Antitrust and Trade Regulation Commons^™

Guiding Section 5: Comments On The Commissioners, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

FTC Commissioners Joshua Wright and Maureen Ohlhausen have proposed that the Commission adopt Guidelines for the application of Section 5 to Unfair Methods of Competition. This short note comments on the role of Section 5 distinct from the Sherman Act. It suggests that Section 5 be used to attack and deter certain conduct that falls into gaps of the Sherman Act. This includes exclusionary unilateral conduct that likely leads to the achievement, enhancement, or maintenance of market power (as opposed to monopoly power). It also includes unilateral conduct such as invitations to collude and other practices that facilitate conscious …

The Protected Profits Benchmark: Responses To Comments, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In my earlier article, I proposed the “Protected Profits Benchmark” (PPB) price standard for determining whether or not a vertically integrated monopolist is engaged in a refusal to deal or price squeeze in violation of Section 2 of the Sherman Act. The PPB would be used where market benchmarks do not exist or do not apply. Violating the PPB price involves profit-sacrifice, which suggests anticompetitive animus. When products are homogeneous, a wholesale price that violates this price standard would exclude an equally efficient entrant. As a result, there will be less competition in the downstream (output) market in which the …

Marks, Morals, And Markets, Jeremy N. Sheff

Faculty Publications

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law's recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean "natural rights" theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate …

Antitrust Law And Economic Theory: Finding A Balance, Edward D. Cavanagh

Faculty Publications

Over the past forty years, the federal courts have relied more and more on economic theory to inform their antitrust analyses. Economic theory has indeed provided guidance with respect to antitrust issues and assisted the courts in reaching rational outcomes. At the same time, infusion of economic evidence into antitrust cases has made these cases more complex, lengthier, more expensive to litigate, and less predictable.

This Article argues that courts need to restore the balance between facts and economic theory in undertaking antitrust analysis. The problem is not that judges and juries cannot reach good outcomes in antitrust cases, but …

Section 5 And The Innovation Curve, Daniel A. Crane

Book Chapters

the ftc’s authority to use Section 5 of the FTC Act to reach anticompetitive conduct that would not be illegal under the Sherman or Clayton Acts has been much discussed in recent years, particularly in conjunction with the FTC’s enforcement action against Intel. As of this writing, a Section 5 action against Google seems imminent.

Defying Conventional Wisdom: The Case For Private Antitrust Enforcement, Joshua P. Davis, Robert H. Lande

Georgia Law Review

The conventional wisdom is that private antitrust enforcement lacks any value. Indeed, skepticism of private enforcement has been so great that its critics make contradictory claims. The first major line of criticism is that private enforcement achieves too little-it does not even minimally compensate the actual victims of antitrust violations and does not significantly deter those violations. A second line of criticism contends that private enforcement achieves too much-providing excessive compensation, often to the wrong parties, and producing overdeterrence. This Article undertakes the first ever systematic evaluation of these claims. Building upon original empirical work and theoretical inquiry by the …

Objective And Subjective Theories Of Concerted Action, William H. Page

UF Law Faculty Publications

Communication is useful and often necessary for rivals to coordinate price and output decisions. All would agree that evidence of communication on these issues is relevant to the issue of whether firms reached an illegal agreement or engaged in concerted action in violation of Section 1 of the Sherman Act. Most courts and commentators would go further and define agreement and concerted action to require communication of one kind or another. I call this view the objective theory of concerted action. Louis Kaplow has recently challenged this approach in three important articles, all of which argue that the focus on …

Google And Search-Engine Market Power, Mark R. Patterson

Faculty Scholarship

A significant and growing body of commentary considers whether possible manipulation of search results by Google could give rise to antitrust liability. Surprisingly, though, little serious attention has been paid to whether Google has market power. Those who favor antitrust scrutiny of Google generally cite its large market share, from which they infer or assume its dominance. Those who are skeptical of competition law’s role in regulating search, on the other hand, usually cite Google’s 'competition is only a click away' mantra to suggest that Google’s market position is precarious. In fact, the issue of Google’s power is more complicated …

International Trade And Fdi Literature In The Philippines: Development And Prospects, Hazel C. Parcon-Santos

Angelo King Institute for Economic and Business Studies (AKI)

Trade and investment policies in the Philippines have undergone major shifts through decades. These changes have had important implications on the economy and have been extensively investigated by various scholars. Significant areas which may have important policy implications remain unexplored.

Self-Replicating Technologies And The Challenge For The Patent And Antitrust Laws, Daryl Lim

Cardozo Arts & Entertainment Law Journal

Few patented inventions challenge the traditional boundaries of the patent and antitrust laws like those that are capable of multiplying as they are used. These self-replicating technologies are embedded in our food, fortify our vaccines, and form the computer code upon which the information age is based. These inventions create an inherent conflict between patentees and their customers. The conflict arises because every customer could become competitors as the product replicates, potentially making every first sale the patentee's last. They also challenge how we think about fundamental issues of ownership as well as innovation and market competition, and make it …

The Not-So-Artful Dodger: The Mccourt-Selig Battle And The Powers Of The Commissioner Of Baseball, Matthew L. Winkel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Front-Of-Package Nutrition Claims: Trustworthy Facts Or Deceptive Marketing? Closing The Loopholes In Labeling, Kathryn E. Hayes

Cardozo Journal of Equal Rights & Social Justice

The note argues that front-of-package (FOP) labeling on children's food products is insufficient and often misleading, failing to meet basic nutritional standards. It advocates for the adoption of uniform, science-based labeling standards developed by an objective body like the Institute of Medicine (IOM) to help parents make healthier choices. The analysis highlights the limitations of self-regulation by manufacturers and the need for stronger governmental oversight to address deceptive practices and improve public health outcomes.

The Savior Of Aggregate Litigation: The Giving Green Tree, Matthew Maggiacomo

Cardozo Journal of Conflict Resolution

Section I of this Note summarizes the general background and fundamental aspects of present-day federal arbitration law. Section II highlights the recent developments in federal arbitration law, the rise of mandatory arbitration clauses, collective or class action waivers, and the Supreme Court's decision in Concepcion. Section III addresses the current confusion in the law, analyzing both the holdings of the Second and Ninth Circuits. Section IV provides guidance to the Supreme Court on how courts should handle claims in federal arbitration law's changing environment to ensure the validation of individuals' rights and predicts how the federal arbitration landscape will …

Caught In A Bind: Reassuring Judicial Authority To Bind Non-Party Search Engines Under Rule 65 In Counterfeit Goods Cases, Courtney Brown

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Can't We Be (F)Rands?: The Effect Of Reasonable And Non-Discriminatory Commitments On Standard-Essential Patent Licensing, Robert D. Keeler

Cardozo Arts & Entertainment Law Journal

This Note explores the effect of a patent holder's reasonable and non-discriminatory ("RAND") commitments to standard-setting organizations on their patent claims which are declared "standard-essential" by the standard-setting organization. It also analyzes the current standard-essential patent ("SEP") licensing system used by the majority of standard-setting organizations around the world and proposed modifications thereto.

This Note looks toward the current case of Microsoft v. Motorola Mobility, the recent Google Settlement with the Federal Trade Commission ("FTC"), and various calls for reform from other areas of the government. The Note concludes that it appears that we are moving toward a system in …

What Brady V. N.F.L. Teaches About The Devolution Of Labor Law, Michael C. Duff

All Faculty Scholarship

In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA). I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it. I chronicle other recent important, but relatively minor, judicial departures from the music. I also discuss a major but less recent departure – the employer lockout. …

A Competition Act By India, For India: The First Three Years Of Enforcement Under The New Competition Act, Dorothy S. Lund

Faculty Scholarship

In 2002, India unveiled its new Competition Act. The Act substantially improves upon the previous competition regime, which regulated and condemned dominance even absent culpable conduct. Despite improvements, provisions of the Act have proven difficult for the fledgling Competition Commission (“the Commission”) to implement. For one, the Act overwhelmingly prefers rule of reason analysis to per se illegality for horizontal and vertical agreements. While this approach gives the Commission the flexibility to conduct a nuanced inquiry, the economic analysis required is challenging. So far, the Commission has struggled when applying basic antitrust economics in the hundred or so orders that …

Antitrust Enforcement And Sectoral Regulation: The Competition Policy Benefits Of Concurrent Enforcement In The Communications Sector, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

The US competition agencies – the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) – often share jurisdiction with sectoral regulators also charged with fostering competition, such as the Federal Communications Commission (FCC). This article highlights how this institutional structure – concurrent jurisdiction – helps protect competition through the lens of recent US experiences involving the communications industry. It argues that concurrent jurisdiction is likely most effective when the communications regulator has independent access to industry information to limit capture, when the communications regulator can take a long-term perspective, when the antitrust agency can …

Exclusion As A Core Competition Concern, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

A contemporary consensus in antitrust discourse inappropriately places exclusionary conduct at the periphery of competition policy, while putting collusion at the core. Contrary to that common view, exclusion is as important as collusion as a matter of precedent, the structure of doctrinal rules, economics, and sound competition policy. Courts treat exclusionary violations as serious competitive problems. An emerging doctrinal rule for truncated condemnation of “plain” exclusionary conduct (practices foreclosing rivals that lack a plausible efficiency justification) parallels the evolving judicial approach toward “naked” collusion. Exclusion and collusion can be understood within a common economic framework that emphasizes the close relationship …

Fcc Ancillary Jurisdiction Over Internet And Broadband, Michael Botein

Articles & Chapters

No abstract provided.