Antitrust and Trade Regulation Commons^™

Annual Survey Of Virginia Law: Antitrust And Trade Regulation Law, Michael F. Urbanski, James R. Creekmore, Beth G. Hungate-Noland

University of Richmond Law Review

This year witnessed the advance of a wide variety of antitrust and trade regulation theories, most of which met with little success. Of the antitrust cases, Continental Airlines waged a successful battle to eliminate carry-on baggage restrictions at Dulles Airport. Additionally, Maryland's price-setting scheme for liquor was not accorded state action immunity. On the other side of the ledger, another antitrust litigant failed to overcome the requirement that efforts to petition the government must be objectively baseless in order to meet the sham exception to the Noerr-Pennington doctrine. Difficulties in proving an antitrust injury and the intent element of a …

Uniform Computer Information Transactions Act: Bringing Commercial Law Into The 21st Century, Richard L. Grier, Nancyellen Keane, Peter A. Gilbert

Richmond Journal of Law & Technology

The e-commerce revolution has redefined the way business is transacted everywhere. Meanwhile, the body of commercial law lags behind the fast pace of technological changes and has yet to effectively address the numerous issues presented by radical changes in the world of commerce such as electronic contracts, electronic signatures, shrinkwrap agreements, and click-wrap agreements. In an effort to establish the Commonwealth of Virginia as a national leader on this subject, in 2000 the Virginia General Assembly passed the Uniform Computer Information Transactions Act ("UCITA"). UCITA legislation has been introduced in a handful of other states but the only other state …

The Competitive Effects Of Passive Minority Equity Interests: Reply, Steven C. Salop, Daniel P. O'Brien

Georgetown Law Faculty Publications and Other Works

In a recent article published in this journal, Jon Dubrow examines the acquisitions of passive minority equity interests. The focus of his article is the treatment of these transactions by the courts and the federal antitrust agencies, including their treatment of the investment-only exemption from Section 7 of the Clayton Act. One section of the article discusses the economic foundation for the competitive effects analysis of these acquisitions, focusing mainly on our article recently published in this journal. Dubrow accepts the basic economic framework set out in our earlier article, and the analysis of factors that affect the acquiring firm's …

Antitrust And Intellectual Property: Unresolved Issues At The Heart Of The New Economy, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The New Economy differs in degree rather than kind from the "old" economy. Part II of this discussion examines the key differences that define the New Economy. Part Ill turns to several implications of those differences as they pertain to antitrust enforcement. I argue that the differences do not justify sweeping generalizations that antitrust enforcement has no place in the New Economy, but do require antitrust enforcement to make adjustments and exercise sensitivity towards intellectual property issues on a case-by-case basis. The goal of a coherent overall competition policy, in deciding both what conduct to enforce against and what remedies …

Tribute To Norman Dorsen, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

It is an enormous delight for me to contribute to this dedication ceremony honoring Norman Dorsen. It did require, however, that I go back and note the fact that I wrote for the Annual Survey thirty-seven years ago. Not only did I discuss antitrust, I made some confident predictions. I noted with alarm that there had been five hundred corporate mergers in the previous year, but pointed out that that would level off as time went on. Well, five hundred would be a quiet month at the Federal Trade Commission these days. I am delighted with the Annual Survey's decision …

The Private Attorney General In A Global Age: Public Interests In Private International Antitrust Litigation, Hannah Buxbaum

Articles by Maurer Faculty

Even in a climate of increased cooperation among regulatory authorities, jurisdictional conflict remains a prominent aspect of cross-border antitrust regulation. Much of this conflict is generated by private litigation - that is, lawsuits initiated under U.S. antitrust law by private attorneys general rather than by the government. This article examines two strands of jurisprudence relevant to the role of the private attorney general in cases with international aspects. First, it analyzes the cases, involving actions based on statutory violations of the antitrust laws, in which the extraterritorial reach of U.S. antitrust law has been delimited. It then turns to decisions …

Baseball And Antitrust: The Legislative History Of The Curt Flood Act Of 1998, Edmund P. Edmonds, William H. Manz.

Books

No abstract provided.

Changes In The Ticket Distribution Industry: Is This The Beginning Of The End For Ticketmaster?, Joycelyn Stevenson

Vanderbilt Journal of Entertainment & Technology Law

This Note aims to explore the legal underpinnings of consumer frustration with Ticketmaster and the rest of the ticket distribution industry as it moves into the electronic age. First, this Note introduces Ticketmaster and examines its use of exclusive dealing agreements with local venues. It then discusses the relevant federal antitrust statutes affecting the industry and the market in which distributors operate. It also analyzes the role exclusive dealing agreements play in stifling competition. Next, this Note discusses the challenges--both legal and economic--to the industry's most visible member. It then discusses Ticketmaster as a possible product of competition in light …

Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan

Articles

The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.

