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Articles 1 - 15 of 15
Full-Text Articles in Law
American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge
American Oligarchy: How The Enfeebling Of Antitrust Law Corrodes The Republic, Zachariah Foge
The Journal of Business, Entrepreneurship & the Law
In this note, I will argue that the current antitrust framework is misguided and based on erroneous legal and economic theories originating from the Chicago School. I will argue that the neoclassical approach is not only wrong when examining the legislative intent of Congress but is also in contravention with the policy goals and foundational principles of antitrust law. Furthermore, I will argue that the Chicago School’s narrow, outcome-based view of antitrust is ill-equipped to deal with the demands of the twenty-first century and especially with the online marketplace. The tech giants are unprecedented in their scale, and the online …
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Veronica Root
Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.
The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …
Accommodating Capital And Policing Labor: Antitrust In The Two Gilded Ages, Sandeep Vaheesan
Accommodating Capital And Policing Labor: Antitrust In The Two Gilded Ages, Sandeep Vaheesan
Maryland Law Review
In enacting the antitrust laws, Congress sought to prevent big businesses from maintaining and augmenting their power through collusion, mergers, and exclusionary and predatory practices and also aimed to preserve the ability of workers to act in concert. At times, the antitrust laws have benefited ordinary Americans. Antitrust achievements include the restructuring of the oil industry in 1911, the creation of competitive market structures in the mid-twentieth century, and the termination of AT&T’s telecommunications monopoly in 1984.
Yet, the history of antitrust in the United States is not one of uninterrupted successes. Over two forty-year periods, the executive branch and …
Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton
Georgetown Law Faculty Publications and Other Works
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop
Georgetown Law Faculty Publications and Other Works
This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear …
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
Pepperdine Law Review
Everyone involved in the business of major college athletics, except the athletes, receives compensation based on a free market system. The National Collegiate Athletic Association’s (NCAA) cap on athlete compensation violates antitrust law, and athletes should be allowed to earn their free market value as everyone else does in this country. This Article provides a detailed approach to compensating college athletes under a free market model, which includes a salary cap, the terms of a proposed standard player’s contract, a discussion of who can represent players, and payment simulations for football and basketball teams. A free market approach would not …
A Knowledge Theory Of Tacit Agreement, Wentong Zheng
A Knowledge Theory Of Tacit Agreement, Wentong Zheng
UF Law Faculty Publications
A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another's conspiratory intent. This approach to tacit agreement is more …
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Nancy Rose, Steven Salop, Fiona Scott Morton
Articles in Law Reviews & Other Academic Journals
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray
Loyola of Los Angeles International and Comparative Law Review
No abstract provided.
Antitrust And Democracy, Spencer Weber Waller
Antitrust And Democracy, Spencer Weber Waller
Faculty Publications & Other Works
Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under …
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
The Blue Devil's In The Details: How A Free Market Approach To Compensating College Athletes Would Work, David A. Grenardo
Faculty Articles
Everyone involved in the business of major college athletics, except the athletes, receives compensation based on a free market system. The National Collegiate Athletic Association's (NCAA) cap on athlete compensation violates antitrust law, and athletes should be allowed to earn their free market value as everyone else does in this country. This Article provides a detailed approach to compensating college athletes under a free market model, which includes a salary cap, the terms of a proposed standard player 's contract, a discussion of who can represent players, and payment simulations for football and basketball teams. A free market approach would …
Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton
Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton
Faculty Scholarship
Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose
Five Principles For Vertical Merger Enforcement Policy, Jonathan Baker, Steven Salop, Fiona M. Scott Morton, Nancy Rose
Articles in Law Reviews & Other Academic Journals
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …
Procompetitive Justifications In Antitrust Law, John M. Newman
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
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, …