Antitrust and Trade Regulation Commons^™

Monopoly Bundling In Cyberspace: How Many Products Does Microsoft Sell?, Alan J. Meese

Faculty Publications

No abstract provided.

Liberty And Antitrust In The Formative Era, Alan J. Meese

Faculty Publications

No abstract provided.

Economic Theory, Trader Freedom And Consumer Welfare: State Oil Co. V. Khan And The Continuing Incoherence Of Antitrust Doctrine, Alan J. Meese

Faculty Publications

No abstract provided.

Price Theory And Vertical Restraints: A Misunderstood Relation, Alan J. Meese

Faculty Publications

The Chicago School of antitrust analysis has exerted a strong influence over the law of vertical restraints in the past two decades, leading the Supreme Court to abandon much of its traditional hostility toward such agreements. Chicago's success has provoked a vigorous response from Populists, who support the traditional approach. Chicago, Populists claim, has improperly relied upon neoclassical price theory to inform the normative and descriptive assumptions that drive its analysis of trade restraints generally and of vertical restraints in particular. This reliance is misplaced, Populists assert, because the real world departs from that portrayed by price-theoretic models and, at …

Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese

Faculty Publications

No abstract provided.

Antitrust Balancing In A (Near) Coasean World: The Case Of Franchise Tying Contracts, Alan J. Meese

Faculty Publications

No abstract provided.

Antitrust Liability Premised, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This article will explore potential antitrust liability arising from attempted enforcement of invalid patents or trade secrets known to be invalid. A fundamental tension exists between the law of intellectual property and antitrust law. Federal patent laws and the state law doctrines of trade secrets confer on the holder exclusive rights to exploit an invention or creation and to exclude others from its use. The rationale of the patent laws and state intellectual property laws is to foster innovation and to provide inventors with protection for the fruits of their labor. By contrast, antitrust laws embody a public policy …

The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers

Faculty Publications

During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …

Litigation As A Predatory Practice, Gary Myers

Faculty Publications

This article reviews and evaluates the sham litigation case law, finding that many courts have allowed immunity too readily or on inappropriate grounds. It attempts to develop comprehensive standards for antitrust claims based on sham litigation.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

Faculty Publications

No abstract provided.

Attorneys’ Fees In Antitrust Litigation: Making The System Fairer, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Section 4(a) of the Clayton Act entitles prevailing plaintiffs in private antitrust actions to recover, in addition to treble damages, their reasonable attorneys' fees. Unique when adopted as part of the Sherman Act in 1890, this fee-shifting provision has been imitated, at least in part, in over 100 federal statutes. In providing for attorneys' fees, Congress intended to promote private enforcement of the antitrust laws and to insulate the treble damages recovery from expenditures for legal fees. Fee-shifting is mandatory where a plaintiff prevails, but the court has some leeway in setting the amount of the fee. The controversy …

Detrebling Antitrust Damages: An Idea Whose Time Has Come?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Since the passage of the Sherman Act in 1890, successful plaintiffs in private antitrust actions have been entitled to recover three times the actual damages awarded. Originally embodied in section 7 of the Sherman Act, the mandatory treble damages provision was later incorporated into section 4 of the Clayton Act and made applicable to all actions in which private plaintiffs sought recovery under the federal antitrust laws. In the century since the Sherman Act became law, the antitrust debate has concentrated largely on issues of substantive liability. While the desirability of the mandatory treble damages remedy has been challenged …

Contribution, Claim Reduction, And Individual Treble Damage Responsibility: Which Path To Reform Of Antitrust Remedies?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Antitrust violations traditionally have been viewed as statutory torts, yet tort principles of damage allocation, including contribution and claim reduction, have not been extended by analogy in the federal courts to antitrust cases. Moreover, the principle of joint and several liability, made applicable to antitrust conspirators by judicial fiat some eighty years ago, has gone largely unchallenged. While the federal antitrust laws are nearly a century old, the damage allocation debate is of recent vintage, emerging in the wake of the Electrical Equipment Cases, when the private treble damage remedy came into its own.

The recent emergence of …

Antitrust And Employer Restraints In Labor Markets, Robert H. Jerry Ii

Faculty Publications

This Article argues that the Sherman Act regulates concerted employer activity in the labor market only if such activity restrains or attempts to restrain the product market. After discussing the legislative history of the Act, the Article examines and synthesizes two conflicting lines of cases. Finally, the Article suggests how courts should dispose of challenges to employer conduct and posits the basis for a unified theory of labor-antitrust law.

The Illinois Brick Dilemma: Is There A Legislative Solution?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In Illinois Brick Co. v. Illinois, the United States Supreme Court held that in price-fixing actions brought under section 1 of the Sherman Act, only first purchasers in the chain of vertical distribution are "injured," within the meaning of section 4 of the Clayton Act, by the full amount of any overcharge. The Court's ruling bars plaintiffs who are "indirect purchasers" from offering proof that they have been injured by defendants' illegal overcharges which have been "passed on" to them by middlemen. The Court's holding reaffirmed the principles previously enunciated in Hanover Shoe, Inc. v. United Shoe Machinery …

The Supreme Court And Antitrust Analysis: The Near Triumph Of The Chicago School, Peter M. Gerhart

Faculty Publications

No abstract provided.

Ftc Rulemaking Through Negotiation, Charles H. Koch Jr., Beth Martin

Faculty Publications

The Federal Trade Commission, along with other administrative agencies, has been especially affected by the current emphasis on deregulation. Some proponents of the free market system view the Commission as an unnecessary and costly impediment to market functioning. In this article, Professor Koch and Ms. Martin review past FTC regulatory efforts in light of the FTC's mandate: to maintain an efficient, competitive free market Although the FTC has deviated from its market maintenance goal, this deviation should not serve as a basis for constricting Commission rulemaking activity. Rather, the authors demonstrate that past Commission practices illustrate the need for an …

Illinois Brick Revisited: An Analysis Of A Developing Antitrust Jurisprudence, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In June 1977, the United States Supreme Court handed down the landmark decision in Illinois Brick Co. v. Illinois. Reaffirming its decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., the Court held that in a treble damages action where defendants are charged with price-fixing in violation of Section 1 of the Sherman Act, first purchasers, and not others down the distribution line ("indirect purchasers"), are injured by the full amount of any overcharge; and indirect purchasers are prohibited from offering proof that illegal overcharges had been "passed on" to them by their sellers.

The holding …

Labor Unions In The Boardroom: An Antitrust Dilemma, Davison M. Douglas

Faculty Publications

No abstract provided.

The Competitive Advantages Explanation For Interbrand Restraints: An Antitrust Analysis, Peter M. Gerhart

Faculty Publications

This article argues that antitrust doctrine concerning intrabrand restrictions is unsatisfactory because the economic theory of intrabrand restrictions has been only partially developed and articulated. An unfilled and largely unacknowledged analytical gap exists between the view that intrabrand restraints are generally anticompetitive and the view that intrabrand restraints are generally efficiency-producing. That gap is the failure to explore how a manufacturer benefits from intrabrand restraints other than by increasing the profitability of his dealers. This article attempts to fill that gap by drawing on the theory of imperfect competition to explain why manufacturers find it profitable to restrict intrabrand competition …

The New York Stock Exchange Minimum Commission Rate Structure: Antitrust On Wall Street, Paul C. Giannelli

Faculty Publications

No abstract provided.