Law Commons^™

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

Every passing month of high interest rates increases the chances of massive job cuts and a devastating recession that still might come if the Fed maintains interest rates at their current levels for long enough. Recessions impose not only widespread short-term pain but also lifelong harms for many, as vulnerable populations and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the sacrifice that ensues. We call this inflation-fighting paradigm monetary primacy. …

A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun

Faculty Scholarship

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …

Brandeisian Banking, Kathryn Judge

Faculty Scholarship

Banking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the …

Caging The Bored Ape: How The Ftc's Expanded Anti-Monopoly Authority Can Tame "Nfts" For Web 3.0, J. Scott Colesanti

William & Mary Business Law Review

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start …

The Summary Judgment Revolution That Wasn't, Jonathan Remy Nash, D. Daniel Sokol

William & Mary Law Review

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Impediments To Renewed And Reinvigorated Antitrust Enforcement, Edward D. Cavanagh

William & Mary Business Law Review

Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.

While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

The Case For Green Product Fixing: Reconciling Antitrust Law With Self-Regulation To Combat Climate Change, Peter Brigham

Emory Law Journal

As corporations continue to prioritize environmental, social, and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular, cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own for fear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general.

This Comment uses the term …

The Constitutional Moment That Wasn't: 1912-1914 And The Meaning Of The Sherman Act, Alan J. Meese

Popular Media

No abstract provided.

Hair On Fire: Why Companies Are Less Likely To Feel The Burn Under The Doj’S Newest Change To Antitrust Enforcement, Caroline M. Whitener

Pepperdine Law Review

In July 2019, the Department of Justice (DOJ) Antitrust Division announced that in an effort to help companies avoid “‘hair on fire’ experiences,” Division prosecutors are now, despite previous hesitancy, encouraged to offer prosecution alternatives in the form of deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to corporate antitrust violators. Alternative prosecution agreements, such as DPAs and NPAs, are contracts between the government and corporate wrongdoers that allow companies to delay or entirely avoid prosecution, provided the company adheres to the contract terms. Additionally, as a part of the policy change, DOJ antitrust prosecutors must evaluate a corporation’s preexisting …

Antitrust Enforcement And Market Power In The Digital Age: Is Your Digital Assistant Devious?, Maurice Stucke, Ariel Ezrachi

Book Chapters

No abstract provided.

Atomistic Antitrust, Robin C. Feldman, Mark A. Lemley

William & Mary Law Review

Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive.

That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market.

The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on …

J Mich Dent Assoc April 2022

The Journal of the Michigan Dental Association

Monthly, The Journal of the Michigan Dental Association brings news, information, and feature articles to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this April 2022 issue, the reader will find the following original content:

• A cover feature “Protect Your Patients and Yourself: The Complete and Honest Medical History”
• A feature article “The Foundation for Dental Care: The Patient Interview and Dental/Medical Health History”
• A 10-Minute EBD “The Preferred Analgesia for Orthodontic Tooth Movement: Acetaminophen or NSAIDs?”
• News you need: an Editorial, a "Reminder about Antitrust Law", and regular department articles, …

Old Macdonald Had A Trust: How Market Consolidation In The Agricultural Industry, Spurred On By A Lack Of Antitrust Law Enforcement, Is Destroying Small Agricultural Producers, Cody Mccracken

William & Mary Business Law Review

The U.S. agricultural industry is controlled by a handful of large corporations. Unprecedented levels of market consolidation has created a power disparity, where controlling corporations alone shape markets, often to the disadvantage of small agricultural producers. A primary, and often overlooked, cause of this consolidationdriven bargaining disadvantage, and its resulting harm, can be found in the lacking enforcement of the nation’s antitrust laws. Faulty metrics and lax legal interpretations employed by regulatory agencies have permitted large corporations to grab control of nearly every sector of the industry. From the seeds farmers plant to the markets they sell their goods into; …

A Machete For The Patent Thicket: Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …

New Copyright Stories: Clearing The Way For Fair Wages And Equitable Working Conditions In American Theater And Other Creative Industries, Jessica Silbey

Faculty Scholarship

We need some new intellectual property stories. By stories, I don’t mean entertaining fictions. I mean instead accounts or explanations that make sense of the world as it is lived by everyday people. Most of our relevant intellectual property laws were forged in the mid-twentieth century and have failed to keep pace with the transformations in creative and innovative practices of the twentyfirst. Being out-of-sync or failing to recognize broader existing stakeholders means laws are poorly aligned with on-the-ground realities and are out-of-touch with values and interests of the people laws serve. The Article at the center of this Symposium …

Treble, Treble Toil And Trouble: The New Per Se Rule As A Protection Against The Curse Of The "Supreme Evil", Seth Konopasek

