Antitrust and Trade Regulation Commons^™

Network Neutrality Between False Positives And False Negatives: Introducing A European Approach To American Broadband Markets, Jasper P. Sluijs

Federal Communications Law Journal

Network neutrality has become a contentious issue both in Europe and the United States. Regulators on both sides of the Atlantic face digital divides in their society, and are confronted with potentially conflicting policy goals-to incentivize private investment in next-generation broadband while maintaining "neutral" and competitive broadband networks.

This Article compares nascent American and European network neutrality policy in terms of regulatory error costs. Emerging markets, such as broadband, are more likely to be affected by regulatory errors, and these errors have graver consequences in emerging markets than in regular markets. U.S. telecommunications policy traditionally has advanced a trial-and-error approach …

Universal Service In The United States: A Focus On Mobile Communications, Steven G. Parsons, James Bixby

Federal Communications Law Journal

The concept of universal service, providing affordable telecommunications to all citizens, has a long and changing history in the United States. Prior to the Telecommunications Act of 1996, efforts to achieve universal service were largely based on a complex web of implicit subsidies to basic landline local exchange residential service. The Act expanded and codified the concept of universal service and made the subsidies largely explicit. This Article evaluates the possible economic rationales for subsidizing voice communications and find them lacking. This Article argues that the weak rationale for subsidizing basic voice communications makes it critical that U.S. universal-service policy …

Transplanting Antitrust In China: Economic Transition, Market Structure, And State Control, Wentong Zheng

UF Law Faculty Publications

This Article examines the compatibility of Western antitrust models as incorporated in China's first comprehensive antitrust law – the Antimonopoly Law ("AML") – with China's local conditions. It identifies three forces that shape competition law and policy in China: China's current transitional stage, China's market structures, and pervasive state control in China's economy. This Article discusses how these forces have limited the applicability of Western antitrust models to China in three major areas of antitrust: cartels, abuse of dominant market position, and merger review. Specifically, it details how these forces have prevented China from pursuing a rigorous anti-cartel policy, how …

Optimal Antitrust Enforcement, Dynamic Competition, And Changing Economic Conditions, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

The recent financial crisis and recession provide an opportunity to reexamine the dynamic versus static efficiency tradeoff in antitrust enforcement policy. We examine implications of the optimal antitrust enforcement model when dynamic efficiency is incorporated. The “dynamic enforcement model” examined here provides a positive theory of Section 2 doctrine, some suggestions for modifying enforcement in light of its dynamic costs, and implies antitrust enforcers should put a greater weight on dynamic efficiency during recessions.

The Challenge Of Interpreting 'Wto-Plus' Provisions, Julia Ya Qin

Law Faculty Research Publications

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent rules for China than generally applicable WTO disciplines. These ‘WTO-plus’ provisions have already been involved in several WTO disputes. In the light of these disputes, the paper analyzes the interpretive challenge presented by the Protocol and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. The paper then proposes three working principles that may help to interpret the WTO-plus provisions of the Protocol in a coherent and systematic manner.

The Impact Of China's Antitrust Law And Other Competition Policies On U.S. Companies, Susan Beth Farmer

Faculty Scholarship

This article is based on the author's testimony for part of the hearings on “The Impact of China’s Antitrust Law and Other Competition Policies On U.S. Companies,” held by the House Committee on the Judiciary, Subcommittee on Courts and Competition Policy on July 13, 2010. It describes developments in the enforcement and application of the Chinese Anti-Monopoly Law, interpretation and enforcement during the two years since the AML came into effect, with particular attention to merger review. It comments on the organization and staffing of the enforcement agencies and the publication of numerous procedures, guidelines and regulations, which suggests that …

Pharmaceutical Reverse Payment Settlements: Presumptions, Procedural Burdens, And Covenants Not To Sue Generic Drug Manufacturers, Catherine J. K. Sandoval

