Antitrust and Trade Regulation Commons^™

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.

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 …

Were Standard Oil's Railroad Rebates And Drawbacks Cost Justified?, Daniel A. Crane

Articles

In this essay, written for a symposium on the centennial anniversary of the Supreme Court's Standard Oil decision, I reexamine the costjustification question. In the first part, I explain why the cost-justification question is central to the entire case and its acquired and evolving historical meaning. In the second part, I review the evidence of claimed efficiencies passed on to the railroads. I conclude that there is evidence that Standard Oil passed along significant cost savings to the railroads and that these savings could have justified a portion of the rebates and drawbacks. However, I conclude that there is little …

The Obama Justice Department's Merger Enforcement Record: An Armchair Reply To Baker And Shapiro, Daniel A. Crane

Articles

My recent Essay, Has the Obama Justice Department Reinvigorated Antitrust Enforcement?, examined the three major areas of antitrust enforcement—cartels, mergers, and civil non-merger—and argued that, contrary to some popular impressions, the Obama Justice Department has not “reinvigorated” antitrust enforcement. Jonathan Baker and Carl Shapiro have published a response, which focuses solely on merger enforcement. Baker and Shapiro’s argument that the Obama Justice Department actually did reinvigorate merger enforcement is unconvincing.

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu

Faculty Scholarship

Now is a particularly important time to consider the relationship between antitrust and innovation. Within the last two years, both the Justice Department and Federal Trade Commission have accumulated an entire docket of antitrust investigations related to the Internet and other high-tech industries. The list of publicly disclosed investigations is lengthy, and includes major players like Google, Apple, Facebook, and Twitter.' The nation's antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy.

That is the …

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 …

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.

Leveraging Information About Patents: Settlements, Portfolios, And Holdups, Mark R. Patterson

Faculty Scholarship

The purpose of this essay is twofold. First, it serves to emphasize the role played by uncertainty in three otherwise very different categories of cases, involving “reverse payment” settlements, patent portfolios and package licensing, and deception in standard-setting. The source of the uncertainty at issue in each of the cases is different, but in each the unavailable information is not protected by patent law. Second, the essay points out that in these cases the courts nevertheless apply rules that are more appropriate for the information about inventions that patent law is intended to protect. Patent law grants patentees the exclusive …

Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin

Richmond Journal of Global Law & Business

No abstract provided.

The Rule Of Reason Re-Examined, Edward D. Cavanagh

Faculty Publications

This article analyzes the application of the Rule of Reason as articulated by Justice Brandeis in Chicago Board of Trade v. United States to alleged restraints of trade in violation of section 1 of the Sherman Act. It argues that the Brandeis formulation, which requires courts to consider a broad range of economic factors and then weigh procompetitive benefits against anticompetitive effects, has proven unwieldy in the hands of trial judges. Because the Brandeis formulation provides little guidance as to how these factors should be weighed, courts have struggled to develop clear, predictable, and consistent standards under section 1. This …

Is Pepsi Really A Substitute For Coke? Market Definition In Antitrust And Ip, Mark P. Mckenna

Journal Articles

Antitrust law explicitly depends on market definition. Many issues in IP law also depend on market definition, though that definition is rarely explicit. Applying antitrust traditional market definition to IP goods leads to some startling results. Despite the received wisdom that IP rights don't necessarily confer market power, a wide array of IP rights do exactly that under traditional antitrust principles. This result requires us to rethink both the overly-rigid way we define markets in antitrust law and the competitive consequences of granting IP protection. Both antitrust and IP must begin to think realistically about those consequences, rather than falling …

International Investments Arbitration: Winning, Losing And Why, Susan D. Franck

Contributions to Books

In late 2008, as financial markets were crashing, the Vale Columbia Center on Sustainable International Investment launched the Columbia FDI Perspectives. The first Perspective, entitled “The FDI recession has begun,” correctly forecast an FDI recession in the following year. From that first Perspective in late 2008 to the end of 2010, the series published thirty-three concise notes on topical FDI-related issues by diverse experts in the field. The purpose of these Perspectives is to inform readers about some of the important issues and trends in the contemporary debate on FDI, and to promote a wide-ranging discussion about the policy implications …

The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer

Journal Articles

The extra-territorial reach of the antitrust laws is subject to multiple constraints, including the Commerce Clause of the constitution, the text of the antitrust statutes, and a variety of policy considerations. At the beginning of the twentieth century, in the American Banana case, the Supreme Court severely limited the application of the antitrust laws to anti-competitive behavior beyond our shores. The next eighty years saw an expansion of their extra-territorial reach, by including within their coverage a range of foreign conduct which had domestic effects. However, confusion among the lower courts as to the extent of this coverage, as well …

A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane

Articles

It has long been fashionable to categorize antitrust by its "schools." From the Sherman Act's passage to World War II, there were (at least) neo-classical marginalism, populism, progressivism, associationalism, business commonwealthism, and Brandeisianism. From World War II to the present, we have seen (at least, and without counting the European Ordo-Liberals) PaleoHarvard structuralism, the Chicago School, Neo-Harvard institutionalism, and Post -Chicagoans. So why not Neo-Chicago? I am already on record as suggesting the possible emergence of such a school, so it is too late for me to dismiss the entire "schools" conversation as window-dressing. This Symposium is dedicated to defining …