Antitrust and Trade Regulation Commons^™

Rebalancing Pay-For-Delay: Why No-Authorized Generic Agreements Should Be Subject To Higher Antitrust Scrutiny, David C. Kurlander

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Delay And Its Benefits For Judicial Rulemaking Under Scientific Uncertainty, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

The Supreme Court’s increasing use of science and social science in its decision-making has a rationalizing effect on law that helps ensure that a rule will have its desired effect. But resting doctrine on the shifting sands of scientific and social scientific opinion endangers legal stability. The Court must be be responsive, but not reactive, to new scientific findings and theories, a difficult balance for lay justices to strike. This Article argues that the Court uses delay — defined as refusing to make or change a rule in light of new scientific arguments at time one, and then making or …

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

Articles

The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments. …

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

Articles

The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …

Cars Activity Report 2007–2013, Agata Jurkowska-Gomułka

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

CARS Activity Report 2007–2013

Entire Issue Vol. 3 No. 1

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Entire issue vol 3(1)

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

Scholarly Works

U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese

Faculty Publications

The last few decades have witnessed a scientific revolution in the field of industrial organization in the form of transaction cost economics (TCE). This revolution has radically altered economists’ understanding and interpretation of both partial and complete economic integration. Not surprisingly, this sea change has substantially influenced antitrust law and policy, impelling the Supreme Court to reverse or greatly modify various precedents.

This essay supplements the received historiography of the TCE revolution. It contends that Robert Bork played a hitherto underappreciated role in that revolution. In particular, the essay contends that in 1966, before the official onset of the transaction …

Intellectual Property Experimentalism By Way Of Competition Law, Tim Wu

Faculty Scholarship

Competition law and Intellectual Property have divergent intellectual cultures – the former more pragmatic and experimentalist; the latter influenced by natural law and vested rights. The US Supreme Court decision in Federal Trade Commission v. Actavis is an intellectual victory for the former approach, one that suggests that antitrust law can and should be used to introduce greater scrutiny of the specific consequences of intellectual property grants.

Rethinking Trademark Functionality As A Question Of Fact, Yvette Joy Liebesman

All Faculty Scholarship

Trade dress functionality stands for a reasonable premise: features which are essential to the use or purpose of an article, which affect the cost or quality of the article, or whose exclusive use would put competitors at a significant non-reputation-related disadvantage, are not protectable as signifiers of source or sponsorship. Functionality has broad implications, as a product’s shape can be its most identifiable feature.

The problems plaguing the functionality doctrine have been examined from a substantive point of view; however until the standard by which functionality is determined is changed, these problems are likely to continue to persist. When adjudicating …

Joe Bauer Presented "Enforcement Issues Under American Antitrust Laws" At The University Of Tilburg (Holland) Center For Law And Economics On December 19, 2013, Joseph P. Bauer

Faculty Lectures and Presentations

Joe Bauer presented a seminar at the University of Tilburg (Holland) Center for Law and Economics on December 19. His topic was Enforcement Issues under American Antitrust Laws. View PowerPoint slides of lecture by clicking pdf link.

Policing The Firm, D. Daniel Sokol

UF Law Faculty Publications

Criminal price fixing cartels are a serious problem for consumers. Cartels are hard both to find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrongdoing. Thus far, antitrust scholarship and policy have ignored this insight in the cartel context. This Article suggests how to improve antitrust enforcement by focusing enforcement efforts on changing the incentives of internal firm compliance.

A Channel Worth Changing? The Individual Regional Sports Network: Proliferation, Profits, Parity, And The Potential Administrative And Antitrust Issues That Could Follow, Stephen Dixon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

League Structure & Stadium Rent Seeking—The Role Of Antitrust Revisited, David Haddock, Tonja Jacobi, Matthew Sag

Florida Law Review

Professional North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause the differences; rather, it is the industrial organization of sports in the two countries—the structure of league control—that enables rent-seeking by American teams but not by their English counterparts. Cross-country time series data contrasting American professional football and baseball stadiums with English soccer grounds support our claim, …

Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol

UF Law Faculty Publications

This essay explores the factors that drive merger outcomes under China's Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger …

Inconsistency In Antitrust, Ramsi Woodcock

Law Faculty Scholarly Articles

When the price of a good is too high, consumers who can afford to pay cost, including enough profit to make production worth the manufacturer's while, but cannot pay enough to meet the high price, are forced to do without. Economics teaches that efficiency would increase if price were to fall to cost because at cost the manufacturer would still be glad to produce and consumers could now afford to purchase more of the good. Efficiency requires that where more for less is possible, more must be had for less.

Protecting The Pachyderm: The Significance Of Ivory Trade Regulation For African Elephant Conservation, Sharon Montazeri

Cardozo Journal of International and Comparative Law

The note argues that the Convention on International Trade in Endangered Species (CITES) should have accepted CoP16 Proposal 12 at its 2013 meeting, which sought to prohibit future proposals allowing the trade of elephant ivory for nine years. The proposal aligns with CITES' mission to protect endangered species by eliminating incentives for harmful trade practices. While CITES relies on member states to implement conservation measures, the note contends that a trade ban, coupled with additional protections and public education, is essential to prevent further declines in African elephant populations.

Trademark Morality, Mark Batholomew

William & Mary Law Review

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, judicial assessments of highly charged questions of right and wrong are also at work. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decision making, often without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly those …

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

All Faculty Scholarship

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 …

Self-Regulation Of Insider-Trading In Mutual Funds And Advisers, Tamar Frankel

Faculty Scholarship

Mutual funds are required to impose Codes of Ethics on many of their employees. Did this requirement make a difference? After all, similar Codes proliferate in many other financial and business corporations! ⁴ with fairly miserable results. In fact, the temptations facing employees and managers of many business corporations that published self-imposed Codes are relatively weaker than the temptations facing employees and managers of mutual funds. Yet as compared to mutual funds, these business companies have failed to prevent insider-trading!

I believe that regulated mutual funds are less prone to insider-trading than non-regulated funds and traders because their Codes of …