Law Commons^™

Antitrust And Competition Issues, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter offers a broad overview of the impact of U.S. antitrust laws on IP licensing and transactions. A basic understanding of antitrust law is critical to the analysis of IP licensing arrangements, whether concerning patents, copyrights or trademarks. This chapter offers a summary of the antitrust doctrines that arise frequently in IP and technology-focused transactions — price fixing and market allocation, resale price maintenance, tying, monopolization, refusals to deal, standard setting and pay-for-delay settlements, with coverage of the major cases and enforcement agency guidance. Antitrust issues also play a role in the analysis of joint ventures, which are discussed …

Network Effects In Action, Christopher S. Yoo

All Faculty Scholarship

This Chapter begins by examining and exploring the theoretical and empirical limits of the possible bases of network effects, paying particular attention to the most commonly cited framework known as Metcalfe’s Law. It continues by exploring the concept of network externalities, defined as the positive external consumption benefits that the decision to join a network creates for the other members of the network, which is more ambiguous than commonly realized. It then reviews the structural factors needed for models based on network effects to have anticompetitive effects and identifies other factors that can dissipate those effects. Finally, it identifies alternative …

Is The Digital Economy Too Concentrated?, Jonathan Klick

All Faculty Scholarship

Concentration in the digital economy in the United States has sparked loud criticism and spurred calls for wide-ranging reforms. These reforms include everything from increased enforcement of existing antitrust laws, such as challenging more mergers and breaking up firms, to an abandonment of the consumer welfare standard. Critics cite corruption and more systemic public choice problems, while others invoke the populist origins of antitrust to slay the digital Goliaths. On the other side, there is skepticism regarding these arguments. This chapter continues much of that skepticism.

Protecting And Fostering Online Platform Competition: The Role Of Antitrust Law, Jonathan Baker

Contributions to Books

This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anti-competitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways regulation can supplement antitrust law in fostering competition.

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

All Faculty Scholarship

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again …

Law Library Blog (October 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Algorithmic Personalized Pricing, Pascale Chapdelaine

Law Publications

Price is an essential term at the heart of supplier-consumer transactions and relationships increasingly taking place in “micro-marketplace chambers,” where points of comparison with similar relevant products may be difficult to discern and time-consuming to make. This article critically reviews recent legal and economic academic literature, policy reports on algorithmic personalized pricing (i.e. setting prices according to consumers’ personal characteristics to target their willingness to pay), as well as recent developments in privacy regulation, competition law, and policy discourse, to derive the guiding norms that should inform the regulation of this practice, predominantly from a consumer protection perspective. Looking more …

Competition Wrongs, Nicolas Cornell

Articles

In both philosophical and legal circles, it is typically assumed that wrongs depend upon having one’s rights violated. But within any market-based economy, market participants may be wronged by the conduct of other actors in the marketplace. Due to my illicit business tactics, you may lose profits, customers, employees, reputation, access to capital, or any number of other sources of value. This Article argues that such competition wrongs are an example of wrongs that arise without an underlying right, contrary to the typical philosophical and legal assumption. The Article thus draws upon various forms of business law to illustrate what …

Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.

The New Gatekeepers: Private Firms As Public Enforcers, Rory Van Loo

Faculty Scholarship

The world’s largest businesses must routinely police other businesses. By public mandate, Facebook monitors app developers’ privacy safeguards, Citibank audits call centers for deceptive sales practices, and Exxon reviews offshore oil platforms’ environmental standards. Scholars have devoted significant attention to how policy makers deploy other private sector enforcers, such as certification bodies, accountants, lawyers, and other periphery “gatekeepers.” However, the literature has yet to explore the emerging regulatory conscription of large firms at the center of the economy. This Article examines the rise of the enforcer-firm through case studies of the industries that are home to the most valuable companies, …

Law School News: F.A.Q. Update: Covid-19 And Rwu Law 03-30-2020, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Coercive Competition: A New Paradigm For Culture And Conduct Risk Management, Stephen Scott

Seattle University Law Review

Ultimately, this is an Article about human behavior, its causes and consequences. A subject so vast does not confine itself to any one, narrow, academic swim-lane and neither do I. Rather, I have afforded myself the luxury of borrowing liberally from a range of disciplines and their associated literatures, seeking to weave a coherent narrative that allows us to ask “what are we to do?” and to posit an approach to identifying responsive ideas that at least warrant some consideration.

Declining Industrial Disruption, James Bessen

Faculty Scholarship

Recent research finds that markups are rising, suggesting declining competition. But does less price competition mean less Schumpeterian “creative destruction”/industry dynamism? This paper reports the first recent estimates of trends in the displacement of industry-leading firms. Displacement hazards rose for several decades since 1970 but have declined sharply since 2000. Using a production function-based model to explore the role of investments, acquisitions, and lobbying, we find that investments by dominant firms in intangibles, especially software, are distinctly associated with greater persistence and reduced leapfrogging. Software investments by top firms soared around 2000, contributing substantially to the decline. Also, higher markups …

Ethnically Segmented Markets, Felix B. Chang

Faculty Articles and Other Publications

Races often collide in segmented markets where buyers belong to one ethnic group while sellers belong to another. This Article examines one such market: the retail of wigs and hair extensions for African Americans, a multi-billion-dollar market controlled by Korean Americans. Although previous scholarship attributed the success of Korean American ventures to rotating credit and social capital, this Article ascribes their dominance in wigs and extensions to collusion and exclusion, tactics scrutinized under antitrust.

This Article is the first to synthesize the disparate treatment of ethnically segmented markets in law, sociology, and economics into a comprehensive framework. Its primary contribution …

Speech, Innovation, And Competition, Greg Day

Scholarly Works

Critics contend that concentrated power in digital markets has generated threats to free speech. For a variety of reasons, market power is naturally thought to concentrate in digital markets. The consequence is that “big tech” is said to face little competition; Facebook controls 72 percent of the social media market while the parent of YouTube (72 percent of the video market) is Google (92 percent of the search market). This landscape has potentially vested private companies with unprecedented power over the flow of information. If Facebook, for example, decides to ban certain types of speech or ideas, it would potentially …

Jewish Lawyers And The U.S. Legal Profession: The End Of The Affair?, Eli Wald

Touro Law Review

No abstract provided.

Regulatory Malfunctions In The Drug Patent Ecosystem, Ana Santos Rutschman

All Faculty Scholarship

Patent protection for several of the world’s best-selling and most promising drugs — biologics — has begun waning. Over the next few years, many other drugs in this category will lose critical patent protection. In principle, this should open the United States market to competition, as more manufacturers are now able to produce relatively cheaper versions of these expensive drugs, known as biosimilars. That, however, has not been the case. This Article examines this problem in the context of the articulation between anticompetitive behaviors and regulatory interventions in the biopharmaceutical arena, and argues for a novel solution: a timelier response …

Probability, Presumptions And Evidentiary Burdens In Antitrust Analysis: Revitalizing The Rule Of Reason For Exclusionary Conduct, Andrew I. Gavil, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The conservative critique of antitrust law has been highly influential and has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded those of false negatives.

Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in the law and in economic analysis have rendered them anachronistic, particularly with respect …

The Post-Chicago Antitrust Revolution: A Retrospective, Christopher S. Yoo

All Faculty Scholarship

A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the past and the future of antitrust. This afterword reviews the excellent papers with an eye toward appreciating the contributions and limitations of both the Chicago School, in terms of promoting the consumer welfare standard and embracing price theory as the preferred mode of economic analysis, and the post-Chicago School, with its emphasis on game theory and firm-level strategic conduct. It then explores two emerging trends, specifically neo-Brandeisian advocacy for abandoning consumer welfare as the sole goal of antitrust and the …

Brand Name Or Equal: Without "Equal," It's Not Competitive, Steven L. Schooner

GW Law Faculty Publications & Other Works

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some …