Antitrust and Trade Regulation Commons^™

Antitrust Law And Healthcare Consolidation: Case Analyses Of U.S. Hospital And Insurance Mergers, Francesca Meek

Honors Projects

Rising healthcare costs in the United States have intensified concerns about hospital consolidation and its effects on market competition. This paper examines the application of antitrust law to horizontal mergers involving hospitals and health insurers, focusing on how courts evaluate proposed mergers under Section 7 of the Clayton Act. Using a qualitative case study approach, the study analyzes eight major federal antitrust cases from the past two decades to determine how courts assess market concentration, competitive effects, and merger defenses.

The findings show that the Federal Trade Commission (FTC) and Department of Justice (DOJ) were successful in six of the …

It’S Getting Too “Messi”: The Pending Litigation That Should Lead Major League Soccer To Finally Abandon Its Single Entity Structure, Aaron Glas

University of Miami Law Review

Despite being the most popular sport worldwide, soccer has never attained that level of popularity in the United States, lagging significantly behind sports like football, basketball, and baseball. Major League Soccer (“MLS”) was founded in 1995 in an effort to establish a viable, long-term professional soccer league in the United States. It was structured as a single entity to keep costs low, promote an even playing field, and avoid costly antitrust suits brought by its players. The United States Soccer Federation (“USSF”) helped insulate the league from competition in its infancy, but MLS is now a completely different league from …

Cloudy Oversight: How Administrative Conflict Over International Airline Alliances’ Antitrust Immunity Harms Consumers Of Commercial Air Transportation., Hamin Jeong

American University Business Law Review

Antitrust law governs and guides how regulatory agencies should scrutinize unfair, monopolistic corporate behavior. However, when several different agencies are tasked with enforcing the same legal principles, different interpretations of such principles inevitably arise.

 The U.S. Department of Justice (DOJ) acts as the main body that enforces antitrust actions in the domestic airline industry, but there is an exception to the general rule. Congress delegated the U.S. Department of Transportation (DOT) the authority to grant antitrust immunity to international airline alliances, which form when domestic and foreign airlines partner to increase flight services between their respective nations.

However, as codified …

The Invisible Chains: Framing Abuse Of Dominant Position In Labor Markets, Giulia Mangiafico

Yearbook of Antitrust and Regulatory Studies

This paper examines how the concept of abuse of dominant position can be applied to the labour markets, where demand-side concentration and supply-side fragmentation generate monopsonistic dynamics that suppress wages, limit mobility, and reduce job security. It argues that traditional antitrust tools can be adapted to labour-specific contexts by redefining market boundaries through commuting zones, occupational substitutability, and recognition of artificial fragmentation. The study also addresses how exploitative practices such as non-compete agreements illustrate the concrete impact of employer power, and it highlights the need for a more coherent regulatory approach. Ultimately, it suggests that competition law, when enforced alongside …

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 …

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's progeny …

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

Super-Engaged: From Presidential Task Forces To The Nfala, Kaelyne Yumul Wietelman

One More Cold Call: An IU Maurer School of Law Alumni Podcast (2021-2022)

Kaelyne Yumul Wietelman, JD 2019, an associate at Kelley Drye in Washington DC, provides advice on how to balance a practice at a highly respected firm with active community and volunteer engagement. In this episode we hear about Kaelyn’s work with the American Bar Foundation and the National Filipino American Lawyers Association.

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

Scholarly Articles in Law Reviews & Journals

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 anticompetitive 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 that regulation can supplement antitrust law in fostering competition.

Will The Supreme Court Recover Its Own Fumble? How Alston Can Repair The Damage Resulting From Ncaa's Sports League Exemption, Alan J. Meese

Faculty Publications

Horizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create. In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”), the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues. The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA. This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule …

Navigating The Transition To A More Innovation-Centric Antitrust (Review Of Richard J. Gilbert, Innovation Matters), Jonathan Baker

Book Reviews

Review of Richard J. Gilbert Innovation Matters: Competition Policy for the High-Technology Economy MIT Press 2020

Big Pharma, Big Problems: Covid-19 Heightens Patent-Antitrust Tension Caused By Reverse Payments, Hannah M. Lasting

Seattle University Law Review

In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard …

A Monopoly Of Thought—How Growing Anticompetitive Practices On The Internet Affect Creative Work, Laurel Brown

Seattle University Law Review

This Note will address how dominant Internet companies detrimentally impact creative work and how legal solutions might be employed to combat the damage inflicted by online monopolies. Part I will focus on how certain Internet companies became dominant, showing an evolution from egalitarian ideals to the consolidated control of the World Wide Web (the web) by companies like Google, Facebook, and Amazon. In Part II, this Note will focus on how two particular companies—Google and Facebook—affect creative endeavors in their control of access to audiences and by determining the economics of content production on the Internet. Part III details what …

Requiem For A Lightweight: How Ncaa Continues To Distort Antitrust Doctrine, Alan J. Meese

Faculty Publications

The Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars, and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the rule of reason because they produced significant economic harm without offsetting benefits. In so …

Oligopoly Coordination, Economic Analysis, And The Prophylactic Role Of Horizontal Merger Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

For decades, the major United States airlines have raised passenger fares through coordinated fare-setting when their route networks overlap, according to the United States Department of Justice. Through its review of company documents and testimony, the Justice Department found that when major airlines have overlapping route networks, they respond to rivals’ price changes across multiple routes and thereby discourage competition from their rivals. A recent empirical study reached a similar conclusion: It found that fares have increased for this reason on more than 1000 routes nationwide and even that American and Delta, two airlines with substantial route overlaps, have come …

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …

After Forty Years Of Antitrust Revision And Apple Inc. V. Pepper, What Now Illinois Brick?, Jeffrey L. Harrison

William & Mary Business Law Review

Nineteen seventy-seven was a paradigm-shifting year in antitrust law. Decisions by the Supreme Court greatly limited the type of parties who could successfully bring antitrust actions and what types of activities would violate the antitrust laws. First, in January of that year, the Court, in Brunswick v. Pueblo Bowl-O-Mat, ruled that to mount a case the plaintiff had to have suffered an antitrust injury. In other words, even if the antitrust laws were violated, the party raising the issue had to have suffered the type of harm the laws were designed to avoid. Then in a fourteen day span …

Consumer Welfare & The Rule Of Law: The Case Against The New Populist Antitrust Movement, Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout, Joshua D. Wright

Pepperdine Law Review

Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to rising income inequality, declining wages, and increasing economic and political concentration. Seizing on Americans’ fears about changes to the modern US economy, proponents of populist antitrust policies assert the need to fundamentally reshape how we apply our nation’s competition laws in order to implement a variety of prescriptions necessary to remedy these perceived social ills. The proposals are varied and expansive but have the unifying theme of …

Joint Response To The House Judiciary Committee On The State Of Antitrust Law And Implications For Protecting Competition In Digital Markets, Jonathan Baker, Joseph Farrell, Andrew Gavil, Martin Gaynor, Michael Kades, Michael Katz, Gene Kimmelman, A. Melamed, Nancy Rose, Steven Salop, Fiona Scott Morton, Carl Shapiro

Legislative Testimony & Comments

Economic research establishes that market power is now a serious problem. Growing market power harms consumers and workers, slows innovation, and limits productivity growth. Market power is on the rise in a number of major industries, including, for example, airlines, brewing, and hospitals, where multiple horizontal mergers that were allowed to proceed without antitrust challenge have markedly increased concentration in important markets and facilitated the exercise of market power. Exclusionary conduct by dominant companies that stifles competition from actual and potential rivals — including nascent rivals with capabilities for challenging a dominant firm’s market power and firms with competing R&D …

Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).

The Inefficiency Of Quasi-Per Se Rules: Regulating Information Exchange In Eu And U.S. Antitrust Law, Kenneth Khoo, Jerrold Tsin Howe Soh

Research Collection Yong Pung How School Of Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the relevant approach under …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

William & Mary Law Review

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …

The Present New Antitrust Era, Barak Orbach

William & Mary Law Review

Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great …

Antitrust And The Politics Of State Action, Thomas B. Nachbar

William & Mary Law Review

In North Carolina State Board of Dental Examiners, the Court refused to exempt the board from the second element of Parker immunity—active supervision by the state—because the Board was made up largely of “active market participants.” This Article argues that the “active market participant” rule laid out in North Carolina State Board, while intuitively appealing, ignores important political values represented by antitrust law, values most evident in the context of state action immunity. By focusing on the potential market harm from self-interested regulators, the Court ignored a series of political harms inherent in the structure of the North …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

William & Mary Law Review

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each other (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

William & Mary Law Review

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

William & Mary Law Review

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …