Antitrust and Trade Regulation Commons^™

Private Equity’S Viable Path To College Athletics Investment: Potential Entity Mechanisms And Antitrust Considerations, Michael Llg

Vanderbilt Journal of Entertainment & Technology Law

The recent House settlement with the National Collegiate Athletic Association was another blow to traditional collegiate governance in an age of uncertainty in college athletics. In the wake of the House settlement and other recent decisions, multiple private equity funds have shown interest in investing on a school-by-school basis or buying out dozens of teams to form a new commercialized league in select sports. Many questions remain with the viability of private investment in college athletics. Unlike traditional private equity investment, schools are 501(c)(3) nonprofit organizations typically operating within an athletic conference. This creates an additional hurdle to for-profit investing …

Defense Wins Championships (And Labor Disputes): How The Minor Leagues Can Field Their Position Against Mlb’S ‘Inside Baseball', Blake Morain

Vanderbilt Law Review

For years, minor league baseball players received salaries far below the federal minimum wage, despite working sixty hours per week. It was not uncommon for these professional athletes to share cramped hotel rooms, sleep on floors, or live out of their cars. Most had to secure loans and pursue odd jobs to make ends meet during the offseason. Such sacrifices were necessary for minor leaguers to achieve their dreams of reaching the major league level, particularly as those abysmal working and living conditions became entrenched by adverse legislation and judicial rulings.

Only within the last five years have minor leaguers …

Presidential Regulation, Ganesh Sitaraman, Timothy Meyer

Vanderbilt Law School Faculty Publications

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade […]

Google’S Chrome Antitrust Paradox, Shaoor Munir, Konrad Kollnig, Anastasia Shuba -- Independent Researcher, Zubair Shafiq

Vanderbilt Journal of Entertainment & Technology Law

This Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and …

Beyond Nil, William W. Berry, Iii

Vanderbilt Journal of Entertainment & Technology Law

The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players—-the revenue sport athletes-—may have a claim to a greater share of this revenue.

Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available …

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Vanderbilt Law Review

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …

Globalize Me: Regulating Distributed Ledger Technology, Roee Sarel, Hadar Y. Jabotinsky, Israel Klein

Vanderbilt Journal of Transnational Law

Distributed Ledger Technology (DLT)—the technology underlying cryptocurrencies—has been identified by many as a game-changer for data storage. Although DLT can solve acute problems of trust and coor- dination whenever entities (e.g., firms, traders, or even countries) rely on a shared database, it has mostly failed to reach mass adoption outside the context of cryptocurrencies.

A prime reason for this failure is the extreme state of regulation, which was largely absent for many years but is now pouring down via uncoordinated regulatory initiatives by different countries. Both of these extremes-—under-regulation and over-regulation—-are consistent with traditional concepts from law and economics. Specifically, …

Spac Mergers, Ipos, And The Pslra's Safe Harbor: Unpacking Claims Of Regulatory Arbitrage, Amanda M. Rose

Vanderbilt Law School Faculty Publications

Communications in connection with an initial public offering (IPO) are excluded from the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 (PSLRA). Unsurprisingly, IPO issuers do not share projections publicly-—the liability risk is too great. By contrast, communications in connection with a merger are not excluded from the safe harbor, and special purpose acquisition companies (SPACs) routinely share their merger targets’ projections publicly. Does the divergent application of the PSLRA’s safe harbor in traditional IPOs and SPAC mergers create an opportunity for “regulatory arbitrage” and, if so, what should be done about it? …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Vanderbilt Journal of Transnational Law

Digital sovereignty-the exercise of control over the internet-is the ambition of the world's leaders, from Australia to Zimbabwe, seen as a bulwark against both foreign states and foreign corporations. Governments have resoundingly answered first-generation internet law questions of who, if anyone, should regulate the internet. The answer: they all will. Governments now confront second-generation questions--not whether, but how to regulate the internet. This Article argues that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy's dreaded antagonist. As international law scholar Louis Henkin taught, sovereignty can insulate a government's worst ills from foreign intrusion. Assertions of digital …

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 …

The Political Economy Of Wto Exceptions, Timothy Meyer

Vanderbilt Law School Faculty Publications

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism-essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives-addressing the central environmental, public health, and economic issues of the day-all likely violate World Trade Organization (WTO) rules governing …

A Revised Monitoring Model Confronts Today's Movement Toward Managerialism, Randall S. Thomas, James D. Cox

Vanderbilt Law School Faculty Publications

There are many lessons to be drawn from the sweep of history. In law, the compelling story repeatedly told is the observable co-movement of law on the one hand, and economic, social, and political changes on the other hand. Aberrations, however, do arise but generally do not persist in the long term. Contemporary corporate law seems to be on the cusp of such an abnormality as legal developments and proposed reforms for corporate law are currently conflicting with the direction in which the host environment is moving. This article identifies a series of contemporary judicial and regulatory corporate governance developments …

Regulation And The Geography Of Inequality, Ganesh Sitaraman, Christopher Serkin, Morgan Ricks

Vanderbilt Law School Faculty Publications

We live in an era of widening geographic inequality. Around the country, the spread between economically and culturally thriving places and those that are struggling has been increasing. "Superstar" cities like New York, San Francisco, Boston, and Atlanta continue to attract talent and grow, while the economies of other cities and rural areas are left behind. Troublingly, escalating geographic inequality in the United States has arrived hand in hand with serious economic, social, and political problems. Areas that are left behind have not only failed to keep up with their thriving peers; in many ways, they have stagnated and seen …

To Win Friends And Influence People: Regulation And Enforcement Of Influencer Marketing After Ten Years Of The Endorsement Guides, Craig C. Carpenter, Mark Bonin Ii

Vanderbilt Journal of Entertainment & Technology Law

For the last ten years, social media influencer marketing has been regulated by the Federal Trade Commission (FTC) under the FTC’s Section 5 “unfair practices” authority, guided by the Endorsement Guides, a “best practices” document published by the FTC. This is a fairly “light” regulatory scheme where violators typically enter no-money, no-fault consent decrees and generally undertake to do a better job following the Endorsement Guides in the future. During this time, the practice has flourished, and companies are spending significant portions of their marketing budgets on social media influencer advertising. Recently, the FTC has submitted proposals for increased enforcement …

Antitrust's High-Tech Exceptionalism, Rebecca H. Allensworth

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector-is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets in …

Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu

Vanderbilt Journal of Entertainment & Technology Law

Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …

Zombie Energy Laws, Joshua C. Macey

Vanderbilt Law Review

This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. It argues that important elements of these legal rules have become “zombie energy laws.” Zombie energy laws are statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate. Zombie energy laws were originally designed to protect consumers by, among …

Misaligned Lawmaking, Timothy Meyer

Vanderbilt Law Review

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

Franchise Participants As Proper Patent Opponents: Walker Process Claims, Robert W. Emerson

Vanderbilt Journal of Entertainment & Technology Law

Franchise parties may be sued for patent infringement, or they may seek to sue others for an antitrust injury as the result of a fraudulently obtained patent. Indeed, franchisors and franchisees may simultaneously fall under both categories-sued for infringement but aggrieved because the very basis of that suit is illegitimate in their eyes. These franchise parties may turn for relief to a patent-validity challenge authorized in the seminal case Walker Process Equipment, Inc. v. Food Machine & Chemical Corp. Franchise participants-franchisees and franchisors alike-may be the ideal Walker Process claimants. When these types of cases occur, the damages within the …

Do Founders Control Startup Firms That Go Public?, Brian Broughman, Jesse M. Fried

Vanderbilt Law School Faculty Publications

American competition policy has four big problems: Amazon, Apple, Facebook, and Google. These companies each reign over a sector of the digital marketplace, controlling both the consumer experience and the possibility of competitive entry. This Essay argues that the conventional account of how antitrust law allowed this consolidation of market power - that it failed to evolve to address the market realities of the technology sector- is incomplete. Not only did courts fail to adapt antitrust law from its smoke-stack roots, but they gave big tech special dispensation under traditional antitrust doctrine. Swayed by prevailing utopic views about digital markets …

Antitrust In Digital Markets, John M. Newman

Vanderbilt Law Review

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, conduct, and …

Is Strict Reciprocity Required For Fair Trade?, Daniel C.K. Chow, Ian Sheldon

Vanderbilt Journal of Transnational Law

The administration of Donald J. Trump has repeatedly claimed that reciprocity is required for "fair" trade. While this concept is not new in US political discourse, the Trump administration's insistence that strict or absolute reciprocity is required goes beyond any claims made by previous US administrations. By strict reciprocity, the United States means that all trade volumes and terms and conditions of trade must be mirror images of each other. As the United States has a trade deficit with all of its largest trading partners, the Trump administration claims that this is evidence of unfairness in trade harming the United …

The Ncaa On Notice: How Utilizing Principles Of Federalism Could Relieve Antitrust Pressure, Grant Newton

Vanderbilt Journal of Entertainment & Technology Law

The National Collegiate Athletic Association (NCAA) was founded to protect athletes from injury and to provide an avenue for the pursuit of sport alongside the pursuit of education. The NCAA maintains that accomplishing each of those goals requires the preservation of amateurism through a cap on the amount of funds universities may disburse to athletes. Historically, value judgments saved the NCAA from antitrust challenges because courts found that the NCAA's rules furthered the organization's purpose. As antitrust law has developed over the past fifty years, however, courts have become increasingly determined to avoid value judgments in antitrust challenges. Thus, it …

Hindsight Bias In Antitrust Law, Christopher R. Leslie

Vanderbilt Law Review

The modern field of study into hindsight bias was launched by Baruch Fischhoff. Fischhoff provided his research subjects with a primer on the 1810s conflict between British forces and Nepalese Gurkhas near Northern India. He suggested four possible outcomes: British victory, Gurkha victory, a peace settlement, and a military stalemate with no peace settlement. The subjects were then divided into five groups. One group was given no information about the ultimate outcome of the conflict. Subjects in each of the remaining four groups were told that one of the four outcomes had, in fact, occurred. The subjects were then asked …

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Investor-State Dispute Settlement: Human Rights And Regulatory Lessons From "Lilly V. Canada", Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to …

The New Separability, Lili Levi

Vanderbilt Journal of Entertainment & Technology Law

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Act does not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining …

When Trade Secrecy Goes Too Far: Public Health And Safety Should Trump Corporate Profits, Julie E. Zink

Vanderbilt Journal of Entertainment & Technology Law

This Article addresses the historical and ongoing use of trade secrets to withhold critical information from the public. Through its text and footnotes, the Article discusses the positives and negatives of trade secret protection; addresses historical and current examples of trade secret abuse; analyzes the inadequate solutions that have been tried and proposed; and, ultimately, recommends changing trade secret law by incorporating the precautionary principle into the definition of a trade secret to ensure that protection will no longer be available for information that endangers public health.

This Article is both timely and necessary, as the public is continually bombarded …

Cartel Criminalization In Europe: Addressing Deterrence And Institutional Challenges, Francesco Ducci

Vanderbilt Journal of Transnational Law

This Article analyzes cartel criminalization in Europe from a deterrence and institutional perspective. First, it investigates the idea of criminalization by putting it in perspective with the more general question of what types of sanctions a jurisdiction might adopt against collusive behavior. Second, it analyzes the institutional element of criminalization by (1) discussing the compatibility of administrative enforcement with the potential de facto criminal nature of administrative fines under European law and (2) evaluating the trade-offs between an administrative and a criminal model of enforcement. Although a "panoply" of sanctions against both corporations and individuals may be necessary under a …

Tweet To Defeat Government Bribes: Limiting Extraterritorial Jurisdiction Under The Foreign Corrupt Practices Act To Combat Global Corporate Corruption, Sarah Routh

Vanderbilt Journal of Transnational Law

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA's jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have …