From The White Paper To The Proposal For A Council Regulation, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This Paper analyses how the network of enforcers envisaged in the Proposal for a Council Regulation on the implementation of the rules on competition laid down in Articles 81 and 82 of the EC Treaty (September 2000) would operate. We identify four issues. First, we observe that the Proposal (unlike the White Paper) includes safeguards to avoid a shift of competence in favour of national competition laws, which may be questionable in terms of subsidiarity. Second, we recognise that the accountability of antitrust authorities might vary across the members of the network, so that, for instance, some authorities may be …

Challenges Of The New Economy: Issues At The Intersection Of Antitrust And Intellectual Property, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

There is wide agreement that the last decade or so has presented an unusually lively and challenging period for antitrust analysis. Among many reasons we can point to are deregulation and problems of transition to a free market (telecommunications and electricity production offer leading examples), developments in procedural cooperation and possible substantive convergence in response to the increasing globalization of competition and enforcement approaches, and priorities in addressing an unprecedented merger wave. An additional challenge involves the application of established antitrust principles to the growing high-tech sector of the economy. It is that application of antitrust law to the new …

Analysis Of Foreclosure In The Ec Guidelines On Vertical Restraints, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The antitrust treatment of vertical restraints is quite controversial. In the United States, for example, warring vertical restraints guidelines were issued by the Department of Justice and National Association of Attorneys General, a group of antitrust enforcers from the individual states. However, a consensus was never achieved and these guidelines never entered the mainstream. Compare them to the U.S. Horizontal Merger Guidelines, which have become a template for evaluation of horizontal restraints.

The new EC Guidelines on Vertical Restraints Guidelines ("GVRs") represent a significant effort to create and implement a consistent analytic framework for evaluating vertical restraints. The scope of …

Symposium: Antitrust At The Millennium (Part Ii), Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This issue features Part II of the Antitrust Law Journal's Symposium on Antitrust at the Millennium. As with Part I, which appeared in Volume 68, Issue 1 (2000), most Symposium authors use a decision or other significant text from antitrust's past as a springboard to discuss some aspect of antitrust's future. This group of Symposium essays is being published in the wake of a U.S. election that has shifted control of the Executive Branch of the federal government from Democrats to Republicans. Yet the broad themes and challenges pursed by Symposium authors are likely to remain central to antitrust regardless …

The Stealth Assault On Antitrust Enforcement: Raising The Barriers For Antitrust Injury And Standing, Joseph P. Bauer

Journal Articles

The first Annual Conference sponsored by the American Antitrust Institute featured a number of prominent speakers and explored a number of important issues. The Conference had two principal focuses: substantive questions of antitrust liability and the future direction of public enforcement of the antitrust laws by the Department of Justice's Antitrust Division and by the Federal Trade Commission. However, an issue of at least equal importance was barely discussed, although it has seriously affected the scope and direction of the antitrust laws. That issue: Private enforcement of the antitrust laws, and the significant undermining of those efforts by a number …

Antitrust Intent, Ronald A. Cass, Keith N. Hylton

Faculty Scholarship

Many legal rules turn on a party's state of mind or intent with respect to some action or consequence. Legal scholars have long debated the contours of such requirements and the sorts of proof required for them. Intent has been an especially controversial issue in antitrust law. This paper provides a theory of legal standards that explains the role of intent analysis in antitrust and in other areas of the law. We argue that intent requirements, and many other legal rules, can be understood by focusing on the goal of minimizing the expected costs from legal errors. After developing a …

Should Concentration Be Dropped From The Merger Guidelines?, Jonathan Baker, Steven Salop

Scholarly Articles in Law Reviews & Journals

As members of the ABA Antitrust Section's Task Force on Fundamental Theory, we are pleased to provide a brief discussion of the appropriate role of market concentration in the review of mergers under the antitrust laws. This paper, organized in four main parts, will offer some suggestions for revising the Department of Justice and Federal Trade Commission Horizontal Merger Guidelines. A final section of this work will analyze whether it would be preferable to conduct merger analysis by applying Professor Michael E. Porter's business strategy framework rather than the Merger Guidelines.

New Horizons In Cartel Detection, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Resurrecting Incipiency: From Von's Grocery To Consumer Choice, Robert H. Lande

All Faculty Scholarship

The merger incipiency doctrine is virtually ignored in the courts today. This article argues that it should be resurrected, and it also explores the ways that effectuating Congressional intent in the area would reinvigorate merger policy.

The article documents how the legislative history of the antimerger statutes shows that Congress intended mergers to be evaluated under an incipiency approach, and explores the possible meanings of this idea. It then shows that this is a strong basis for reviving significantly stricter or more prophylactic merger enforcement.

The article shows how there are aspects of the doctrine that could be revived without …

The Dynamics Of Daubert: Methodology, Conclusions, And Fit In Statistical And Econometric Studies, David H. Kaye

Faculty Scholarship

This paper reviews the development of the law governing the admissibility of statistical studies. It analyzes the leading cases on scientific evidence and suggests that both the "reliability" and the "general acceptance" standards raise two major difficulties - the "boundary problem" of identifying the type of evidence that warrants careful screening and the "usurpation problem" of keeping the trial judge from closing the gate on evidence that should be left for the jury to assess.

The paper proposes partial solutions to these problems, and it applies them to statistical and econometric proof, particularly in the context of a recent antitrust …