Antitrust and Trade Regulation Commons^™

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Utah Law Review

No abstract provided.

After Ebay: Valid Patents And The Economics Of Post-Trial Judicial Options, J R. Kearl

Utah Law Review

The Supreme Court’s eBay decision creates enormous uncertainty about whether the owner of a valid patent has an exclusive right in the face of actual infringement. The Court’s “traditional equitable” criteria for an injunction fail to consider the context where injunctive relief may be warranted: namely, litigation dealing with patents where a jury or court has found the in-suit patent to be valid and infringed and where, barring an injunction, there will be post-trial infringing uses by the defendant. Specifically, it is highly unlikely that a patent holder can show that it will be irreparably harmed or not be made …

At The Nexus Of Antitrust & Consumer Protection, Luke Herrine

Utah Law Review

This Essay uses Section 5 of the Federal Trade Commission Act to examine the theoretical and practical relationship between antitrust and consumer protection law. It argues that, since roughly 1980, there has been a hegemonic “neoliberal” framework, one that has in recent years been challenged by an emerging “moral economy” framework. The neoliberal framework conceptualizes antitrust as preventing firms from conspiring to throttle output, with a focus primarily on consumers’ interests in low prices, and consumer protection as making consumers informed, rational, and able to switch between competitors with relatively low cost. The moral economy framework conceptualizes both areas of …

Textualism As An Ally Of Antitrust Enforcement: Examples From Merger And Monopolization Law, Robert H. Lande

Utah Law Review

This Article will first briefly present an overview of the textualist method of statutory interpretation. It will then briefly engage in a textualist analysis of important portions of two antitrust statutes: Section 2 of the Sherman Act and Section 7 of the Clayton Act. At least in these areas, textualist analysis should, if anything, help re-invigorate antitrust enforcement.

Why Is Frand Hard?, Michael A. Carrier

Utah Law Review

There are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an …

Consumer-Facing Competition Remedies: Lessons From Consumer Law For Competition Law, Lauren E. Willis

Utah Law Review

Assigning consumers the task of disciplining markets is frequently attempted but rarely achieved. We teach financial literacy classes with the hope that consumers will avoid overly-risky and overly-costly financial products. We require calorie labels with the hope that consumers will use them to reduce obesity. We pre-select a no-overdraft default with the hope that consumers will stick with the default and avoid overdraft fees. None of these approaches are terribly effective at achieving the ends sought because, in each instance, the intervention—the classes, the disclosures, or the defaults—produce unexpected heterogeneous consumer responses and are met with a barrage of firm …

Why Economists Should Support Populist Antitrust Goals, Mark Glick, Gabriel A. Lozada, Darren Bush

Utah Law Review

Antitrust policy can be a powerful tool to tackle important social and economic problems. For decades antitrust enforcement has been shackled by the so-called Consumer Welfare Standard (“CWS”) that has limited the goals considered to be “legitimate.” The CWS limits antitrust goals to those that impact demand in markets, and primarily in output markets. Recently, new voices have come forward to suggest that antitrust policy should address several other important social objectives. Such goals include the traditional antitrust goals that motivated passage of the antitrust statutes, and which were discussed in Pre-Rehnquist Court opinions, including dispersion of economic and political …

Navigating Name, Image, And Likeness Policy In College Athletics – Issues And Solutions, Daniel Erber

Brooklyn Journal of Corporate, Financial & Commercial Law

College athletics, specifically the NCAA, has faced legal challenges throughout its history. In the wake of Alston and other Supreme Court decisions regarding antitrust violations tied to student-athlete benefits, many states proposed and passed laws explicitly allowing student-athletes at NCAA institutions to utilize their names, images, and likenesses for commercial purposes. With the state laws in direct conflict with NCAA rules, college sports entered an era of extreme uncertainty. While the NCAA attempts to maintain its grip on the commercial endeavors of student-athletes and member institutions, states and society are pushing a free market agenda geared towards liberalizing the economic …

Minor League With A Major Issue: How Baseball's Federal Antitrust Exemption Has Devastated Minor League Baseball, Hallie Arena

West Virginia Law Review Online

In 1922, the United States Supreme Court exempted Major League Baseball (“MLB”) from the Sherman Antitrust Act in the landmark decision Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. Despite growing criticism from the players, fans, and the courts, this exemption holds true today. Although MLB players have slowly been given greater contracting rights, minor league players have been left behind in this fight. MLB’s antitrust exemption negatively affects MiLB and allows league owners to exploit players for little salary, often forcing them to live at or below the poverty line. Poor living conditions, coupled …

Gamestopped: How Robinhood’S Gamestop Trading Halt Reveals The Complexities Of Retail Investor Protection, Neal Newman

Faculty Scholarship

Should brokers have the unfettered right to restrict investor trading? GameStop, a brick-and-mortar video game retailer, had been experiencing declining revenues since 2016. However, GameStop saw its share price climb almost 1000 percent in the span of a one- week period from January 21, 2021 to January 27, 2021 due to retail investors buying significant amounts of GameStop shares during that period. Melvin Capital, a hedge fund, ended up losing billions as they were betting that GameStop shares would lose value instead of increase—a practice referred to as short selling. On January 28, 2021, brokers inexplicably halted trading on GameStop …

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 …

Monopolizing Digital Commerce, Herbert Hovenkamp

William & Mary Law Review

Section 2 of the Sherman Act condemns firms who “monopolize,” “attempt to monopolize,” or “combine or conspire” to monopolize—all without explanation. Section 2 is the antitrust law’s only provision that reaches entirely unilateral conduct, although it has often been used to reach collaborative conduct as well. In general, § 2 requires greater amounts of individually held market power than do the other antitrust statutes, but it is less categorical about conduct. With one exception, however, the statute reads so broadly that criticisms of the nature that it is outdated cannot be based on faithful readings of the text.

The one …

The Ethics And Policy Of Personal Data Exchanges, Maria A. Staszkiewicz

Honors Theses (PPE)

This thesis explores the impact of personal-data-driven profit-making strategies on consumer rights and democratic institutions. The lag in regulatory efforts in fast-growing fields, such as big data analytics and machine learning, has enabled unprecedented access to control over individual consumers and social processes. The resulting power asymmetry characterizing the relationship of corporate persons to private clients poses a threat to privacy and democracy. This thesis assesses existing and emerging approaches to protecting personal data privacy, engages with the question of imposing moral duties toward customers on private sector enterprises, and proposes systems to strengthen regulatory measures. The urgent need for …

Overseas Primary Listing: U.S. Stock Markets As A Global Hub For Ipos?, Carlos Ragazzo, Rafael Costa

University of Miami Business Law Review

Between 2007 and 2021, several South American companies carried out IPOs outside their home countries, with the subsequent overseas primary listing of their shares on U.S. stock exchanges. The acceleration of this trend from January 2018 (with the IPO of PagSeguro Digital Ltd. on the New York Stock Exchange—NYSE) is not explained solely by the possibility of adopting dual-class shares structure for companies listed on U.S. stock exchanges. In this sense, factors such as: (1) biases and subjectivities in the decision-making process; (2) cultural proximity and history of successful precedents; (3) better valuation in comparison with local markets; and (4) …

Taking Care Of Business: An Empirical Examination Of The Top S&P 500 Companies And Their Role As Public Health Regulators During The Covid-19 Pandemic, Megan M. O’Malley

University of Miami Business Law Review

Data from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance.

The Power Of The Purse: Instigating Social Change Through Strategic Municipal Bond Investments, Jenna Reifler

University of Miami Business Law Review

Municipal bonds are generally understood as mutually beneficial for both issuer and holder—they allow cities to secure capital for local improvements and investors to earn reliable and tax-exempt profits. It turns out, however, that the lack of disclosure for issuing general obligation bonds presents the perfect camouflage for cities to secure funding despite their local social responsibility inadequacies.

Cities quietly shell out millions of dollars in settlements to the victims of police-misconduct. Largely unreported and untracked, many municipalities fund such settlements through general obligation bonds, which are colloquially termed police brutality bonds. As a result, and often unbeknownst to the …

Impediments To Renewed And Reinvigorated Antitrust Enforcement, Edward D. Cavanagh

William & Mary Business Law Review

Antitrust Division head Jonathan Kanter recently proclaimed that “the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun.” Federal enforcers have indeed been active; the DOJ has sued Google in two separate actions, and the FTC has brought an action against Facebook.

While bringing these cases is an important first step to achieving a more robust antitrust enforcement regime, a significant obstacle to an antitrust renaissance remains—overcoming the strong gravitational pull of Chicago School theory that has dominated antitrust thought for the past half-century. Chicago School principles have not kept …

About-Face: How Facebook’S Restrictions On User Posts Could Violate Antitrust Law, Efrem Berk

Northwestern Journal of Technology and Intellectual Property

This Note examines whether Facebook’s restrictions on its users’ posts are subject to Sherman Act § 2. This Note looks at the economic activity generated by social media activity and argues that posts are commerce. While this piece finds that current antitrust jurisprudence likely favors Facebook, an alternative approach sought by some antitrust scholars could influence judges to preclude the platform’s restrictions.

Changing The Game: The Emergence Of Nil Contracts In Collegiate Athletics And The Continued Efficacy Of Title Ix, Leeden Rukstalis

Washington and Lee Journal of Civil Rights and Social Justice

On June 30, 2021, the National Collegiate Athletic Association (“NCAA”) suspended a 115-year prohibition on college athletes’ ability to profit from the use of their names, images, and likenesses (“NIL”). Historically, NCAA eligibility was determined by an athlete’s amateur status. Student athletes forewent compensation to preserve a line between professional and college sports. Today, the NCAA’s novel NIL policy recognizes an athlete’s right to publicity and allows them to share in the billions of dollars it generates every year. According to estimates, college athletes earned $917 million in the first year of NIL activity. By 2023, the NIL market is …

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Vanderbilt Law Review

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …