Antitrust and Trade Regulation Commons^™

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam F. Halabi

Faculty Publications

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ("FTAIA") has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ("Empagran") that the doctrine of "comity among nations" limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by …

Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall

Seattle University Law Review

This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …

Narrower Is Better - The Third Circuit's Latest Word On Conscious Parallelism And The Problem Of Plus Factors: In Re Flat Glass, Joseph Skocilich

Villanova Law Review (1956 - )

No abstract provided.

Evaluating Bundled Discounts, Thom Lambert

Faculty Publications

This article identifies and critiques five attempts courts and commentators have made at articulating such an evaluative approach and, finding each approach lacking, proposes an alternative evaluative approach. The proposed approach would presume the legality of above-cost bundled discounts but would permit that presumption to be rebutted by a plaintiff that proved certain facts demonstrating that it had fully exhausted its competitive options and was, or was likely to become, as efficient as the discounter. The recommended approach would be easily administrable and would include clear safe harbors to ensure that procompetitive bundled discounting is not discouraged.

Antitrust Implications Of The Credit Card Interchange Fee And An International Survey, Avril Mckean Dieser

Loyola Consumer Law Review

No abstract provided.

How The Antitrust Modernization Commission Should View State Antitrust Enforcement, Robert L. Hubbard, James Yoon

Loyola Consumer Law Review

No abstract provided.

Examining Compliance With Fiduciary Duties: A Study Of Real Estate Agents (With V. Carlos Slawson Jr.), Royce De R. Barondes, Carlos V. Slawson Jr.

Faculty Publications

The traditional default rule in the United States has been that, where two brokerage firms participate in the sale of a piece residential real estate, both firms are fiduciaries of the seller. This article provides original empirical evidence showing to be erroneous a common assumption - that, in conflicts between their principals and third parties, real estate agents promote their principals' interests - underlying revisions made in a number of jurisdictions to those principles in the last twenty years. This article examines whether agents act in accordance with their duties along two dimensions: First, we hypothesize that selling agents may …

Should Antitrust Education Be Mandatory (For Law School Administrators)?, Thom Lambert, Royce De R. Barondes

Faculty Publications

The purpose of this essay is merely to examine the pertinent antitrust issues. The essay proceeds on the assumption that the AALS policy, whose terms are precatory, speaks to what is in fact an agreement among law schools. As noted below, the policy itself contemplates that law school deans will seek waivers, in individual cases, extending the time periods for up to two months. Were the policy to be litigated, law schools might dispute the existence of an agreement. We believe, though, that the nature of the policy strongly suggests that it represents an agreement among law schools and that …

Transaction Costs And Antitrust Concerns In The Licensing Of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005), Richard A. Posner

UIC Review of Intellectual Property Law

High transaction costs incurred in the licensing of intellectual property create a pressure on legal principles ranging from the fair use doctrine of copyright law to the tying doctrine in antitrust law. It appears, with some exceptions, that antitrust law is imposing excessive restrictions on the licensing of intellectual property. The effect of these restrictions, combined with the high transaction costs inherent in the licensing of intellectual property, is to prevent the maximally efficient allocation of IP resources.

Keeping Cell Phones Affordable: Regulating The Private Sector's Contribution To Development, Rachael Moshman

Sustainable Development Law & Policy

No abstract provided.

Conflicts Credentialing: Hospitals And The Use Of Financial Considerations To Make Medical Staffing Decisions, James W. Marks, Jayme R. Matchinski

William Mitchell Law Review

The emerging practice of conflicts credentialing represents a significant change in the economic and professional interests of physicians and in the relationship between medical staffs and hospitals. In this article, the authors explain the interrelationship between the authority of hospitals and medical staffs to manage their respective affairs and the legal developments that have led toward conflicts credentialing. The authors next discuss the medical community’s reaction to conflicts credentialing and the legal challenges facing the use of economic factors in physician credentialing.

Player Restraints And Competition Law Throughout The World, Stephen F. Ross

Faculty Scholarship

This article reviews agreements among clubs participating in league sports in many countries throughout the world that limit competition for the services of players. Under the English common law (which governs in most of the British commonwealth), the competition law provisions of the European Union's governing treaty, the American Sherman Act, and the Canadian Competition Act, the governing standard is quite similar. Player restraints cab only be justified if they are related to a legitimate purpose, which is usually defined as one that demonstrably improves the consumer appeal for the sporting competition. Moreover, and significantly, player restraints must be reasonably …

A Model Of Abstract Cooperation In Games Of Uncertainty, Hillel Bavli

Fordham Urban Law Journal

The idea that evolutionary processes natrually propel a state of affairs toward a higher, perhaps more complex or advanced, state of affairs is one that may extend to any context characterized by a dynamic time frame, including ogliopoly moelds of repeated Prisoner's Dilemma. The author argues that, contrary to the popular assertion that coordinated pricing necessarily requires voluntary coordination, oligopoly markets may evolve to a state of cooperation—one of collective profit maximization—absent a conscious state of coordination among the players, or even knowledge of such cooperation. While Professor Donald Turner proposes a theory of cooperation based on forward-looking consideration of …

