luxury goods and begin exploring the interplay among trademark law, antitrust law, luxury goods, and copies of luxuries. In the absence of empirical data and economic theories directly on point, I informally extend a model of luxury markets to account for copies of luxury goods and then look to trademark law cases for indications of how courts might evaluate luxury markets in an antitrust context.

Why The Filed Rate Doctrine Should Not Imply Blanket Judicial Deference To Regulatory Agencies, Jim Rossi

Vanderbilt Law School Faculty Publications

The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility …

The Neoclassical Crisis In U.S. Competition Policy, 1890-1960, Herbert Hovenkamp

Herbert Hovenkamp

ABSTRACT The development of marginalist, or neoclassical, economics led to a fifty-year long crisis in competition policy. Given an industrial structure with sufficient fixed costs, competition always became "ruinous," forcing firms to cut prices to marginal cost without sufficient revenue remaining to pay off investment. Early neoclassicists such as Alfred Marshall were not able to solve this problem. As a result many early twentieth century economists were hostile toward the antitrust laws. The ruinous competition debate came to an abrupt end in the early 1930's, when economists Joan Robinson in Great Britain and particularly Edward Chamberlin in the United States …

Follow-On State Actions Based On The Ftc’S Enforcement Of Section 5, Justin Hakala

Justin Hakala

The Federal Trade Commission has historically been given a degree of deference by the courts, particularly with regard to its construction of section 5 of the Federal Trade Commission Act. This deference is supported so long as the section 5 actions are solely within the province of a responsible Commission charged with the protection of consumers and competition. But what if those enforcement actions trickled down to state Little FTC Acts, which incorporate section 5 jurisprudence and confer private actions for treble damages on parties that previously had to work within the strict confines of the antitrust statutes? That concern, …

The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust law's Walker Process doctrine permits a patent infringement defendant to show that an improperly maintained infringement action constitutes unlawful monopolization or an unlawful attempt to monopolize. The infringement defendant must show both that the lawsuit is improper, which establishes the conduct portion of the violation and generally satisfies tort law requirements, and also that the structural prerequisites for the monopolization offense are present. The doctrine also applies to non-patent infringement actions and has been applied by the Supreme Court to copyright infringement actions. Walker Process itself somewhat loosely derives from the Supreme Court's Noerr-Pennington line of cases holding that …

Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande

All Faculty Scholarship

This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

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

Thomas A. Lambert

In Leegin Creative Leather Prods., Inc. v. PSKS, Inc., decided in 2007, the U.S. Supreme Court overruled its 1911 precedent declaring vertical minimum resale price maintenance (RPM) to be per se illegal. The Leegin Court held that the practice should instead be examined on a case-by-case basis under antitrust's rule of reason. The Court further exhorted the lower courts to craft a "structured" rule of reason for evaluating RPM. 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) …

The Viability Of Antitrust Price Squeeze Claims, Herbert Hovenkamp

Herbert Hovenkamp

ABSTRACT 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 …

Will Globalization Be The Death Knell For The Corporate Attorney-Client Privilege In The U.S.? An Opportunity To Re-Examine The Privilege As It Applies To In-House Counsel, Lawton P. Cummings

Lawton P Cummings

Increasingly, enforcement authorities from around the world are engaging in multinational cooperation to investigate and prosecute companies suspected of competition law violations. While corporate investigations have globalized, privilege rules remain localized. While the U.S. recognizes the attorney-client privilege for communications with in-house counsel, several jurisdictions that cooperate with the U.S. in multi-national investigations do not recognize the privilege for such communications. This results in identical evidence receiving un-equal privilege status in parallel proceedings around the globe. Currently, the U.S. is more protective of communications with in-house counsel than many other jurisdictions, disadvantaging U.S. prosecuting authorities as well as civil plaintiffs …

Competition And Predation In The Airline Industry, Gustavo M A Pinto

Gustavo M A Pinto

New theories on predatory conduct argue that predatory pricing is not such a rare phenomenon as supported by the Chicago school. Strategic analysis conducted under a game theory prism have shown that there is more rationality in this type of behavior than earlier thought, and some scholars have even proposed the possibility of above cost predatory pricing strategies. The airline industry has been particularly susceptible to the discussion of these “Post-Chicago” theories. Courts and agencies on both sides of the Atlantic have shown an increased willingness to investigate above cost predatory pricing claims in this industry. This article aims at …

The Reverse-Robin-Hood-Cross-Subsidy Hypothesis: Do Credit Card Systems Effectively Tax The Poor And Reward The Rich?, Steven Semeraro

Steven Semeraro

Robin Hood and his band of merry men infamously, if apocryphally, robbed from the rich and gave to the poor. Over the last decade, some economists have postulated that credit card companies do the opposite – forcing low-income cash customers to pay higher prices for retail goods that effectively fund the frequent flier miles and other rewards that go predominantly to affluent cardholders. Because the credit card systems prohibit surcharging, everyone pays the same price. But, these analysts reason, merchants inflate their prices across the board to cover the cost of credit card acceptance. While credit card customers are rewarded …

The Antitrust Economics (And Law) Of Surcharging Credit Card Transactions, Steven Semeraro

Steven Semeraro

When a customer uses a credit card, the merchant pays a small percentage of the purchase price to the bank that issued the card. This cost of card acceptance, known as the interchange fee, adds up to big money . . . really big. This year, the credit card companies anticipate that interchange fees will total $48 billion, an increase of nearly 300% since 2001. Merchants can do little to influence these fees, because credit cards are critical to their businesses and the systems’ rules prohibit surcharging. In recent years, commentators with growing levels of confidence have suggested that this …

Antitrust Systems: Searching Similarities Between East Asia And Chile, Críspulo Marmolejo

Críspulo Marmolejo

The study of Free Competition, Monopolies and Antitrust laws have a really important meaning for the developing of free markets in a global context. Free Competition is currently one of the main requirements to get the achievements of efficiency, transparency and dynamism in any market, especially in developing countries where these factors need to be considered as important instruments of economic growing and poverty decreasing. East Asia is an area that have been implemented several reforms structured upon the basis of free market, which it means a sustainable growing of GDP, opening to Foreign Direct Investment, protection of property rights …

World War 4.0: The Intel Antitrust Wars, Robert H. Lande

All Faculty Scholarship

This short piece gives an overview of antitrust actions filed around the world against Intel for allegedly undertaking anticompetitive actions in the market for X 86 PC chips.

The Effect Of 2005 Bankruptcy Reform On Credit Card Industry Profits And Prices, Michael N. Simkovic

Michael N Simkovic

The U.S. Bankruptcy code changed dramatically with the passage of The Bankruptcy Abuse Prevention and Consumer Protection Act Of 2005. This act increased the costs and decreased the benefits of bankruptcy to consumers. Supporters of the law claimed that it would benefit consumers as well as creditors, because reducing the losses faced by creditors would lower the cost of credit to consumers. Critics of the law depicted it as special interest legislation designed to profit credit card companies at the expense of consumers. This study tests whether the 2005 Bankruptcy Reform: (1) reduced the number of bankruptcies; (2) reduced credit …

Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp

All Faculty Scholarship

Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed …

Better Competition Advocacy, Maurice Stucke

Scholarly Works

Today's competition advocacy censures governmental restraints that diminish competition. But such advocacy glosses over four fundamental questions: First, what is competition? Second, what are the goals of a competition policy? Third, how does one achieve, if one can, the objectives of such desired competition? Fourth, how does one know if the economy is progressing toward these goals? This Article outlines the conventional wisdom underlying today's competition advocacy. It examines what is meant by competition, and what is being valued. It examines the goals of competition, as expressed by various governmental agencies, and the structural mechanisms that the government can provide …

The Italian Chamber Of Lords Sits On Listed Company Boards. An Empirical Analysis Of Italian Listed Company Boards From 1998 To 2006 - Presentation (Powerpoint Format), Paolo Santella, Carlo Drago, Andrea Polo

Carlo Drago

No abstract provided.