Antitrust and Trade Regulation Commons^™

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …

Ftc V. Amazon: A Turning Point For Antitrust Law?, Matthew Cole Conover

Washington and Lee Journal of Civil Rights and Social Justice

The United States is experiencing crippling economic inequalities that harken back to the Gilded Age. For the first time, legal scholars have turned to antitrust law to reverse this alarming trend. These scholars, including current Federal Trade Commission Chairwoman Lina Khan, are testing this ambitious theory in the E-commerce industry. E-commerce is a market largely dominated by one company: Amazon. With its dominance, Amazon lures small businesses into its third-party seller marketplace, where it controls those business’s prices and punishes those that resist. Lina Kahn’s FTC has formally launched its litigation campaign against Amazon, claiming that the company has violated …

Jerking The Rug Out From Under A Trade Secret Licensee: Is Transfer Of The Patent A Remedy?, Henry H. Perritt Jr.

Michigan Technology Law Review

Predominantly state trade secret law and exclusively federal patent law enjoy a sometimes-uneasy coexistence. Inventions almost always are secret until and unless they are patented; publicizing them for too long will negate the availability of a patent. Misappropriation of trade secrets often is accompanied by application for a patent on the same subject matter. This commonly occurs when an employee gains access to his employer’s trade secrets, quits, and then applies for a patent on them in his own name, maybe after going to work for a competitor of the original employer. It is also conceivable that the owner of …

Without Noncompete Agreements, Can Employers Keep A (Trade) Secret?, Cynthia L. Dahl

American University Business Law Review

Data, algorithms, and proprietary information and processes are critical assets for increasing numbers of companies. Since information assets often cannot be protected through patent, companies may instead rely on trade secret law. To meet the legal standard of a trade secret, companies must show that their information assets confer a competitive advantage to them by virtue of the secret status, and that they have taken reasonable measures to preserve the secrecy.

One of the reliable methods companies use to maintain secrecy, and to show that they have taken the required reasonable measures, is the use of restrictive covenants. Traditionally, companies …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

Nil Education At Universities As Student Athletes Face The Wild West, Ainsworth A. Bailey, Geoffrey Christopher Rapp, Shawn Tysiak

Fordham Law Review

No abstract provided.

Vol. 15(1) - Cały Numer

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

Vol. 15(1)

Pitching For Reform: Cangrejeros' Push To Level The Legal Playing Field By Challenging Baseball's Antitrust Exemption, Justin P. Chaljub

Fordham Journal of Corporate & Financial Law

For over one-hundred years, professional baseball has enjoyed an antitrust exemption unique among American major sports leagues, stemming from Supreme Court decisions in Federal Baseball and its progeny. This exemption has significantly influenced the evolution and structure of Major League Baseball (MLB). Despite extensive criticism and challenges for judicial and legislative reform, the exemption persists today.

However, new efforts have emerged to comprehensively disrupt this framework. In 2023, Nostalgic Partners was brought and structured to reach the U.S. Supreme Court. Plaintiffs anticipated they would lose at the lower court levels and garnered widespread support for the Court to grant a …

The Case Against Surge Pricing, Ramsi A. Woodcock

Law Faculty Scholarly Articles

Surge pricing—using data and algorithms to raise prices in response to unexpected increases in demand—has spread across the economy in recent years, from Amazon and Disney World to commuter highways and, of course, Uber, which is infamous for surge pricing rides. Companies claim that surge pricing equilibrates supply and demand, but that is impossible, at least in the short run when demand unexpectedly outstrips supply. What surge pricing really does is to ration existing supply based on ability to pay. That is both distributively unjust and potentially inefficient. It should also be considered a violation of the antitrust laws because …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Last Line Of A Weak Defense: The Waning Force Of The Ncaa's Procompetitive Defense Of Amateurism In § 1 Compensation Challenges, Morgan Small

American University Law Review

The Supreme Court in NCAA v. Alston determined that the NCAA’s education-related compensation restrictions violated § 1 of the Sherman Act. The Court, however, did not scrutinize the legality of the NCAA’s athletic-related compensation restrictions, begging the question: when will the Supreme Court, if ever, stop presuming the validity of the NCAA’s athletic-related compensation restrictions because they allegedly ensure that college athletics remain amateur?

This Comment examines this question in further detail by cataloging the Court’s antitrust jurisprudence involving § 1 compensation challenges and what this jurisprudence may spell for future litigation in a college athletics landscape increasingly defined by …

Yars 18(32)

Yearbook of Antitrust and Regulatory Studies

YARS Vol. 18(32)

Doręczenie Wydruku Pisma Uzyskanego Z Systemu Teleinformatycznego Na Podstawie Art. 393 K.P.A. Uwagi Na Temat Miejsca W Nowej Strukturze Doręczeń, Agnieszka Skóra

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

Article 393 of the Polish Administrative Proceedings Act (k.p.a.) has played an important role in the digitization of Polish public administration bodies, as a solution to facilitate the functioning of these institutions in the face of technological change. It also ensured that documents could be delivered to people who are digitally excluded, or otherwise not ready to use electronic means of communication. However, in the context of the change in the wording (from 1 January 2025) of Articles 39 and 391 k.p.a., with which Article 393 k.p.a. was immanently linked, its functioning is questionable. In this study, the author characterizes …

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Neo-Brandeis Goes To Washington: A Provisional Assessment Of The Biden Administration’S Antitrust Record, Daniel A. Crane

Articles

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas. At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians, who vowed to break antitrust’s …

Transport A Kryzys Klimatyczny: Wyzwania, Bariery I Rekomendowane Kierunki Transformacji Systemu Mobilności W Polsce, Stefan A. Jarecki, Jakub Majewski

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

The article addresses the regulatory challenges facing the transport sector in the context of the climate crisis. It presents a comprehensive set of recommendations, emphasising the role of central and local governments in establishing relevant legal frameworks, spatial planning, and promoting sustainable mobility. Special importance is given to the development of rail transport as the most efficient alternative to road transport – both for freight and passenger services. The need to enhance the competitiveness of rail, and ensure a level playing field for all modes of transport, is also highlighted.

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Fútbol Profesional, Derecho De La Competencia Y 'Fair Play', Stephen Ross

Faculty Scholarship

El presente ensayo examina la relación entre el derecho de la competencia y la noción de «Fair Play» en el ámbito del fútbol profesional. El autor comienza analizando el significado lingüístico y filosófico del término «Fair Play» y valorando cómo las diferentes interpretaciones de esta noción pueden influir en la percepción de lo que se entiende por justicia en el deporte. A continuación, compara la aplicación del derecho de la competencia en EE.UU. y Europa, destacando que, aunque hay diferencias, no existe un verdadero conflicto entre la noción de «Fair Play» y la normativa en materia de competencia. Finalmente, defiende …

Enforcing International Humanitarian Law Through The Business Responsibility To Respect Human Rights, Tara Van Ho

Cardozo International & Comparative Law Review

Insulation produced by the Danish company Rockwool or its Russian subsidiary lines thirty-one Russian Navy warships. Though not a weapon, this material is essential to the vessels' operation. Did Rockwool have a responsibility under international law to stop the transfer of the insulation to the Russian Navy before Russia's 2022 invasion of Ukraine? This article examines the business responsibilities under the 2011 United Nations Guiding Principles on Business and Human Rights ("UNGPs'). In doing so, the article finds that the business responsibility to respect human rights in the UNGPs provides a strong mechanism for enforcing international humanitarian law ("IHL'). However, …

Duped: The Implications Of The Proliferaiton Of Superfake Luxury Goods And What Consumers May Not Have Considered, Riann Colbert

Cardozo Arts & Entertainment Law Journal

The proliferation of "Superfake" luxury goods, which are high-quality counterfeit items nearly indistinguishable from authentic products, poses significant challenges to trademark law, consumer protection, and the broader economy. These items, often sold through e-commerce platforms, not only undermine legitimate businesses but also expose consumers to health risks, support organized crime, and perpetuate environmental harm. The note advocates for enhanced legal frameworks and consumer education to mitigate these issues.

Three-Stripe Life: How Adidas Can Act As A Model In Trademark Disputes By Promoting Internal Alternative Dispute Resolutions, Adam Gaudet

Cardozo Journal of Conflict Resolution

This Note will propose that large brands with broad trademarks develop internal strategies and departments which facilitate preemptive mediation and negotiations with smaller designers, ultimately deescalating disputes before any formal legal issues arise. These negotiations and mediations could lead to brand collaborations and new business ventures, could persuade smaller brands to stop their intellectual property infringement, and, in the least ideal situation, lead to a lawsuit. The strategies outlined in this Note, while focused on Adidas, can be applied by other fashion companies as well, as large brands often own many broad trademarks that small businesses might accidentally use. Businesses …

How To Beat The Nfl’S Best Defense: Attacking The Mass Arbitration Phenomenon With Class Arbitration, Thomas Riley

Cardozo Journal of Conflict Resolution

During his seventeen-year tenure as Commissioner of the National Football League (NFL), Roger Goodell never testified at trial. However, that changed when a class of plaintiffs sued the NFL for antitrust violations, alleging the League artificially inflated the cost of its viewership package—NFL Sunday Ticket—and thereby harmed consumers. NFL Sunday Ticket is described as a “premium sports package” that allows fans to watch out-of-market games they otherwise would not be able to view in their current market. This David and Goliath moment was a chance to discipline the pricing of one of the most popular television products in the United …

"The Gift Of A Golden Voice": Shaping The Right Of Publicity To Protect Performers From A.I. Abuses, Sebastian Saavedra

Cardozo Arts & Entertainment Law Journal

The note explores the evolving nature of the right of publicity, a unique area of intellectual property and privacy law that protects individuals' control over their likeness and persona. It examines the challenges posed by emerging technologies, particularly AI-generated content, and advocates for a balanced approach that integrates elements from trademark and copyright law while respecting First Amendment rights. The analysis emphasizes the need to protect performers' rights to their public image without undermining established legal frameworks.

Can Commercials Be Art? An Analysis Of Intellectual Property Preawareness In The Barbie Era, Shreya Kalidindi

Cardozo Arts & Entertainment Law Journal

The note examines the evolution of advertising, particularly native advertising, and critiques the inadequacy of current regulatory frameworks in addressing its deceptive potential. It highlights how modern advertising practices, such as product placement in films like Barbie, blur the line between commercial speech and artistic expression, challenging the Federal Trade Commission’s (FTC) ability to protect consumers. The analysis argues that strengthening existing regulations is insufficient and advocates for empowering consumers to make informed decisions, as the legal system struggles to keep pace with innovative advertising strategies.