Law Commons^™

Vertical Restraints, Dealers With Power, And Antitrust Policy, Herbert J. Hovenkamp

All Faculty Scholarship

The Supreme Court’s Leegin decision has now brought the rule of reason to all purely vertical intrabrand distribution restraints. But the rule of reason does not mean per se legality and occasions for anticompetitive vertically imposed restraints may still arise. Of all those that have been suggested the most plausible are vertical restraints imposed at the behest of a powerful dealer or group (cartel) of dealers.

Although a vertical distribution restraint resembles a dealer cartel in that both limit intraband competition, a manufacturer restraining the distribution of its product shuns the excess dealer profits a dealer cartel would seek. Accordingly, …

From Energy Sector Inquiry To Recent Antitrust Decisions In European Energy Markets: Competition Law As A Means To Implement Energy Sector Regulation In Eu, Michael Diathesopoulos

Michael Diathesopoulos

This paper presents the conceptual path followed by European Union, European Commission and European Competition Network, after the Energy Sector Inquiry (2007) towards the realisation of the objective of an Energy Internal Market, fully functional and open to competition. Firstly, we examine the findings of Sector Inquiry and then we describe how the Third Energy Package - that followed - tried to address the issues highlighted by the Inquiry and how Third Energy Package introduces a promising but complex system, in order to develop sector rules. Following the above, we proceed to a brief but close examination of 10 recent …

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

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The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that courts …

The Insurance Industry's Antitrust Immunity, Herbert J. Hovenkamp

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The 1945 McCarran-Ferguson Act provides that federal legislation generally, including the antitrust laws, is “applicable to the business of insurance [only] to the extent that such business is not regulated by State law.” The statute was enacted after United States v. South Eastern Underwriters Assn. (1944), held that insurance transactions were “interstate commerce” and thus subject to the antitrust laws. That case had in turn undermined the traditional view expressed in Paul v. Virginia (1868), that insurance was not interstate commerce, but strictly local transactions. The South Eastern case followed in turn upon the Supreme Court's decision in Wickard v. …

Tying Arrangements And Antitrust Harm, Erik Hovenkamp, Herbert J. Hovenkamp

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A tying arrangement is a seller’s requirement that a customer may purchase its “tying” product only by taking its “tied” product. In a variable proportion tie the purchaser can vary the amount of the tied product. For example, a customer might purchase a single printer, but either a contract or technological design requires the purchase of varying numbers of printer cartridges from the same manufacturer.

Such arrangements are widely considered to be price discrimination devices, but their economic effects have been controversial. Tying has been attacked on the theory that price discrimination of this sort reduces consumer welfare. We show …

The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp

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During the administration of President George W. Bush, the Antitrust Division was not enthusiastic about use of §2 of the Sherman Act to pursue anticompetitive single-firm conduct. Indeed, its most prominent contribution on the issue was the Antitrust Division’s §2 Report, which the Obama Antitrust Division withdrew only eight months after it was issued.This withdrawal was entirely in keeping with candidate Obama’s repeated promises to reinvigorate antitrust enforcement.

This essay analyzes the current state of antitrust and makes recommendations concerning structures and practices where increased §2 enforcement is warranted and those where it is not. Wise use of enforcement dollars …

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier …