Antitrust and Trade Regulation Commons^™

Two Politicizations Of U.S. Antitrust Law, Frank Pasquale, Jacqueline Green

Brooklyn Journal of Corporate, Financial & Commercial Law

Critics have accused the Trump Department of Justice (DOJ) and Trump-appointee-chaired Federal Trade Commission (FTC) of populism, deviating from the more technocratic standards that governed agency interventions during the Bush and Obama eras. The broad brush of politicization has been applied to the administration's handling of a wide variety of topics, ranging from marijuana and media mergers, to landmark lawsuits against Google and Facebook. But a more discerning eye is necessary here. The concept of the political has both authoritarian and democratic registers. The federal Google and Facebook antitrust cases reflected the democratization of high technology antitrust. Meanwhile, troublingly authoritarian …

The Political Face Of Antitrust, Spencer Weber Waller, Jacob E. Morse

Brooklyn Journal of Corporate, Financial & Commercial Law

The last twenty years have brought antitrust back to the fore as a political issue of greater salience. Several booms and busts in the economy have highlighted the issue of corporate power in the economy and the political system. The growing influence and aggressiveness of the European Union and other jurisdictions’ competition laws have highlighted the relative retreat in the United States. Political movements in the United States have brought issues of corporate power and its abuse back into the public limelight and with them a greater political salience for antitrust in the election cycle of 2020.

Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …

A History Of Consumer Class Actions In State Courts, Anne Fleming

Brooklyn Journal of Corporate, Financial & Commercial Law

Most historians date the “modern” class action to the 1966 amendments to the Federal Rules of Civil Procedure. Yet, the class action or “representative suit” has a longer, unexplored history in the state courts. In the late 1930s and 1940s, a group of scrappy, first-generation lawyers tried to build their businesses by aggregating the small-sum claims of many consumers. The defendants in these cases were, for example, lenders who failed to comply with the technicalities of state disclosure mandates, and utility companies that charged consumers extra fees. Each consumer’s claim was small, but, as a group, the claims could yield …

Does The Ftc Have Blood On Its Hands? An Analysis Of Ftc Overreach And Abuse Of Power After Liu, Angel Reyes, Benjamin Hunter

Buffalo Law Review

Recent cases have called the Federal Trade Commission’s (“FTC”) enforcement methods into question. After a circuit split developed in the wake of the Seventh Circuit’s decision in Federal Trade Commission v. Credit Bureau Center, L.L.C., the Supreme Court responded by granting certiorari and consolidating the case with AMG Capital Management, L.L.C. v. Federal Trade Commission. The issue in these cases is whether Section 13(b) of the FTC Act authorizes the FTC to bypass the due process safeguards mandated by Congress in Sections 5 and 19 of the FTC Act and, in doing so, to conduct warrantless searches and seizures, unilaterally …

Google And Shifting Conceptions Of What It Means To Improve A Product, Ramsi Woodcock

Law Faculty Popular Media

Judges sometimes claim that they do not pick winners when they decide antitrust cases. Nothing could be further from the truth.

Competitive conduct by its nature harms competitors, and so if antitrust were merely to prohibit harm to competitors, antitrust would then destroy what it is meant to promote.

What antitrust prohibits, therefore, is not harm to competitors but rather harm to competitors that fails to improve products. Only in this way is antitrust able to distinguish between the good firm that harms competitors by making superior products that consumers love and that competitors cannot match and the bad firm …

From The Volume Editors, Michał Będkowski-Kozioł, Łukasz Gołąb, Magdalena Knapp

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

The Service Facilities In The Theory And Practice Of Public Economic Law, Przemysław Ciszak, Marcin Kraśniewski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article is devoted to the analysis of EU and national law in the field of access to service facilities. The paper aims to demonstrate that in the case of access to service facilities, which is a new instrument of economic regulation, we are dealing with an instrument of this regulation, which aims to develop goals other than ensuring competition in the rail sector. Second, the article’s purpose is to demonstrate that there is no unbundling in the relationship between a rail carrier and an operator of service facilities. Third, the paper indicates that access to service facilities is a …

A Few Comments In The Context Of Ensuring The Effectiveness Of Judgments Issued By The Court Of Justice Of The European Union Against The Background Of The Judgment In Case C-512/10 European Commission V Republic Of Poland, Łukasz Trochym

