Antitrust and Trade Regulation Commons^™

Evaluating Joint Ventures: Economic Analysis Checklist, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This short article (for a symposium on joint ventures) provides practitioners and law professor with a 20 question checklist to guide the competitive effects analysis of the formation of a joint venture and the specific restraints and conduct of the venture. The questions mainly focus on ventures among actual or potential competitors, though some of the questions also are relevant for ventures involving complementary product firms. The questions concern potential competitive harms, potential competitive benefits, and the determination of net competitive effects. While this sequencing follows the standard burden-shifting formulation of the rule of reason decision process, the article notes …

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah Post

Touro Law Review

No abstract provided.

Preface To The Gateway Thread, Deborah Post

Touro Law Review

No abstract provided.

Cognition And Common Sense In Contract Law, Beverly Horsburgh, Andrew Cappel

Touro Law Review

No abstract provided.

Common Sense, Contracts, And Law And Literature: Why Lawyers Should Read Henry James, Lenora Ledwon

Touro Law Review

No abstract provided.

Of Contract, Culture, And The Code: Judge Easterbrook And The Cheyenne Indians, John M. Conley

Touro Law Review

No abstract provided.

Common Sense And Contract Law: Fear Of A Normative Planet?, Thomas Joo

Touro Law Review

No abstract provided.

Helping Yourself While Serving Two Masters: Do Specialists Violate Rule 10b-5 When They Interposition?, Roman Asudulayev

Fordham Urban Law Journal

The decision of the Second Circuit in United States v. Finnerty (Finnerty III) was the culmination of a number of District Court decisions that found that specialists on the New York Stock Exchange (NYSE) could not be held liable for fraud under Rule 10b-5 for interpositioning, whereby they put themselves between buy and sell limit orders, in violation of NYSE rules, and profited on the spread. Finnerty III and its District Court sibling decisions were wrongly decided. Specialists presented a uniquely thorny issue of agency law to the Federal Courts in New York. This issue was under-analyzed by the Federal …

Quality Collusion: News, If It Ain’T Broke, Why Fix It?, Mark Mcmillan

Fordham Urban Law Journal

No abstract provided.

Rems-Restricted Drug Distribution Programs And The Antitrust Economics Of Refusals To Deal With Potential General Competitors, Henry N. Butler

Florida Law Review

This Article provides an antitrust and economic analysis of a refusal-to-deal claim in the REMS context. The analysis suggests that the antitrust claims involved do not provide a proper justification for a new exception to a competitor’s right to refuse to deal. The FDA and Congress play important roles in the complex regulatory scheme of the U.S. pharmaceutical industry. With so much regulation and oversight, antitrust has little place in ensuring an efficiently functioning market for REMS-restricted pharmaceuticals.

Part I provides background about generic drug entry under the Hatch-Waxman Act, which lays out the framework for ANDAs, and discusses REMS-restricted …

Antitrust Limits On Targeted Patent Aggregation, Alan Devlin

Florida Law Review

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax innovators and appear to restrict rather than facilitate wealth transfer to original patentees, their worst rent-seeking practices almost certainly reduce net incentives to innovate and harm consumers. This result is more likely if the principal desirable incentive that PAEs create is to file patents rather …

Do Automated Trading Systems Dream Of Manipulating The Price Of Futures Contracts? Policing Markets For Improper Trading Practices By Algorithmic Robots, Gregory Scopino

Florida Law Review

This Article seeks to determine if the CFTC needs new tools to combat disruptive, manipulative, or otherwise harmful trading practices that originate solely from the “minds” of ATSs. Part I of this Article provides a brief regulatory background of the derivatives markets, then examines the increased automation in those markets today, and concludes by looking at the CFTC’s initial responses to the issues raised by automation. Part II briefly looks at the law concerning different mental states for causes of action. Part III examines the CFTC’s pre and post-Dodd–Frank Act tools to police disruptive and manipulative trading practices, which are …

Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier

Washington Law Review

This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power …

Navigating Through The Fog Of Vertical Merger Law: A Guide To Counselling Hospital-Physician Consolidation Under The Clayton Act, Thomas L. Greaney, Douglas Ross

Washington Law Review

Lawyers assessing legality under the antitrust laws of hospital acquisitions of physician practices face a quandary. The case law is sparse, federal enforcement guidance outdated, and academic input conflicting. Applying these muddled standards in the rapidlyevolving health care sector only magnifies the uncertainty. While most transactions will be competitively neutral or beneficial, rapidly evolving market conditions causing integration between hospitals and physicians present opportunities for consolidations that may harm consumer interests. Indeed, given the highly concentrated structure of many hospital markets in the nation, preemptive acquisitions of physician practices may be a tempting strategy for some to undermine competition. This …

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

UF Law Faculty Publications

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the …

Why A "Large And Unjustified" Payment Threshold Is Not Consistent With Actavis, Michael A. Carrier

Washington Law Review

This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power …

Book Review-Antitrust Guide For International Operations, Joseph P. Griffin

Georgia Journal of International & Comparative Law

No abstract provided.

Markovits On Defining Monopolization: A Comment, Keith N. Hylton

Faculty Scholarship

In this comment I focus on Richard Markovits’s definition of monopolization in his new book, Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law (Springer 2014), and also his assertion that monopolization is distributively unjust. I agree wholeheartedly with his approach to defining monopolization, though I might alter a few details. However, I think the distributive justice effects of monopolization are ambiguous.

Understanding And Regulating Twenty-First Century Payment Systems: The Ripple Case Study, Marcel T. Rosner, Andrew Kang

Michigan Law Review

Ripple is an open-source Internet software that enables users to conduct payments across national boundaries in multiple currencies as seamlessly as sending an email. This decentralized Internet payment protocol could provide a cure to an inefficient cross-border payments system. Although Ripple’s technology can reduce significant risks and costs that exist in the internationalpayments system, regulators should adopt a new regulatory framework that responds to how this technology works. This Note performs two functions to help regulators realize this goal. It first helps regulators and other market participants understand how Ripple operates by explaining what Ripple is and comparing it to …

Dueling Monologues On The Public Domain: What Digital Copyright Can Learn From Antitrust, Timothy K. Armstrong

The University of Cincinnati Intellectual Property and Computer Law Journal

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and …