Faculty Publications

This Article analyzes recent developments in antitrust law, focusing on agreements between pharmaceutical patent holders and generic drug manufacturers that require a generic manufacturer to delay its market entry in exchange for a payment or other consideration from the patent holder. A predictable consequence of settlements that delay the marketing of a generic drug is that prices for the patented drug will remain higher than if the generic competitor had prevailed in its challenge to the patent's validity or the patent holder had failed to show that the generic infringed on its patent. Analysis of the legality of these settlements …

Patent Pools, Rand Commitments, And The Problematics Of Price Discrimination, Daniel A. Crane

Book Chapters

The social welfare problematics of patent pooling by competitors are well known. Competitor patent pooling has the potential to create powerful efficiencies by eliminating holdout problems and blocking positions and reducing transactions costs from licensing negotiations. At the same time, competitors can use patent pools to cartelize in a variety of ways, for example by fixing prices, entrenching patents of dubious validity, and discouraging rivalry for innovation. Determining legal norms capable of capturing the efficiencies without enabling cartels has not proven easy.

Perhaps because of the practical difficulty of separating pro-competitive from anticompetitive pools, antitrust scrutiny has swung from extreme …

Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane

Articles

The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …

Strange Bedfellows: How The Ncaa And Ea Sports May Have Violated Antitrust And Right Of Publicity Laws To Make A Profit At The Exploitation Of Intercollegiate Amateurism, Andrew B. Carrabis

Barry Law Review

No abstract provided.

D Is For Digitize: An Introduction, James Grimmelmann

Cornell Law Faculty Publications

This symposium issue of the New York Law School Law Review collects seven articles springing from the D Is for Digitize conference on the Google Books lawsuit and settlement, held at New York Law School October 8-10, 2009. In the spirit of Chaucer's "good feyth," thirty panelists and over one hundred attendees (plus dozens more watching online) gathered to discuss the legal and social issues raised by the proposed settlement. For three days, lawyers, academics, librarians, programmers, and public-interest advocates met for a rich, respectful, and wide-ranging conversation on this once-in-a-lifetime settlement. These articles continue that conversation.

Patent Pooling Behind The Veil Of Uncertainty: Antitrust, Competition Policy, And The Vaccine Industry, Hillary Greene

Faculty Articles and Papers

No abstract provided.

Designing Better Institutions To Enforce Competition Law: A Symposium Introduction, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Expansion And Contraction In Monopolization Law., Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Harmonizing Essential Facilities, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Antitrust Marathon Iv: With Authority, Spencer W. Waller

Faculty Publications & Other Works

No abstract provided.

An Overview And Comparative Analysis Of The Collective Bargaining Agreements In The Nba, Nfl, And Mlb, Terrence Caldwell

CMC Senior Theses

A historical overview of the collective bargaining process in the three major American sports, and a comparative analysis of the current collective bargaining agreements.

Rethinking Antitrust Policy Toward Rpm, John B. Kirkwood

Faculty Articles

Resale price maintenance is a particularly dangerous vertical intrabrand restraint. Because of its direct impact on price competition, it is likely to harm consumers in a substantial number of cases. At the same time, RPM is likely to benefit consumers in a significant number of other cases. Given these mixed effects, the ideal legal standard would distinguish between those instances in which RPM is anticompetitive and those in which it is procompetitive. While Leegin thought that the full rule of reason could play this role, it did not acknowledge what every scholar who has looked at the issue has found-that …

Bartosz Michalski, Międzynarodowa Koordynacja Polityki Konkurencji [International Co-Ordination Of Competition Policy], Wydawnictwo Difin, Warszawa 2009, 255 P., Rajmund Molski

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Grzegorz Materna, Pojęcie Przedsiębiorcy W Polskim I Europejskim Prawie Ochrony Konkurencji [The Notion Of An Entrepreneur In Polish And European Competition Law], Wolters Kluwer, Warszawa 2009, 296 P., Oskar Filipowski

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Competition Law – New Tendencies, New Tools And New Enforcement Methods From An Ec And Polish Perspective. Conference Of The Global Competition Law Centre In The Natolin Campus Of The College Of Europe. Report, Małgorzata Szwaj, Robert Gago