Trinko: Going All The Way, George A. Hay

Cornell Law Faculty Publications

Agency Character And Character Of Agency Guidelines: An Historical And Institutional Perspective, Hillary Greene

Faculty Articles and Papers

Though antitrust guidelines have become commonplace, their approach was novel when first introduced. In a 1964 front-page article entitled, Industries Will Get Merger Guidelines, The New York Times observed, 'An entirely new approach to the enforcement of the antitrust laws is about to be attempted by the Federal Trade Commission.' Similarly, the American Bar Association's 1968 Antitrust Developments treatise described these first antitrust agency guidelines as a new method to advise businessmen about how the FTC would gauge the competitiveness of mergers. In the nearly forty years since the introduction of the first merger guidelines, the federal antitrust agencies have …

When Does A Patent Right Become An Antitrust Wrong? Antitrust Liability For Refusals To Deal In Patented Goods, Aaron B. Rabinowitz

Richmond Journal of Law & Technology

[T]he benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.At the border of intellectual property monopolies and antitrust markets lies a field of dissonance yet to be harmonized by statute or the Supreme Court.

The Central American Free Trade Agreement: Free Trade Or Do Women Pay The Price?, Andrea Hunwick

Public Interest Law Reporter

No abstract provided.

The Ghost Of Telecommunications Past, Philip J. Weiser

Publications

Paul Starr's The Creation of the Media presents modern policymakers with an important opportunity to consider the historical lessons of the telecommunications industry. This Book Review underscores how Starr's book richly explains some key components of U.S. information policy - such as relying on an integrated strategy of intellectual property, antitrust law, and telecommunications policy - and that some historical lessons are misplaced as to today's environment - such as a categorical skepticism of vertical integration. Moreover, Starr's account of telecommunications history explains that the U.S.'s success in promoting innovation in the information industries reflects our reluctance to manage key …

The Ftaia And Empagran: What Next?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran I), the Supreme Court, vacating the D.C. Circuit's ruling, held that the Foreign Trade Antitrust Improvements Act ("FTAIA") precludes courts from exercising subject matter jurisdiction over antitrust claims by foreign plaintiffs who allege unlawful conduct that "significantly and adversely affects both customers outside the United States and customers within the United States," if "the adverse foreign effect is independent of any adverse domestic effect;" that is, if "the conduct's domestic effects did not help to bring about that foreign injury." The narrowly crafted decision was tailored to the record …

Antitrust Remedies Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In the 115-year history of federal antitrust law, much has been written about substantive liability standards. Comparatively little has been written about antitrust remedies. This inattentiveness to remedy was underscored by the Microsoft case wherein the Antitrust Division, having successfully adjudicated Microsoft a monopolist, scrambled to fashion an appropriate remedy, first seeking to break up Microsoft and ultimately reversing itself and settling for a conduct decree. Putting aside the question of whether the relief in Microsoft was adequate, the fact is that the case law on equitable remedies in antitrust is sparse and dated, leaving critics to question whether …

Trend Forecast: Imitation Is A Legal Form Of Flattery-Louis Vuitton Malletier V. Dooney & Bourke, Inc., Sarah J. Kaufman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

For-Bid Scalping Online?: Anti-Scalping Legislation In An Internet Society, Daniel Glantz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Property, Aspen, And Refusals To Deal, Alan J. Meese

Faculty Publications

No abstract provided.

Digital First Sale: Friend Or Foe?, Eurie Hayes Smith Iv

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Monopolization, Exclusion, And The Theory Of The Firm, Alan J. Meese

Faculty Publications

No abstract provided.

Comparative Advertising In The United States And In France, Charlotte J. Romano

Northwestern Journal of International Law & Business

Comparative advertising has been widely used for over thirty years in the United States. By contrast, the use of this advertising format has traditionally been-and still is-very marginal in France. The term "comparative advertising" refers to any form of advertising in which a trademark owner draws a comparison between his product, service, or brand and that of a competitor. The central issue of this article is to determine why, despite identical guiding policies, comparative advertising remains unusual in France while it is commonplace in the United States. Attempting to answer that question unavoidably raises numerous related issues: can the two …

Past, Present, And Future Of Antitrust Enforcement At The Federal Trade Commission, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The period from 1970 to the present - roughly a third of a century - has witnessed profound changes in the quality of regulation at the Federal Trade Commission and a remarkable convergence of antitrust enforcement policy between left and right, and between primarily legal as opposed to primarily economic approaches. With respect to substantive law, areas of intellectual debate and uncertainty remain, but viewpoint differences that existed between the 1960s and the 1980s are today vastly reduced. In the 1960s, emphasis was on populist values, hostility to "Bigness," protection of competitors (especially small business) as opposed to the competitive …

Featuring The Three Tenors In La Triviata, Victor P. Goldberg

Faculty Scholarship

In the “Three Tenors” case the FTC found an agreement to be an antitrust violation despite the fact that there was no way it could be anticompetitive. The Commission failed to heed the lessons of Coase’s classic paper on the nature of the firm, making a sharp distinction between activities within a firm (legal) and across firm boundaries (not legal). Analytically, there should be no distinction. The decision to integrate activities by contract rather than ownership is a matter of relative transactions costs. Since the boundaries of the firm are, ultimately, an economic decision reflecting the costs and benefits of …