Antitrust and Trade Regulation Commons^™

Modern Economic Analysis And Antitrust Law: A Guide, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This book presents a modern economics approach to antitrust law. It expands upon and supplements traditional legal analysis of antitrust law and policy. It does so by analyzing antitrust legal standards and case law through the lenses of industrial organization economics and decision theory. The work is intended to be a comprehensive introductory guide for students, practitioners, and anyone else interested in learning the core of modern antitrust economics. Understanding the economics of antitrust and decision theory and applying that reasoning to specific cases and issues are critical steps for successfully studying and practicing antitrust law and policy. It treats …

Antitrust And Economic Liberty, Doha Mekki

Center for Law and the Economy

Over the last few years, antitrust plaintiffs have won important victories in cases against digital platforms. They’ve won important cases involving real estate associations, elite private colleges, sports leagues, pharmaceutical companies, pork processors, and health insurers. In some cases, they have secured record-breaking jury verdicts and redress for harmed individuals.

The U.S. Department of Justice’s Antitrust Division has been active too. Last year, a federal court held that Google illegally maintained monopolies in general internet search and related search advertising markets. That case is about access to the information we see and use to make decisions about how we want …

Outbid By Technicality: How Streaming Services Weaken Legacy Media’S Matching Rights, Arthur Yolles

American University Business Law Review

Contracts for large-scale media distribution, such as those between sports leagues and broadcasting companies, often include matching rights—rights which guarantee a media distributor the ability to continue distributing content for as long as they can match the bids of third parties. These rights grant media distributors security in their relationships with rights-grantors, and they deliver a more predictable viewing experience for consumers. However, it is not always clear what constitutes a "match."

With the rise of streaming and big tech’s infiltration into legacy media strongholds such as live sports, the need to define a match is increasingly relevant. This Comment …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Rewriting The Monopoly Playbook: Implications Of U.S. V. Google For Antitrust Jurisprudence, Amilcar Torres

University of Cincinnati Law Review

No abstract provided.

Convergence Of Competition Law And Constitutional Rights: A Comparative Study Of The Whatsapp (India) And Facebook (Germany) Cases, Anush Ganesh, Krusha Bhatt

Yearbook of Antitrust and Regulatory Studies

As society advances toward a digital economy with increasing dependence on internet-based services, data has attained prominence as an essential currency supporting market power. This paper examines the emerging jurisprudence on excessive data collection by dominant digital platforms, comparing approaches developed in India and the European Union. The Indian approach, exemplified by the WhatsApp Privacy (2025) decision, integrates competition law with constitutional protections, particularly the right to privacy under Article 21 of the Indian Constitution. Meanwhile, the European approach, crystallized in the Facebook Germany case, integrates competition law with data protection principles enshrined in the General Data Protection Regulation (GDPR). …

Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Osenga

Law Faculty Publications

Amazon is magical. Search the online marketplace for pretty much anything you can imagine—not to mention all the things you never imagined; you will likely find what you were searching for and be able to have it delivered in two days or less. The magic is not just in Amazon’s vast array of innovative consumer products but also in its providing access to goods that are unavailable locally. An extreme example of Amazon’s ability to supply goods that were not locally available may be found in the pandemic lockdowns of 2020, when neighborhood stores were out of toilet paper and …

European Soft Law Instruments For Sustainability Agreements – Presentation Of Procedural Issues, Critical Analysis And Recommendations For The President Of The Occp, Agata Zawłocka-Turno

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

The article focuses on the procedural aspects of soft law tools employed by competition authorities in Europe, in order to help businesses advance sustainable development. In response to global challenges, such as the climate crisis, some authorities have introduced guidelines and informal guidance to enable companies to undertake pro-environmental collaboration, without breaching competition laws. Examples include guidelines from the European Commission, as well as those from the UK, Dutch, and French competition authorities. The article examines how effective these tools are, their impact on legal certainty for businesses, and explores how a similar approach could be implemented by the Polish …

European Origins Of The Polish Leniency Programme, Marcin Kulesza

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

The article presents a review of the Anglo-European origins of the Polish leniency programme, introduced into national antitrust legislation in 2004 in close connection with Poland’s accession to the EU. It presents the history and general shape of the US programme as well as the history of the EU programme, as well as the implementation of leniency into the 2000 Competition and Consumer Protection Act in force on 01/05/2024, the date of Poland’s accession to the EU.

The Creation Of Data Pools As Information Exchanges: Antitrust Concerns, Eugenio O. Peralta

Yearbook of Antitrust and Regulatory Studies

In the digital market, data is a critical resource, but its handling reveals a twosided situation. First, dominant platforms, known as gatekeepers, control major data sources. They may extract data unfairly from dependent partners, or abuse their market position by demanding excessive data for free services, and may also acquire companies solely for their data. The Digital Markets Act counters this by imposing data handling restrictions and portability duties. Conversely, nongatekeeper companies need data access to compete and innovate. The European Data Act addresses this, by granting data portability rights and promoting data sharing spaces, yet a more extensive data …

Vertical Restraints In An Amazon World, Martin Edwards

Dickinson Law Review (2017-Present)

Vertical restraints are a peculiarity, even among the dizzying array of contracts subject to antitrust scrutiny. While current law treats vertical restraints permissively, antitrust reformers have added this permissive treatment of vertical restraints to their list of proposed reforms. The reformers have softly proposed that courts apply a presumption of illegality standard for vertical restraints— greater scrutiny than the current standard, the rule of reason. This Article argues that doing so is inadvisable.

