Antitrust and Trade Regulation Commons^™

All For One, One For None: Arrington V. Burger King Worldwide And The Single-Entity Defense For Franchises, Tyler Nappo

Cardozo Law Review

Section 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld …

Horizontal Price Exchanges, Joseph E. Harrington Jr., Christopher R. Leslie

Cardozo Law Review

The private exchange of prices by competitors has long been a source of anticompetitive concern. Based on claims of possible procompetitive effects, the Supreme Court decided that antitrust challenges to these exchanges should be evaluated under the rule of reason. In reviewing the jurisprudence applying the rule of reason approach to horizontal price exchanges, we find it suspect as it is long on claims of procompetitive benefits but short on economic theory and evidence substantiating those claims. To fill this gap, this Article injects economic reasoning into the judicial discussion. While our analysis identifies several reasons for these exchanges to …

Demystifying The Elusive Quest For Cyber Insurance Protection: The Need For New Contract Language, Deborah L. Johnson

Cardozo Law Review

Cyberattacks and electronic data breaches are on the rise, and the costs associated with those breaches can be astronomical. In response, the insurance industry has created a specialty market for cyber coverage. However, despite the number of cyber insurance policies currently offered on the market, insurers frequently deny claims for cyber coverage under both these specialty and traditional policies.

Examining the evolution of cyberattacks, data breaches, and the massive harm they can cause to businesses, this Article explores the legal and market obstacles to obtaining adequate cyber insurance coverage and offers potential solutions to policyholders and insurers to satisfy this …

The Challenge Of Holding Big Business Accountable, Roy Shapira

Cardozo Law Review

In July 2021, a sweeping Executive Order committed the entire U.S. federal government to reining in big business. Dozens of proposed bills at the state level similarly target big business for stricter regulatory treatment. But unlike in past decades, today’s calls to break up and intensely regulate big business do not hinge on harms to consumers qua consumers. Instead, today’s anti-bigness sentiment rests to a large extent on the claim that big is bad because it is ungovernable. Giant corporations with market power treat legal requirements as mere recommendations, and routinely engage in behavior that harms our civil liberties and …

Licensed To Rock The Campaign Trail: Are The Ascap And Bmi Political Campaign Licenses Violating Their Antitrust Consent Decrees?, Leah Scholnick

Cardozo Law Review

No abstract provided.

State Energy Cartels, James W. Coleman

Cardozo Law Review

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom and the challenges of building new pipelines have forced oil companies to flare staggering quantities of natural gas. Texas and North Dakota are now flaring—that is, wasting—more gas than …

The Paradox Of Criminal History, Eric S. Fish

Cardozo Law Review

Criminal history is all-important in the criminal and immigration systems. But these systems have little substantive information about past crimes. This creates a paradox. A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, or be targeted for deportation, among many other consequences. Yet, despite the vital role that criminal history plays in these decisions, judges and prosecutors know very little about the prior crimes of the people they process. Factually rich accounts of a person’s convictions are rarely available. The system instead relies on rap sheets that record only basic facts—the …

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

The Dark Side Of Reputation, Emily Kadens

Cardozo Law Review

This Article seeks to contribute to the literature challenging the role of reputation in disciplining commerce. The historical disputes discussed here, which arose in the supposedly privately-ordered zone of the premodern merchant, add nuance to our understanding of how commerce works in the real world. Part I briefly reviews some of the problems the economic and network theory literature has identified with reputation. Part II turns to the history and demonstrates how trust could be cheaply manufactured due in part to potential partners' failure to look beyond superficial indicia of reputation. Part III then considers why reputation might have been …

The Antitrust Duty To Charge Low Prices, Ramsi A. Woodcock

Cardozo Law Review

Over the past forty years, antitrust has come to embrace a goal of consumer welfare maximization that cannot be achieved solely through condemnation of collusive or exclusionary conduct. To address cases in which firms achieve the power to raise prices and harm consumers without engaging in collusive or exclusionary conduct, antitrust should impose a general duty on businesses to charge a price no higher than economic cost. Courts would not need to set prices to enforce this duty, because violations would be punishable only by nominal damages, and shame, rather than by an injunction setting a reasonable price. Although the …