William & Mary Business Law Review

The Supreme Court has called collusion between firms the “supreme evil” of antitrust. Despite public and private enforcement efforts, collusive firms and the cartels they form cost American consumers billions of dollars a year and undermine the virtues of our free market economy. The Chicago School theory of antitrust enforcement, which has dominated antitrust scholarship, vehemently disapproves of private antitrust actions that enable plaintiffs to recover treble damages. Recent scholarship, however, has rejected the Chicago School’s concerns of overdeterrence and embraced the treble damages remedy. This Note follows the recent scholarship and proposes the New Per Se Rule, which would …

J Mich Dent Assoc May 2021

The Journal of the Michigan Dental Association

Every month, The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this issue, the reader will find the following original content:

• A cover story “3D Printing in Dentistry: Concepts, Technologies, and Applications”.
• An interview with new MDA President Dr. Mike Maihofer.
• The MDA award-winners for 2021.
• A feature article, “Things to Know about the New e-Prescribing Law”.
• News you need, Editorial and regular department articles on MDA Foundation activities, Dentistry and the Law, Staff Matters, and …

Interstate Burdens And Antitrust Federalism: A Reexamination Of Parker Immunity, John Sack

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court has largely immunized state action from Federal antitrust enforcement. However, this carte blanche immunity, while founded on federalism grounds, runs counter to a number of constitutional principles, and too easily allows states to impose costs on other states while reaping all the benefits of anti-competitive policies. While the Supreme Court has only scantily discussed revisiting this immunity, academics and the Federal Trade Commission have largely criticized the doctrine. The Sherman Act, described as taking on a constitutional standing, should seek to form a more perfect economic union, and our understanding of State Action Immunity should strive towards …

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …

Labor Organization In Ride-Sharing—Unionization Or Cartelization?, Mark Anderson, Max Huffman

Vanderbilt Journal of Entertainment & Technology Law

The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm—the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …

Can The Federal Trade Commission Use Rulemaking To Change Antitrust Law?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Lina Khan, the new Chair of the FTC, proposes to use notice and comment rulemaking to make major changes in antitrust law by declaring many practices to be “unfair methods of competition” within the meaning of that term in section five of the FTC Act. She has the strong backing of President Biden and her Democrat colleagues. That raises two questions. Does the FTC have the power to use the notice and comment process to implement Section five? If it has that power, can it use the rulemaking process to make the major changes in antitrust law that Chair Khan …

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large body of research in economics and law suggesting that the legal origin of a country – that is, whether its legal regime is based on English common law or French, German, or Nordic civil law – profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly …

Antitrust Changeup: How A Single Antitrust Reform Could Be A Home Run For Minor League Baseball Players, Jeremy Ulm

Dickinson Law Review (2017-Present)

In 1890, Congress passed the Sherman Antitrust Act to protect competition in the marketplace. Federal antitrust law has developed to prevent businesses from exerting unfair power on their employees and customers. Specifically, the Sherman Act prevents competitors from reaching unreasonable agreements amongst themselves and from monopolizing markets. However, not all industries have these protections.

Historically, federal antitrust law has not governed the “Business of Baseball.” The Supreme Court had the opportunity to apply antitrust law to baseball in Federal Baseball Club, Incorporated v. National League of Professional Baseball Clubs; however, the Court held that the Business of Baseball was not …

Behavioral Lessons For Antitrust Enforcement, Avishalom Tor

Faculty Lectures and Presentations

These are lecture slides to accompany a virtual lecture.

Avishalom Tor, professor and director of the Research Program on Law and Market Behavior at Notre Dame Law School, delivered this lecture to lawyers and economists of the Department of Justice’s antitrust division in Washington D.C. and throughout the country in the summer of 2020.

The lecture provides a systematic review of the lessons empirical behavioral findings offer to antitrust law, enforcement, and policy. Professor Tor introduces key findings of behavioral antitrust and explores their implications for doctrine and enforcement across the field, in areas ranging from horizontal restraints, through …

Why It's A Bad Idea To Let A Few Tech Companies Monopolize Our Data, Maurice Stucke

Book Chapters

No abstract provided.

Artificial Stupidity, Clark D. Asay

William & Mary Law Review

Artificial intelligence is everywhere. And yet, the experts tell us, it is not yet actually anywhere. This is because we are yet to achieve artificial general intelligence, or artificially intelligent systems that are capable of thinking for themselves and adapting to their circumstances. Instead, all the AI hype—and it is constant—concerns narrower, weaker forms of artificial intelligence, which are confined to performing specific, narrow tasks. The promise of true artificial general intelligence thus remains elusive. Artificial stupidity reigns supreme.

What is the best set of policies to achieve more general, stronger forms of artificial intelligence? Surprisingly, scholars have paid little …