Law Commons^™

Procompetitive Justifications In Antitrust Law, John M. Newman

Articles

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an "open question," even an "absolute mystery." Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers …

Antitrust In Digital Markets, John M. Newman

Articles

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, …

The Antitrust Jurisprudence Of Neil Gorsuch, John M. Newman

Articles

In 2017, the U.S. Senate confirmed Neil M. Gorsuch's nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch's primary area of expertise is antitrust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions.

His unique expertise will likely situate Gorsuch as one of the Court's leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. …

Antitrust In Zero-Price Markets: Applications, John M. Newman

Articles

"Free" products have exploded in popularity along with widespread Internet adoption-but many of them are not truly free. Customers often trade their attention or personal information to access zero-price products. This exchange dynamic brings zero-price markets within the scope of antitrust law. But despite the critical role that such markets now play in modern economies, the antitrust enterprise has largely failed to account for their unique attributes.

In response, this Article undertakes two primary tasks. The first is to address particular areas of current antitrust doctrine that require revision or reinterpretation in the face of zero prices. Topics addressed include …

Antitrust In Zero-Price Markets: Foundations, John M. Newman

Articles

"Zero-price markets," wherein firms set the price of their goods or services at so, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, travel booking, navigation and mapping systems, and myriad other goods and services are now widely distributed at zero prices. But despite the exponential increase in the volume of zero-price products being consumed, antitrust institutions and analysts have failed to provide an adequate response to markets without prices.

Modern antitrust law is firmly grounded in neoclassical economics, which is in turn centered on price theory. Steeped in price theory, preeminent antitrust …

Personal Jurisdiction And Choice Of Law In The Cloud, Damon C. Andrews, John M. Newman

Articles

Cloud computing has revolutionized how society interacts with, and via, technology. Though some early detractors criticized the "cloud" as being nothing more than an empty industry buzzword, we contend that by dovetailing communications and calculating processes for the first time in history, cloud computing is--both practically and legally-a shift in prevailing paradigms. As a practical matter, the cloud brings with it a previously undreamt-of sense of location independence for both suppliers and consumers. And legally, the shift toward deploying computing ability as a service, rather than as a product, represents an evolution to a contractual foundation for interacting.

Already, substantive …

Anticompetitive Product Design In The New Economy, John M. Newman

Articles

Claims alleging anticompetitive product design and redesign lie at the very core of one of antitrust law's most challenging dilemmas: the intersection between innovation and regulation, invention and intervention. For over three decades, courts and scholars have struggled to determine the proper analytical framework within which to address such cases. Meanwhile, the very industries in which challenged conduct occurs have been undergoing fundamental changes.

As demonstrated by the ongoing and recent antitrust litigation involving high technology firms Apple, Intel, and Microsoft, distinctive features characterize most product markets in what has been called the 'New Economy'"--and what increasingly has become simply …

Expanding Definition Of Monopoly Leveraging, Eun K. Chang

University of Miami Business Law Review

No abstract provided.

Tfosorcim And Cromiftos: Why High-Technology Antitrust Inquiry Is Backwards And Inside-Out, Jon Polenberg

University of Miami Law Review

No abstract provided.

Icann And Antitrust, A. Michael Froomkin

Articles

National identification ("ID") cards appear increasingly inevitable. National ID cards have the potential to be repressive and privacy destroying, but it is also possible to design a system that captures more benefits than costs. Because the United States currently lacks a single, reliable credential, private businesses have trouble authenticating their customers and matching data among distributed databases. This Article argues that the desire for reliable ID creates a window of opportunity for the federal government to strike a bargain: offer private businesses the use of a reliable credential in the form of a national ID card, on the condition that …

Putting The Lid On State-Sanctioned Cartels: Why The State Action Doctrine In Its Current Form Should Become A Remnant Of The Past, Aaron C. Stine, Eric D. Gorman

University of Miami Law Review

No abstract provided.

Airline Antitrust: Getting Past The Oligopoly Problem, Eli A. Friedman

University of Miami Business Law Review

No abstract provided.

Reflections On The Fcc's Recent Approach To Structural Regulation Of The Electronic Mass Media, Lili Levi

Articles

No abstract provided.

The Prescriptive Jurisdictional Reach Of U.S. Antitrust Law: Judge Learned Hand's Requirement Of A "Substantive Anticompetitive Effect", Michael F. Kelley

University of Miami Inter-American Law Review

No abstract provided.

The Antitrust Implications Of Professional Sports Leagues Revisited: Emerging Trends In The Modern Era, Thane N. Rosenbaum

University of Miami Law Review

No abstract provided.

Monfort Of Colorado, Inc. V. Cargill, Inc.: Standing To Enjoin Horizontal Mergers By Competing Companies, Michelle Cuervo Donaj

University of Miami Law Review

No abstract provided.

Local Government Practices And The Antitrust Merits, Mark R. Lee

University of Miami Law Review

No abstract provided.

Ncaa V. Board Of Regents: Supreme Court Intercepts Per Se Rule And Rule Of Reason, Peter W. Bellas

University of Miami Law Review

No abstract provided.

American Society Of Mechanical Engineers, Inc. V. Hydrolevel Corp.:, Sandra P. Greenblatt

University of Miami Law Review

No abstract provided.

Selection, Use, And Pay Of An Economist In An Antitrust Case, Stephen E. Nagin

University of Miami Law Review

In this practice-oriented article the author examines the use of economic experts in antitrust cases. He analyzes several factors that influence the selection of an economist such as the various schools of economic theory related to antitrust, the time commitments counsel can expect to receive from an expert, the demands of the case, and costs. The article reviews several kinds of payment agreements and recommends which to choose, based on the individual case. The author explains ways to use the economist from before the filing of a complaint through cross-examination of the adversary's expert. Also examining counsel's preparation of the …