Fighting The Troll Toll: The Case For Judicial Review Of The U.S.P.T.O. Director's Denial Of A Petition To Institute An Inter Partes Review, Renoj Zachariah

Cardozo Law Review

The note challenges the Federal Circuit's ruling in St. Jude Medical, LLC v. Volcano Corp., which held that the Director of the U.S. Patent and Trademark Office's (USPTO) decision to deny an Inter Partes Review (IPR) is final and non-appealable under 35 U.S.C. § 314(d). Arguing that this ruling misinterprets the statute and undermines the goals of the America Invents Act (AIA), the article advocates for judicial review of such decisions to ensure fairness, prevent abuse of discretion, and align IPR proceedings with administrative law principles. It also highlights the inconsistency in allowing judicial review for Covered Business Method …

From Pay-For-Delay To Product Hopping: The Limited Utility Of Antitrust Law In The Pharmaceutical Industry, Joseph Fielding

Cardozo Law Review

The note examines the intersection of patent law and antitrust policy, particularly in the context of pharmaceutical drug competition. It argues that while antitrust enforcement is an effective solution to address "pay-for-delay" agreements, it is less suitable for resolving "product-hopping" issues. Instead, the article contends that closing regulatory loopholes in the Hatch-Waxman framework would be a more effective approach to curbing anticompetitive product-hopping practices. The analysis focuses on two key cases—Federal Trade Commission v. Actavis, Inc. and Schneiderman v. Actavis LLC—to illustrate the legal and economic implications of these strategies.

What's The [Irreparable] Harm?: Incentivizing Creativity Through Preliminary Injunctions In Copyright Law, Arielle Matza

Cardozo Law Review

No abstract provided.

Manipulating, Fast And Slow: The Law Of Non-Verbal Market Manipulations, Shmuel I. Becher, Yuval Feldman

Cardozo Law Review

Consumers make purchasing decisions in various markets every day. Contrary to common belief, such decision-making is often not the result of deliberate analysis of information or of rational thinking. Rather, it is frequently based on feelings, sensations and intuition. Purchasing decisions are not made in a vacuum and are regularly influenced by sellers' manipulation and selling tactics.

It is well documented that people receive a substantial part of the information they possess via non-verbal communication. One of the most alarming aspects of this reality is that consumers are mostly unaware of non-verbal cues and the ways they can influence them. …

The Chicago School Trap In Trademark: The Co-Evolution Of Corporate, Antitrust, And Trademark Law, Deven R. Desai

Cardozo Law Review

The central claim of this Article is that, as a descriptive matter, trademark legislation and court interpretation is a close normative match with the Chicago School approach of scholars such as Robert Bork and Richard Posner. The organizing intellectual structure of modern trademark law, as developed in the law, has been freedom of action for the owner of the mark, not minimizing search costs as repeatedly stated in academic writing. This Article thus reveals that modern trademark law is a subset of the Chicago School's approach to the firm, deference to management, and competition. That view is not interested in …

Death By Daubert: The Continued Attack On Private Antitrust, Christine P. Bartholomew

Cardozo Law Review

In 2011, with five words of dicta, the Supreme Court opened Pandora's Box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court's lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pre-trial timing. Premature rejection of expert testimony dooms budding private antitrust suits - cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court's …

Deconstructing And Reconstructing Hot News: Toward A Functional Approach, Jeffrey L. Harrison, Robyn Shelton

Cardozo Law Review

No abstract provided.

Administrative Justice: Using Agency Declaratory Orders In The Fight To Staunch The Financing Of Terrorism, J. David Pollock

Cardozo Law Review

No abstract provided.

Misbehavioral Economics: The Case Against Behavioral Antitrust, Joshua D. Wright, Judd E. Stone Ii

Cardozo Law Review

Dissatisfied with the mainstream antitrust jurisprudence that has emerged over the past several decades and garnered widespread consensus, and encouraged by the momentum the financial crisis has generated for intervention, competition policy scholars and regulators have turned to behavioral economics to provide the intellectual foundation for a new, "behaviorally informed" approach to competition policy. We evaluate these behaviorally informed regulatory proposals assuming arguendo ideal conditions for their implementation: the robustness of behavioral findings to the market setting, the appropriateness of imputing those findings to firm behavior, and that regulators and judges do not suffer the same biases. Others have effectively …

Overcharge But Don't Overestimate: Calculating Damages For Antitrust Injuries In Two-Sided Markets, Daniel M. Tracer

Cardozo Law Review

No abstract provided.

Antitrust Immunity And Standard Setting Organizations: A Case Study In The Public-Private Distinction, Christopher L. Sagers

Cardozo Law Review

No abstract provided.

The Faux Fix: Why A Repeal Of Major League Baseball's Antitrust Exemption Would Not Solve Its Severe Competitive Balance Problems, Andrew E. Borteck

Cardozo Law Review

No abstract provided.

Harmful Remedies: Optimal Reformation Of Anticompetitive Contracts, Michal S. Gal

Cardozo Law Review

Current law and economics literature identifies two main types of errors courts can make in applying antitrust law. Courts may erroneously label conduct as anticompetitive even though competition is not harmed. Alternatively, courts may fail to identify, and thus fail to attack, anticompetitive conduct. This Article focuses on a third possible error - where a court correctly identifies anticompetitive conduct, but its mode of interference, i.e., its prescribed remedy, harms competition. It analyzes this error in the context of anticompetitive contract reformation. Such error occurs, for example, where a court has chosen one reformation option that is less efficient and …

National Laws And International Markets: Strategies Of Cooperation And Harmonization In The Enforcement Of Competition Law, Spencer Weber Waller

Cardozo Law Review

This Article contrasts how two leading competition law systems, the United States and the European Union ("EU"), have reacted to the growing internationalization of markets and the relative decline of the ability of any single jurisdiction to regulate transnational business behavior. For reasons unique to their respective histories, cultures, and politics, these two jurisdictions have adopted very different strategies for dealing with this problem.

The Robinson-Patman Act Sections 2(D) And 2(E): Promotional Allowances And The Per Se Rule Of Illegality, Julian Chung

Cardozo Law Review

The Robinson-Patman Act (the "Act"), as part of the antitrust laws, was designed to prevent direct and indirect price discrimination. Specifically, the Act prohibits price discrimination through the use of certain types of discounts granted by sellers to select customers. Sections 2(d) and 2(e) of the Act attempt to further this prohibition by expressly regulating promotional allowances and services. Although Federal Trade Commission ("FTC") enforcement of the sections has declined, private litigation under sections 2(d) and 2(e) of the Robinson-Patman Act has recently been revived. Three recent suits involving the compact disc ("CD") market exemplify this trend. Retailers of CDs …

Your Image Is My Image: When Advertising Dedicates Trademarks To The Public Domain - With An Example From The Trademark Counterfeiting Act Of 1984, Malla Pollack

Cardozo Law Review

No abstract provided.

Revolution - At Night?, Thomas Keenan

Cardozo Law Review

No abstract provided.

Connectionism And Legal Inference, Paul Thagard

Cardozo Law Review

No abstract provided.

Beyond Compliance: A Corporate Perspective, Mark L. Manewitz

Cardozo Law Review

No abstract provided.

Harnessing The Multinational Corporation To Enhance Third World Development - The Rise And Fall And Future Of Antitrust As Regulator, Eleanor M. Fox

Cardozo Law Review

No abstract provided.