Antitrust and Trade Regulation Commons^™

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 …

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 …

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 …

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 …

Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher

Touro Law Review

Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, …

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.

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.

Brief Of Amici Curiae In Support Of Reversal On Question One, James Gibson

Law Faculty Publications

The Fourth Circuit’s decision to impose contributory liability Cox Communications, Inc. rests on a fundamental misapprehension of Cox’s role as a “conduit” Internet Service Provider. Conduits merely transmit data between endpoints; unlike content-hosting platforms like YouTube or search engines like Google, conduits do not store, curate, or control user content. They merely transmit data on behalf of third parties, and they have no ability to monitor the data they transmit. By treating Cox’s passive provision of Internet access and data transmission as a knowing, material contribution to infringement, the Fourth Circuit collapsed the crucial legal distinction between conduits and hosts, …

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.

Of Labor, Antitrust, And Why The Proposed House Settlement Will Not Solve The Ncaa’S Problem, Marc Edelman, Michael A. Carrier

Fordham Law Review

The National Collegiate Athletic Association (NCAA) recently settled three antitrust lawsuits. With a significant payout, it hopes to put its antitrust worries behind it. In doing so, the NCAA seeks to follow in the footsteps of the National Football League (NFL), which has enjoyed thirty years of labor peace. But there is a big difference between these two situations. The NFL’s 1993 settlement in White v. National Football League was shielded from antitrust scrutiny by the nonstatutory labor exemption, which encourages collective bargaining activity. No such exemption protects the NCAA’s settlement. This Essay explains why the NCAA cannot establish a …

Life After Employee-Status In College Sports, Marc Edelman, John T. Holden, Michael A. Mccann

Fordham Law Review

National Collegiate Athletic Association; NCAA; college sports; intercollegiate sports; college athletes; college-athlete employee; amateurism; worker; employee; employment status; collective bargaining; single-employer bargaining units; Multiemployer Bargaining Units; Joint Employer Bargaining Units; antitrust

Yars 18(32)

Yearbook of Antitrust and Regulatory Studies

YARS Vol. 18(32)

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

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 …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

From The Editors, Łukasz Gołąb, Mateusz Chołodecki, Leszek Borowiec

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

Editorial

Problemy Ekonomiczno-Prawne Związane Z Wejściem W Życie Ustawy O Doręczeniach Elektronicznych, Anastazja Drapata

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

The implementation of the Polish Electronic Delivery Act of 18 November 2020 presents significant technical and infrastructural challenges for public administration in Poland. While the Act aims to digitalize administrative proceedings, and has notably expedited case management, particularly during the COVID-19 pandemic, it has not resolved the issues of procedural delays and inactivity.

A pivotal development of this legislation is the establishment of a legal framework for electronic delivery addresses and public services, facilitating necessary legislative changes in administrative and judicial procedures. However, its entry into force was constantly delayed. The Act allows for the creation of electronic documents, secured …

Is There A Regulator In The Polish Electronic Delivery Market? The Role Of The President Of Uke, Mateusza Chołodecki

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

This paper examines the regulatory role of the President of the Office of Electronic Communications (UKE) within the electronic delivery market in Poland, focusing specifically on the statutory competencies granted by the Electronic Delivery Act. The paper identifies significant limitations of the President of UKE’s current regulatory scope, by analysing these competencies and their alignment with Poland’s postal and telecommunications regulatory frameworks. The analysis reveals that the regulatory powers of the President UKE that concern electronic delivery services are narrowly defined, primarily covering oversight over tariffs, T&Cs, and operator designation, without broader supervisory authority or clearly articulated regulatory objectives. Consequently, …

Czy Unijne Przepisy Zapewniają Równą Ochronę Praw Pasażerów Kolei I Lotnictwa? Analiza Porównawcza Rozporządzeń (We) 261/2004 I (Ue) 2021/782 W Zakresie Prawa Do Opieki I Pomocy, Zuzanna Kornacka

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

The purpose of this article is to examine and compare the level of protection afforded to, respectively, airline and railroad passengers in terms of their right to care and assistance on the basis of Regulations (EC) 261/2004 and (EU) 2021/782. The scope of these two legal acts is analyzed, in order to verify whether the protection they provide is comprehensive. The competencies comprising the right to assistance in these EU Regulations are discussed to identify whether they provide similar support for passengers experiencing difficulties in traveling via both modes of transportation. The analysis draws on doctrinal views and the case …