Innovation, Entrepreneurship, And The Information Age, 2011 University of Colorado Law School
Innovation, Entrepreneurship, And The Information Age, Philip J. Weiser
Publications
This Essay makes the case for antitrust enforcement as a critical part of innovation policy and catalyzing entrepreneurship. It begins by explaining how innovation and entrepreneurship are drivers of economic growth and pillars of any effective economic strategy. With respect to antitrust enforcement and competition policy, it highlights the role that antitrust can play in opening up markets and addressing bottleneck monopolies, such as those at issue in the Microsoft and AT&T cases. It also explains that the most nettlesome challenge of such enforcement is devising appropriate and effective remedies, suggesting a few strategies to address that challenge.
Standardization And Markets: Just Exactly Who Is The Government, And Why Should Antitrust Care?, 2011 Cleveland State University
Standardization And Markets: Just Exactly Who Is The Government, And Why Should Antitrust Care?, Christopher L. Sagers
Law Faculty Articles and Essays
We take for granted that the basic choice in public policy is between allocation of resources by government bureaucracy, on the one hand, or allocation by markets, on the other. But that dichotomy is false, and at least under contemporary circumstances it is more accurate to describe the choice as between allocation by one kind of bureaucracy and allocation by a different kind of bureaucracy. This poses a problem for our antitrust policy, because it lacks any coherent guidance as to how to address those entities and transactions that are not governmental but are also not simply market-governed. This paper …
Towards An International Dialogue On The Institutional Side Of Antitrust, 2011 University of Colorado Law School
Towards An International Dialogue On The Institutional Side Of Antitrust, Philip J. Weiser
Publications
The antitrust world is now globalized and interconnected, requiring ever-increasing awareness as to how different agencies operate. The need to promote convergence on substantive doctrines has received, and will continue to receive, considerable attention. What is less appreciated is the need to focus on institutional design and practice, particularly as to the promotion of transparency and procedural fairness in the conduct of antitrust investigations. This Essay makes the case for such a focus, explaining how one of the healthy aspects of a multijurisdictional world is that sister agencies can challenge one another and model means of improving our institutional practices. …
A Re-Examination Of The Convergence Of Antitrust Law And Professional Sports Leagues, 2011 Villanova University Charles Widger School of Law
A Re-Examination Of The Convergence Of Antitrust Law And Professional Sports Leagues, Christine A. Miller
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
Is There Life After Death For Sports League Immunity - American Needle And Beyond, 2011 Villanova University Charles Widger School of Law
Is There Life After Death For Sports League Immunity - American Needle And Beyond, Meir Feder
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
Not With A Bang, But A Whimper: Congress's Proposal To Overturn The Supreme Court's Leegin Decision With The Discount Pricing Consumer Protection Act Of 2009, 2011 Villanova University Charles Widger School of Law
Not With A Bang, But A Whimper: Congress's Proposal To Overturn The Supreme Court's Leegin Decision With The Discount Pricing Consumer Protection Act Of 2009, Ariana E. Gillies
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
Novel Neutrality Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny , 2011 Cleveland State University
Novel Neutrality Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny , Jeffrey Jarosch
Cleveland State Law Review
This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate Internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (“API”). These investigations represent a new attempt to shift the network neutrality …
Patent Settlements, Risk, And Competition, 2011 Fordham University School of Law
Patent Settlements, Risk, And Competition, Mark R. Patterson
Faculty Scholarship
PowerPoint presentation delivered at the session, Patent Settlements: The Issues Beyond the "Reverse Payment" Cases at the ABA 59th Annual Antitrust Spring Meeting, March 30, 2011.
Standardizing Warhol: Antitrust Liability For Denying The Authenticity Of Artwork, 2011 University of Washington School of Law
Standardizing Warhol: Antitrust Liability For Denying The Authenticity Of Artwork, Gareth S. Lacy
Washington Journal of Law, Technology & Arts
Art authentication boards are powerful; their determinations of authenticity can render artwork worthless or add millions of dollars to market value. In the past, boards that denied authenticity of artwork typically risked tort liability for disparagement, defamation, or fraud. In Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., however, an art collector alleged monopolization and market restraint after an authentication board denied the authenticity of his Andy Warhol painting by stamping “DENIED” on the back of it. The case is the first antitrust lawsuit against an authentication board to survive the defendant’s motion to dismiss. The decision …
The Firm As Cartel Manager, 2011 University of Pennsylvania Carey Law School
The Firm As Cartel Manager, Herbert J. Hovenkamp, Christopher R. Leslie
All Faculty Scholarship
Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section 1 of the Sherman Act. Firms that engage in price fixing may try to reduce their probability of antitrust liability in a number of ways. First, members of a price-fixing conspiracy go to great lengths to conceal their illegal activities from antitrust enforcers. Second, because Section 1 condemns only concerted action, firms may structure their relationship to appear to be the action of a single entity that is beyond the reach of Section One.
In its American Needle decision the Supreme Court held that the …
Promoting The Buildout Of New Networks Vs. Compelling Access To The Monopoly Loop: A Clash Of Regulatory Paradigms, 2011 University of Pennsylvania Carey Law School
Promoting The Buildout Of New Networks Vs. Compelling Access To The Monopoly Loop: A Clash Of Regulatory Paradigms, Christopher S. Yoo
All Faculty Scholarship
No abstract provided.
Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, 2011 University of Pennsylvania Carey Law School
Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, Lisa Fairfax
All Faculty Scholarship
Corporate governance scandals inevitably raise concerns about the extent to which corporate directors failed in their responsibility to monitor the corporation and its managers, especially in terms of the latter's’ misdeeds. Corporate governance reforms strive to shore up directors' roles by seeking to ensure that boards have sufficient incentives to engage in effective oversight and to hold the boards more accountable. The current financial crisis has ushered in an era of significant government reform of the financial system and involvement in corporate governance matters. Such involvement has increased board of directors' responsibilities but has not reconciled those responsibilities with board …
The Regulatory Thicket: It’S Time To Cut Back, 2011 New York Law School
The Regulatory Thicket: It’S Time To Cut Back, David Schoenbrod
Other Publications
No abstract provided.
Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, 2011 Duke Law School
Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First
Faculty Scholarship
Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related lawsuits” …
Why Copperweld Was Actually Kind Of Dumb: Sound, Fury, And The Once And Still Missing Antitrust Theory Of The Firm?, 2011 Cleveland-Marshall College of Law, Cleveland State University
Why Copperweld Was Actually Kind Of Dumb: Sound, Fury, And The Once And Still Missing Antitrust Theory Of The Firm?, Chris Sagers
Law Faculty Articles and Essays
Since even before Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), it has been thought that antitrust needs some "theory of the firm" to inform its application of a "single-entity" defense in Sherman Act section 1 litigation. Not only is that sense mistaken, it is emblematic of the deep misdirection of contemporary antitrust. It shows just how far antitrust has forgotten that it is a law, a practical tool to implement policy choices made through our system of government. Much too much of the time, it seems to fancy itself rather an abstract policy seminar to be …
Antitrust And Innovation: Where We Are And Where We Should Be Going, 2011 University of Pennsylvania Carey Law School
Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp
All Faculty Scholarship
For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.
Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …
The Provider-Monopoly Problem In Health Care, 2011 Duke Law School
The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman
Faculty Scholarship
Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so …
Unconscionable Amateurism: How The Ncaa Violates Antitrust By Forcing Athletes To Sign Away Their Image Rights, 44 J. Marshall L. Rev. 533 (2011), 2011 UIC School of Law
Unconscionable Amateurism: How The Ncaa Violates Antitrust By Forcing Athletes To Sign Away Their Image Rights, 44 J. Marshall L. Rev. 533 (2011), Brian Welch
UIC Law Review
No abstract provided.
Are Those Who Ignore History Doomed To Repeat It?, 2011 University of Pennsylvania
Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo
All Faculty Scholarship
In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …
The Ftaia And Claims By Foreign Plaintiffs Under State Law, 2011 St. John's University School of Law
The Ftaia And Claims By Foreign Plaintiffs Under State Law, Edward D. Cavanagh
Faculty Publications
(Excerpt)
In Empagran, the Supreme Court construed the Foreign Trade Antitrust Improvements Act (FTAIA) to severely limit the extraterritorial reach of the Sherman Act. In the wake of Empagran and the D.C. Circuit’s subsequent ruling on remand in that case, foreign plaintiffs asserting claims under U.S. antitrust laws for injuries based on transactions consummated abroad have been largely shut out of federal courts. Foreign plaintiffs, however, have not abandoned their efforts to obtain relief in American courts for anticompetitive acts committed in the international arena. Rather, they have turned to claims under various state laws, including state antitrust laws, …