Antitrust and Trade Regulation Commons^™

How Elevation Of Corporate Free Speech Rights Affects Legality Of Network Neutrality, Barbara A. Cherry

Federal Communications Law Journal

In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court overruled a century of precedent to hold that corporations must be treated identically to natural persons with regard to political speech. This Article describes how the Court's decision is a radical departure from history that mirrors the FCC's flawed analysis in its classification of broadband Internet access services as an information service with no separable telecommunications component subject to common carriage regulation. Overall, the combinatorial effect of Citizens United and the FCC's classification of broadband access service as an information service is to elevate the constitutional free speech …

A Policy Framework For Spectrum Allocation In Mobile Communications, T. Randolph Beard, George S. Ford, Lawrence J. Spiwak, Michael Stern

Federal Communications Law Journal

With the National Broadband Plan's promise of an additional 500 MHz of spectrum for commercial purposes, the question of how to allocate those resources among competing uses and users will dominate the communications policy debate over the coming years. In this Article, the Authors provide a theoretical analysis of some of the relevant tradeoffs involved in allocating spectrum among service providers, with a particular focus on incumbent exclusion rules such as spectrum caps. Two key assumptions center the analysis: (i) more firms implies lower prices (i.e., Cournot competition); and (ii) more spectrum permits more advanced services due to greater capacity …

Overwhelmed By Big Consolidation: Bringing Back Regulation To Increase Diversity In Programming That Serves Minority Audiences, Caridad Austin

Federal Communications Law Journal

This Note addresses diversity in the media and the need for regulation that will enhance programming so that it is inclusive of minority audiences. It begins by analyzing the historical development of diversity in the media through landmark cases, such as Metro Broadcasting, Inc. v. Federal Communications Commission, and it addresses the consolidating effects of the Telecommunications Act of 1996 and the FCC's 2003 Report and Order. It argues that despite technological growth, the FCC's open market regulatory approach of the last three decades has resulted in a lack of diverse perspectives in the media and that the FCC needs …

The Landscape Of Collective Management Schemes, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Collective management comes in many shapes and sizes. There is, however, an interesting definition proposed by WIPO: [T]he term “collective management” only refers to those forms of joint exercise of rights where there are truly “collectivized” aspects (such as tariffs, licensing conditions and distribution rules); where there is an organized community behind it; where the management is carried out on behalf of such a community; and where the organization serves collective objectives beyond merely carrying out the tasks of rights management . . . . In contrast, “rights clearance organizations” are those which perform joint exercise of rights without any …

Comparative Deterrence From Private Enforcement And Criminal Enforcement Of The U.S. Antitrust Laws, Robert H. Land, Joshua P. Davis

BYU Law Review

No abstract provided.

Amicus Briefs And The Sherman Act: Why Antitrust Needs A New Deal, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Power to interpret the Sherman Act, and thus power to make broad changes to antitrust policy, is currently vested in the Supreme Court. But reevaluation of existing competition rules requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which it lacks. To compensate for these deficiencies, the Court has turned to amicus briefs to supply the economic information and reasoning behind its recent changes to antitrust policy. This Article argues that such reliance on amicus briefs makes Supreme Court antitrust adjudication analogous to administrative notice-and-comment rulemaking. When the Court pays careful attention to economic …

The Firm As Cartel Manager, Herbert Hovenkamp, Christopher R. Leslie

Vanderbilt Law Review

Antitrust law is the primary legal obstacle to price fixing, which is condemned by Section One of the Sherman Act. Section One condemns only concerted action between separate entities, not unilateral conduct by a single entity. Firms that engage in price fixing may try to reduce the risk of antitrust liability by structuring their actions to appear to be those of a unified single entity that is beyond the reach of Section One.

In this Article, Professors Hovenkamp and Leslie examine how price-fixing cartels govern themselves and maximize their profits by cooperating and colluding, instead of competing. They then use …

League Parity: Bringing Back Unlicensed Competition In The Sports Fan Apparel Market, David Franklin

Chicago-Kent Law Review

Should professional sports teams and collegiate institutions have an exclusive right to merchandise their logos? Recent court decisions have effectively provided these organizations with a monopoly in the fan apparel marketplace, as retailers who are not "officially licensed" by the underlying team or university are likely to face trademark infringement liability. In some contexts, this extension of trademark law has prevented companies from selling merchandise that merely displays a team's color scheme. However, such a broad prohibition on the use of team logos is inconsistent with the goal of trademark law, which is intended to prohibit uses of a mark …

Interstate Comparison - Use Of Contribution Margin In Determination Of Price Fixing, Tsui Tat Chee

Pace International Law Review Online Companion

For over a century, anti-trust law has been used to maintain an open and fair market economy by preventing monopolies.  However, anti-trust law has never precisely defined the term “monopoly”, which makes evaluating the interactions between the prohibition of monopoly and encouraging competition increasingly challenging.

In 2006, the Hong Kong Government appointed Arculli & Associates Solicitor Firm to study issues relating to competition in the auto-fuel retail market in Hong Kong. A test based on contribution margins was recommended, leading to the conclusion that price fixing is not a crime in the industry.

This article examines the problems related …

Innovative Copyright, Greg Lastowka

Michigan Law Review

For over a decade, Michael Carrier has been exploring the intersection of antitrust and intellectual property ("IP") law, contributing many articles that offer new solutions and approaches to the vexing problems confronting the law of innovation. Carrier's academic writing is situated in a voluminous scholarly discourse about the appropriate rules and goals of the laws of copyright, patent, and antitrust. While Carrier easily could have written an "insider" tome for specialists in this area, his new book, Innovation for the 21st Century, is targeted at a broader audience. Carrier's book is directed at legislators, jurists, and opinion makers-as well as …

Competition Law And Policy In Developing Countries: The Case Of The Egyptian Steel Monopoly, Hany Abdel Massih Ghaly

Theses and Dissertations

The structure of the economy of developing countries and the political forces at play are different from their counterparts in developed countries. Therefore and theoretically, the adoption of antitrust policies in developing countries might not rely on the model of developed countries. Poverty and market size play a fundamental role in identifying the right formulation of competition law and policy. Small economies face different issues than large economies, such as productive efficiency, that may lead small economies to a higher level of industry concentration and allow the achievement of some market power. This paper argues that although monopoly is regarded …

Explaining The Importance Of Public Choice For Law, D. Daniel Sokol

UF Law Faculty Publications

The next generation of government officials, business leaders and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law's interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decision-making within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Stearns and …

Antitrust Law - Affirmative Acts And Antitrust - The Need For A Consistent Tolling Standard In Cases Of Fraudulent Concealment, Amber Davis-Tanner

University of Arkansas at Little Rock Law Review

No abstract provided.

Antitrust Merger Efficiencies In The Shadow Of The Law, D. Daniel Sokol, James A. Fishkin

UF Law Faculty Publications

This Essay provides an overview of U.S. antitrust merger practice in addressing efficiencies both in terms of actual practice before the agencies and in scholarly work as a response to Jamie Henikoff Moffitt's Vanderbilt Law Review article Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis. Moffitt’s analysis could have benefited from a more thorough discussion of the Department of Justice and Federal Trade Commission’s (collectively, the “agencies”) analysis of efficiencies during investigations and the broader process of negotiations involving mergers. For instance, the article does not discuss the empirical work addressing when the agencies …

Rethinking Merger Efficiencies, Daniel A. Crane

Law & Economics Working Papers

The two leading merger systems—those of the United States and the European Union—treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power. The implicit asymmetry principle has important systemic effects for merger control. Not only does it stand in the way of some socially desirable mergers, but it may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry and none of the plausible justifications is normatively …

The Internet Ecosystem: The Potential For Discrimination, Dick Grunwald

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

This Article explores how the emerging Internet architecture of "cloud computing," content distribution networks, private peering and data-center services can simultaneously foster a perception of "unfair" network access while at the same time enabling significant competition for services, content, and innovation. A key enabler of these changes is the emergence of technologies that lower the barrier for entry in developing and deploying new services. Another is the design of successful Internet …

Am I A Price Fixer? A Behavioural Economics Analysis Of Cartels, Maurice Stucke

Book Chapters

No abstract provided.

Credit Default Swaps And Clearing, Nazanin Baseri

Legislation and Policy Brief

In an article from 2000, an investigative journalist from The Banker warned against the hidden dangers of credit default swaps (CDS). Although CDSs can be a useful financial instrument for the banking industry, the article warned of the anonymity of credit derivatives, lack of transparency, and the potential for disaster. In an unfortunately accurate conclusion, the journalist opined that a crisis might occur because banks may not put in place the proper risk control systems in time to avert a disaster. Fast forward eight years and the financial meltdown of 2008 developed into one of the largest economic disasters in …

Brief Of Amicus Curiae American Antitrust Institute In Support Of Appellants And Reversal Of The District Court's Decision, Federal Trade Commission And State Of Minnesota V. Lundbeck, Inc. Nos. 10-3548 And 10-3549, United States Court Of Appeals For The Eighth District (2011), Christopher L. Sagers, W. Joseph Bruckner, Richard M. Brunell

Law Faculty Briefs and Court Documents

The basis for the District Court’s ruling was its view that cross-price elasticity of demand was “very low” between the two drugs acquired by Lundbeck, and therefore that they could not be in the same relevant market.2 AAI urges reversal on three grounds. First, assuming arguendo that crossprice elasticity was low – even if it were zero – the court’s approach fundamentally misapprehended the law. A lack of price competition between two functionally interchangeable products does not preclude a determination that they are in the same relevant market. Second, regardless of “low” cross-price elasticity, the acquisition removed an actual or …

Method, Community And Comparative Law: An Encounter With Complexity Science, David J. Gerber

All Faculty Scholarship

Assume that you are attending a symposium on comparative law being held in conjunction with the annual meeting of the American Society for Comparative Law. Comparative law scholars from many universities are present, and a few legal practitioners are attending as well. One speaker begins as follows: “This talk will be about complex adaptive systems—the emerging science of complexity.” Based on experience in similar contexts, I would anticipate several common reactions among members of the audience. The most common might be “he’s in the wrong room.” Another set of reactions is likely to be “What? What’s that? Never heard of …