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Class Actions In The European Union?: Importing Lessons Learned From The United States' Experience Into European Community Competition Law, Tiffany Chieu

Cardozo Journal of International and Comparative Law

The note argues that the European Union (EU) needs to establish an effective collective redress mechanism to address the challenges faced by victims of anticompetitive practices, who currently struggle to obtain adequate compensation. While the European Commission has proposed opt-in collective redress and representative actions, the note contends that an opt-out mechanism, akin to the U.S. class action system, would better deter wrongdoing and enhance compensation without fostering excessive litigation. The EU can draw lessons from the U.S. experience but must tailor its approach to avoid the pitfalls of a litigious culture.

When Selling Your Personal Name Mark Extends To Selling Your Soul, Yvette Joy Liebesman

All Faculty Scholarship

Identifying one’s business with one’s personal name has long been a practice in the United States. As Personal Name Marks have become increasingly commodified, however, bargaining and deal-making has led more and more to transfers of rights which had previously been considered to be closely tied to the individual as a private person. This article posits that freedom of contract doctrine should not allow the complete alienation of all aspects of one’s name, but rather there should be limitations on how far parties may bargain, so that the purchaser cannot acquire the right to control the seller’s private activities. This …

"Per Se Illegality For Reverse Payment Settlements?" Review Of "Unsettling Drug Patent Settlements: A Framework For Presumptive Illegality, Daniel A. Crane

Reviews

Congratulations to Mike on a very fine book. I will confine my comments to Mike's chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review. Patent settlements involving "reverse payments" are a huge topic on which I and many others have spilled much ink already. Representative Bobby Rush (President Obama's erstwhile nemesis from Chicago's South Side) has just introduced legislation that would ban reverse payments.' I will not regurgitate my entire spiel on patent settlements here, but instead just try to highlight my essential disagreement with Mike …

Should We Learn To Love Insider Trading?, Timothy Reeb

Public Interest Law Reporter

No abstract provided.

Using Competition Law To Promote Access To Knowledge, Sean Flynn

Contributions to Books

One of the points of convergence among the many strands of the A2K movement is resistance to the one-size-fits-all ratcheting up of intellectual property provisions around the world. The resistance is grounded in analysis showing that intellectual property rules often create social costs that far outweigh their intended benefits. Much of the A2K movement’s advocacy for limitations of intellectual property rights is located within the field of intellectual property law – promoting the inclusion and use of balancing mechanisms within the laws granting intellectual property rights. But intellectual property rights are also shaped and limited by their interaction with other …

Desperate Doctors And Antitrust Laws: The Best Ways For Lawmakers To Simulate Physician Collective Bargaining, Cristina Olson

Nevada Law Journal

This Note will examine the legality of bills that open up physician collective bargaining—and what kind of provisions lawmakers should include to ensure legality and good policy. Given the current economic downturn, states must look for ways to make health insurance more affordable; a low-cost adjustment of collective bargaining rules may be a good solution. Such an adjustment would not be the only, or necessarily the best, solution to the healthcare cost crisis that exists in America, but it would be worthwhile for legislators to consider. Furthermore, if lawmakers craft legislation that puts state governments in charge of actively supervising …

The Private Antitrust Remedy: Lessons From The American Experience, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The treble damage remedy has been a centerpiece of private antitrust enforcement since the enactment of the Sherman Act in 1890. Aware that government resources were limited, Congress created the private right of action as a complement to public enforcement to assure the detection and prosecution of antitrust offenders. The private right of action has proven to be a very potent weapon in the civil enforcement arsenal. It is the very potency of the private remedy, however, that has made the private right of action a target of criticism by defendants and, more recently, the courts. Indeed, in the …

Recent Development: The Anti-Counterfeiting Trade Agreement, Emily Ayoob

Cardozo Arts & Entertainment Law Journal

No abstract provided.

As Long As "It" Is Not Counterfeit: Holding Ebay Liable For Secondary Trademark Infringement In The Wake Of Lvmh And Tiffany Inc., Ellie Mercado

Cardozo Arts & Entertainment Law Journal

No abstract provided.