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

On 30 May 2013, the Court of Justice of the European Union issued a judgment in case C-512/10 European Commission v Republic of Poland, in which it stated that the Republic of Poland had failed to fulfill its obligations under Article 6 clause 2 and Article 7 item 3 of Directive 2001/14 EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of fees for the use of railway infrastructure and the granting of safety certificates by enabling, when calculating the fee for the minimum access package …

The So-Called ‘Market Pillar’ Of The 4th Railway Package And Its Implementation, Ewelina Nieznalska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The author analyses the most important changes introduced by the Act of February 13, 2020 amending the act on rail transport and certain other acts implemented by the market pillar of the 4th railway package. Discussed are the guarantees of independence and impartiality of the infrastructure manager, including the manager being part of a vertically integrated enterprise. Moreover, the paper covers also changes to the Act on railway transport in the field of licensing and access to railway infrastructure. The author also points to new forms of cooperation between the manager of the railway infrastructure, the railway operator and the …

Comments On The Background And State Of The ‘Railways Of The Future’ Legislation, Marek Stolorz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The purpose of this article is to examine the existence of legal solutions in Poland in the scope of the ‘railways of the future’ and to indicate a possible model of regulation of this matter. The term ‘railways of the future’ in the article means unconventional railways, characterized by significant differences from traditional railways, those are, in particular: magnetic railways and Hyperloop. In order to obtain a complete picture of the regulation of these means of transport, the regulations of the Federal Republic of Germany and the United States of America were examined. An analysis was also made of the …

Selected Formal And Legal Issues Related To The Implementation Of The Eu Directive On Interoperability And The Eu Directive On Safety, Michał Zięba

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article presents selected issues related to the implementation of the EU Interoperability Directive and the Safety Directive into the national legal system. Due to the need for administrative authorities to apply directly effective provisions of the 4th Railway Package, it may be necessary for these authorities to resolve conflicts with national law, which has not yet been adapted to EU solutions. Until Polish legislation is not fully adjusted to the regulations of the 4th Railway Package, it will be necessary to resolve conflict of laws rules ensuring the primacy of the application of EU provisions (in this case, implementing …

Impact Of Polish Covid-19 Legislation On The Rail Transport Sector, Iwona Miedzińska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

The article deals with the issue of the impact of legal regulations on preventing, counteracting and combating COVID-19 (according to the legal status as of November 24, 2020) on the rail transport sector in Poland, including operating and obtaining permits by railway companies. The analysis covers, in particular, the institutional and legal solutions contained in the provisions of the regulation introducing limitations in connection with the occurrence of the epidemic and in relevant acts.

M. Etel, A. Piszcz (Ed.), The Act On Road Transport. Commentary [Ustawa O Transporcie Drogowym. Komentarz], C.H. Beck, Warszawa 2020, Pp. 788, Grzegorz Kozieł

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Report On The Activity Of The Cars Climate And Energy Laboratory, Michał Krzykowski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …

Teamwork Or Collusion? Changing Antitrust Law To Permit Corporate Action On Climate Change, Dailey C. Koga

Washington Law Review

In an era of apprehension about climate change and the future of our planet, private companies are increasingly recognizing their role in increasing sustainability and lowering carbon emissions. To address this growing concern, some industry leaders are taking unilateral action to implement sustainable practices, but other companies have made agreements to fight emissions together. However, the Sherman Antitrust Act forbids agreements in restraint of trade. Further, antitrust law traditionally has refused to recognize ethical or moral justifications as legitimate reasons to permit anticompetitive agreements. As society’s concern for the planet grows and elected leaders move slower than needed to address …

The U.S. Dairy Industry In The 20th And 21st Century, George B. Frisvold

Journal of Food Law & Policy

At the beginning of the 20th Century, the U.S. dairy industry was comprised of millions of small-scale operations producing for their own or for very local consumption. By the end of the 20th Century, the industry was dominated by large-scale producers marketing products via large cooperatives. Improvements in transportation, advances in animal breeding and feeding technologies, and scale economies have allowed the industry to be more competitive on global markets, where there is now active international trade in dairy products. Major government programs to support dairy farm income date back to Depression-era problems facing the industry. Federal programs to support …

Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu

Vanderbilt Journal of Entertainment & Technology Law

Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …

Regulation And The Marginalist Revolution, Herbert Hovenkamp

Florida Law Review

The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every academic economist was a marginalist.

This Article considers the historical influence of marginalism on regulatory policy in the United States. My view is at odds with those who argue that marginalism saved capitalism by rationalizing it as a more defensible buttress against incipient socialism. While marginalism …

Vertical Mergers And Entrepreneurial Exit, D. Daniel Sokol

Florida Law Review

The idea that tech companies should be permitted to acquire nascent start-ups is under attack from antitrust populists. Yet, this debate on vertical mergers has overlooked important empirical contributions regarding innovation-related mergers in the strategy literature. This Article explores the extant empirical strategy literature, which generally identifies a procompetitive basis that supports vertical mergers as efficiency enhancing. This literature solidifies the current general vertical merger presumption that favors a procompetitive vertical merger policy for purposes of government merger enforcement. However, the procompetitive benefit for a presumption of merger approval for most vertical mergers does not end with the synthesis of …

The Progressive Turn: Politics And Policy In The Movement, Zephyr Teachout, Heather Gautney, Todd Melnick

Posters

Maloney Library lecture series, Behind the Book

The Role Of "Commercial Morality" In Trade Secret Doctrine, Lynda J. Oswald

Notre Dame Law Review

The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven …

From Humphrey's Executor To Seila Law: Ending Dual Federal Antitrust Authority, Alyson M. Cox

Notre Dame Law Review

This Note catalogues and proposes solutions to both the traditional concerns of efficiency and fairness and the modern constitutional problems posed by the current dual enforcement structure. Part I will compare the two antitrust agencies on the basis of their structures, accountability, statutory authority, and enforcement procedures, as well as evaluate potential concerns with vesting either agency with the sole authority to enforce civil antitrust laws. Part II will evaluate the perils of the current dual enforcement structure, exploring both the traditional arguments about efficiency and fairness and the modern constitutional challenges. Part III will evaluate potential legislative solutions to …

A Letter To The United States Government On Wealth And Income Inequality, Matthieu Maier

English Department: Research for Change - Wicked Problems in Our World

The United States of America is the world’s hotspot when it comes to income and wealth inequality. The wealthiest Americans are accumulating more and more wealth everyday while most Americans, who fall somewhere around middle-class, remain struggling and stagnant. The United States’ unchecked and deregulated system of capitalism is the root cause of our country’s inequities along with our government’s refusal to set aside self-interests and biases in order to combat these issues. From the inequality caused by rouged American systems larger issues are created that lead to complications in health, wages, standard of living, and race relations within our …

Protecting And Fostering Online Platform Competition: The Role Of Antitrust Law, Jonathan Baker

Contributions to Books

This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anti-competitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways regulation can supplement antitrust law in fostering competition.

Managerial Incentives To Repeatedly Collude: Frequency, Partners And Governance Rules, Catarina Marvao Dr., Chloé Le Coq

Articles

Cartel recidivism has been discovered among many convicted firms and is often perceived as a result of the limited efficiency of competition policy. The incentives for managers to collude have been linked to the firm’s organizational structure, the corporate culture, and the type of executive compensation packages in place.

To the extent that undetected cartels differ from detected ones in relevant dimensions, the current empirical results on illegal cartels are biased. To tackle this issue, we use a novel dataset of a population of cartels, which were legal in Sweden up until 1993. We contribute to the current debate on …

Investigating A Mega-Merger: Contextualizing The T-Mobile Merger To The Consumer Welfare Standard And The Competition Standard, Rahul Sukesh

Fordham Undergraduate Law Review

This Note explores the ruling of the U.S. Judge Victor Marrero in favor of the merger between T-Mobile and Sprint in terms of the specifics of the merger itself, and more broadly, the two dominant schools of antitrust thought: the consumer welfare standard and the competition standard and the specifics of the merger itself. Highlighting issues of antitrust law, this Note will first outline certain background concepts necessary to understand legal precedence around antitrust law. This Note will then trace the merger overtime and focus on how various opposition forces, citing violations of antitrust law, amassed a large body of …

Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert

Faculty Publications

"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market …

Shifting The Burden On Pay-For-Delay Challenges: Analyzing Ab 824’S Effects On Reverse Payment Settlements And Drug Costs, Kevin Wallentine

Loyola of Los Angeles Law Review

Antitrust scholars and agencies have recognized the anticompetitive impact of reverse payment settlements—in which branded and generic drug companies settle patent disputes, typically by delaying the entry of generics into the market. Despite clear competition concerns, these settlements are typically subject to a rule of reason analysis that puts the burden on enforcers and plaintiffs to prove their anticompetitive harms. Recent California legislation—AB 824—shifts the burden to the settling drug companies to prove their arrangement is not anticompetitive. AB 824 presents an opportunity for advocates of lower drug costs but still faces hurdles and shortfalls. This Note examines the efficacy …