Producers and their consumers both want the same thing: the best overall product experience for the money. The critical economic functions of vertical restraints are to enable …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …

Focus On Competition Law Enforcement In E-Commerce Sector In Serbia, Darija Ognjenović, Ana Krstić Vasiljević

Yearbook of Antitrust and Regulatory Studies

Competition authorities in countries in development in Europe have a long way to go until they meet the EU standards. Although the local legislation in non-EU members is harmonized with EU legislation for the most part, the enforcement part is the one where obstacles are traditionally more challenging, and Serbia is no exception to this rule. Serbia has had its share of problems when trying to enforce rules on protection of competition, and some of those battles are still being fought, however, the national competition authority now also needs to face rapid changes that come with emerging markets, especially e-commerce. …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Commission’S Current Approach To Vertical Restraints In Light Of Regulation 2022/720 And Its Accompanying Guidelines, Jarosław Łukawski

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

Agreements concluded between undertakings operating at different levels of trade, for the purpose of distributing goods or services, constitute one of the most often used agreements in the economic environment. The commonness of these types of agreements explains why antitrust assessment of certain clauses contained therein is of fundamental importance for business practice. The scale on which distribution agreements are concluded was one of the reasons why, as early as 1965, certain types of distribution agreements were exempted under EU competition law from the prohibition of entering into competition restricting agreements. The approach to the assessment of such agreements has …

The Scope Of Duties And Powers Of The ‘Searching Authority’ And The ‘Searched Entity’ During The Search Process Initiated By The President Of Uokik – Discussion Of The Order Of Sokik (The Polish Competition Court) Of 22 November 2022 In Case Xvii Amz 92/22, Marcin Kulesza

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

The article presents a discussion of the order of SOKiK (the Polish Competition Court) of 22 November2022 in Case XVII Amz 92/22 which dismissed the complaint made by the searched party against UOKiK’s search activities, concerning the compatibility of the evidence obtained within the scope of the search, the possibility for the searched party to record the search activities (including from the point of view of the protection of third parties by the searchers), and the interference with the operation of the searched party by securing the necessary equipment and access to e-mail. The ruling may be relevant from the …

Anticompetitive Corporate Spin-Offs, Alexa Rosen Grealis

University of Miami Business Law Review

Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.

This Note posits that it is a mistake to …

Section 5 In Action: Reinvigorating The Ftc Act And The Rule Of Law, Lina M. Khan

Faculty Scholarship

The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.

This is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s …

Big Tech Is Why I Have (Anti)Trust Issues, Sophie Copenhaver

St. John's Law Review

(Excerpt)

“There is a cost to bigness, even if it’s not passed onto the consumer.” Antitrust laws were once an effective tool to break up companies that had grown too large. However, subsequent rulings have altered their original meaning, and they are no longer useful in regulating large technology companies such as Amazon, Facebook, and Google. This Note will argue that judicial interpretation of antitrust laws should no longer be governed by the consumer welfare standard. Rather, judges should apply a two-part test, focusing on the market power and any anticompetitive business practices of the defendant corporation.

Anticompetitive Merger Review, Samuel N. Weinstein

Articles

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

Anticompetitive Merger Review, Samuel N. Weinstein

Georgia Law Review

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

Race-Ing Antitrust, Bennett Capers, Greg Day

Scholarly Works

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Dynamic Pricing Algorithms, Consumer Harm, And Regulatory Response, Alexander Mackay, Samuel Weinstein

Articles

Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct. It demonstrates that algorithmic pricing can lead to higher prices for consumers in competitive markets and even in the absence of collusion. This consumer harm can be initiated by a single firm employing a superior pricing algorithm. Higher prices arise from …

Addictive Technology And Its Implications For Antitrust Enforcement, James Niels Rosenquist, Fiona M. Scott Morton, Samuel N. Weinstein

Articles

The advent of mobile devices and digital media platforms in the past decade represents the biggest shock to cognition in human history. Robust medical evidence is emerging that digital media platforms are addictive and, when used in excess, harmful to users’ mental health. Other types of addictive products, like tobacco and prescription drugs, are heavily regulated to protect consumers. Currently, there is no regulatory structure protecting digital media users from these harms. Antitrust enforcement and regulation that lowers entry barriers could help consumers of social media by increasing competition. Economic theory tells us that more choice in digital media will …

The Necessity In Antitrust Law, Gregory Day

Washington and Lee Law Review

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do.

In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this …

Voting Trusts And Antitrust: Rethinking The Role Of Shareholder Litigation In Public Regulation, From The 1880s To The 1930s, Laura Phillips Sawyer, Naomi R. Lamoreaux

Scholarly Works

In 1903 the American Telephone and Telegraph Company (AT&T) bought a majority interest in the Kellogg Switchboard and Supply Company, allegedly with the aim of eliminating competition in the telephone business. Perhaps it is not remarkable that the Illinois Supreme Court ruled this acquisition of an Illinois corporation to be illegal. What is noteworthy, however, is that the court took this step at the behest of a group of Kellogg’s minority shareholders who had filed suit to block the deal. Judges had long responded skeptically to such actions, worried that shareholders would clog the courts with challenges to managers’ decisions …

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.

Taking It With You: Platform Barriers To Entry And The Limits Of Data Portability, Gabriel Nicholas

Michigan Technology Law Review

Policymakers are faced with a vexing problem: how to increase competition in a tech sector dominated by a few giants. One answer proposed and adopted by regulators in the United States and abroad is to require large platforms to allow consumers to move their data from one platform to another, an approach known as data portability. Facebook, Google, Apple, and other major tech companies have enthusiastically supported data portability through their own technical and political initiatives. Today, data portability has taken hold as one of the go-to solutions to address the tech industry’s competition concerns.

This Article argues that despite …

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …