Antitrust and Trade Regulation Commons^™

Anticompetitive Product Design In The New Economy, John M. Newman

Articles

Claims alleging anticompetitive product design and redesign lie at the very core of one of antitrust law's most challenging dilemmas: the intersection between innovation and regulation, invention and intervention. For over three decades, courts and scholars have struggled to determine the proper analytical framework within which to address such cases. Meanwhile, the very industries in which challenged conduct occurs have been undergoing fundamental changes.

As demonstrated by the ongoing and recent antitrust litigation involving high technology firms Apple, Intel, and Microsoft, distinctive features characterize most product markets in what has been called the 'New Economy'"--and what increasingly has become simply …

The Mark Of A Resold Good, Yvette Joy Liebesman, Benjamin Wilson

All Faculty Scholarship

Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market.

Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet …

Unraveling The Chicago/Harvard Antitrust Double Helix: Applying Evolutionary Theory To Guard Competitors And Revive Antitrust Jury Trials, Thomas J. Horton

University of Baltimore Law Review

No abstract provided.

The "Element" Of Surprise: The Third Circuit Bucks The Foreign Trade Antitrust Improvements Act Trend In Animal Science Products, Inc. V. China Minmetals Corp., Daniel Wotherspoon

Villanova Law Review (1956 - )

No abstract provided.

The Statutory Ucc: Interpretative License And Duty Under Article 2, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

Extraterritorial Protection Of Trade Secret Rights In China: Do Section 337 Actions At The Itc Really Prevent Trade Secret Theft Abroad?, 11 J. Marshall Rev. Intell. Prop. L. 523 (2012), Steven E. Feldman, Sherry L. Rollo

UIC Review of Intellectual Property Law

With an ever increasing number of United States ("U.S.") companies conducting business abroad or conducting business with foreign entities there is more need than ever for the U.S. companies to consider how they can protect their intellectual property assets. The Federal Circuit‘s recent TianRui Grp.Co. v. Int’l Trade Comm’n and Amsted Indus. decision highlights the potential of section 337 of the U.S. Patent Act as a tool to prevent the exploitation of misappropriated trade secrets embodied in products that are imported into the United States. This article explores the potential impact of the TianRui decision on business practices abroad, particularly …

Continuing The Conversation Of "The Economic Irrationality Of The Patent Misuse Doctrine", Christa J. Laser

Law Faculty Articles and Essays

This Article seeks to use economic tools and insights to find the best way for courts to construe or for Congress to modify the patent misuse doctrine. As the title suggests, it attempts to continue the conversation begun by Professor Mark Lemley in his often-cited Comment, The Economic irrationality of the Patent Misuse Doctrine.

Part I provides a brief history of the doctrine of patent misuse. Part II begins with a premise that a partial economic equilibrium can be achieved by attempting to match Congress's intended patent scope with the actual patent scope, even assuming that economic tools can never …

The Predicament Of China's "Wto-Plus" Obligation To Eliminate Export Duties: A Commentary On The China-Raw Materials Case, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

Clarifying State Action Immunity Under The Antitrust Laws: Ftc V. Phoebe Putney Health System, Inc., Angela M. Diveley

St. Thomas Law Review

In Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC's and the Eleventh Circuit's applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court's interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and …

An Institutional Defense Of Antitrust Immunity For International Airline Alliances, Gabriel S. Sanchez

Catholic University Law Review

No abstract provided.

The Criminalization Of The Theft Of Trade Secrets: An Analysis Of The Economic Espionage Act, Nicola Searle

IP Theory

No abstract provided.

Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.

Fordham Journal of Corporate & Financial Law

“It is true that there are some cases in which the courts, mistaking . . . the proper limits of the relaxation of the rules for determining the unreasonableness of restraints of trade, have set sail on a sea of doubt . . . .” William Howard Taft1 “Without further elaboration, reasonableness is too vague a standard to guide the businessman’s actions or the judge’s discretion. Such openness is a mixed blessing. Unbounded by technical limitations, it reaches every evil. But unless disciplined by the purposes of antitrust laws, it is a vagrant standard.” Phillip E. Areeda2

Lessons From The Flash Crash For The Regulation Of High-Frequency Traders, Edgar Ortega Barrales

Fordham Journal of Corporate & Financial Law

Are equity markets vulnerable to a sudden collapse if the traders who account for about half of the volume have no regulatory obligations to stabilize prices? After the “Flash Crash” of May 6, 2010, policymakers have resoundingly answered this question in the affirmative. During the worst of the crash, some of the so-called high-frequency trading firms that dominate equity markets stopped trading and prices collapsed, momentarily wiping out almost $1 trillion in market value. In response, the U.S. Securities and Exchange Commission is considering whether high-frequency trading firms should be required to act as the traders of last resort. This …

Burning Down The House Or Simply Rolling The Dice: A Comment On Section 621 Of The Dodd-Frank Act And Recommendation For Its Implementation, Joshua R. Rosenthal

Fordham Journal of Corporate & Financial Law

Section 621 of the Dodd-Frank Wall Street Reform and Consumer Protection Act modifies the Securities Act of 1933 to prohibit the underwriter, placement agent, initial purchaser, or sponsor, or any affiliate or subsidiary of any such entity of an asset-backed financial product from betting against that very product for one year after the product’s initial sale. The rule prohibits anyone who structures or sells an asset-backed security or a product composed of asset-backed securities from going short, in the specified timeframe, on what they have sold, and labels such transactions as presenting material conflicts of interest. This Comment discusses traces …

Antitrust And Social Networking, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Use Of Dominance, Unlawful Conduct, And Causation Under Section 36 Of The New Zealand Commerce Act: A Us Perspective, Jeffrey M. Cross, J. Douglas Richards, Maurice E. Stucke, Spencer Weber Waller

Faculty Publications & Other Works

No abstract provided.

Insights From A National Conference: "Conflicts Of Interest In The Practice Of Medicine", David Orentlicher

Scholarly Works

No abstract provided.

Parallel Exclusion, C. Scott Hemphill, Tim Wu

Faculty Scholarship

Scholars and courts have long debated whether and when "parallel pricing" – adoption of the same price by every firm in a market – should be considered a violation of antitrust law. But there has been a comparative neglect of the importance of "parallel exclusion" – conduct, engaged in by multiple firms, that blocks or slows would-be market entrants. Parallel exclusion merits greater attention, for it can be far more harmful than parallel price elevation. Setting a high price leaves the field open for new entrants and may even attract them. In contrast, parallel action that excludes new entrants both …

The Supreme Court's Renewed Focus On Inefficiently Structured Joint Ventures, Stephen F. Ross

Faculty Scholarship

Antitrust courts and commentators have long appreciated that joint ventures among rival firms have the potential to provide benefits to consumers and the economy through synergies and economies of scale, but also raise the potential of lessening competition among the venture principals. The case law and academic literature have often ignored, however, the potential harm that befalls consumers when joint ventures with market power are structured in a manner that gives the principals the ability to direct policy and a strategy in a manner that advances their parochial self-interest, rather than the interests of the venture-as-a-whole. The Supreme Court's recent …

Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman

Faculty Scholarship

Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate …