Antitrust and Trade Regulation Commons^™

Merger Simulation In An Administrative Context, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This article addresses the application of the economic literature on merger simulation to the practical context of antitrust enforcement. It highlights the value of simple simulations as a basis for creating screens and presumptions – particularly the gross upward pricing pressure index for the preliminary review of unilateral effects among sellers of branded consumer products and a presumption based on identifying mavericks for the analysis of coordinated effects – in order to provide guidance to merging firms and judges, who may not have specialized competition policy expertise. The article explains why antitrust agencies should rely on these approaches to identify …

Sector-Specific Competition Enforcement At The Fcc, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

This comment explains how and why sector-specific enforcement by the Federal Communications Commission (FCC) complements generalist competition enforcement by the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC), to the benefit of competition in the communications industry. It illustrates ways in which a sector-specific agency such as the FCC can foster competition by comparing merger reviews by the FCC and DOJ in the wake of the 1996 Telecommunications Act.

The Provider-Monopoly Problem In Health Care, Clark C. Havighurst, Barak D. Richman

Faculty Scholarship

Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so …

Silence Of The Spam: Improving The Can-Spam Act By Including An Expanded Private Cause Of Action, David J. Rutenberg

Vanderbilt Journal of Entertainment & Technology Law

In the last decade, email spam has become more than just an annoyance for email users. Unsolicited messages now comprise more than 95 percent of all email sent worldwide. This costs US businesses billions of dollars in lost productivity each year. The US Congress passed the CAN-SPAM Act of 2003 to regulate the spam industry. Unfortunately, data show that spam only increased since the Act's passage. Part of the reason for this failure is that the Act only authorizes the Federal Trade Commission, state attorneys general, and Internet Service Providers to bring action under its provisions. Each of these authorized …

Non-Per Se Treatment Of Buyer Price-Fixing In Intellectual Property Settings, Hillary Greene

Faculty Articles and Papers

The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens. This article challenges the wholesale adoption of either proposition within the context of buyer price-fixing in intellectual property markets. More specifically, it examines antitrust law’s role in protecting patent holders’ rents through its condemnation of otherwise ostensibly efficient buyer price fixing. Using basic economic analysis, this article refines the legal standards applicable at this point of intersection between antitrust and patent law. In particular, the author recommends the limited abandonment of …

Potential Game Changers Only Have Eligibility Left To Suit Up For A Different Kind Of Court: Former Student-Athletes Bring Class Action Antitrust Lawsuit Against The Ncaa, Christine A. Burns

Journal of Business & Technology Law

No abstract provided.

Novel Neutrality Claims Against Internet Platforms: A Reasonable Framework For Initial Scrutiny , Jeffrey Jarosch

Cleveland State Law Review

This Article examines a recent trend in which the Federal Trade Commission and other enforcement agencies investigate Internet platforms for behavior that is insufficiently “neutral” towards users or third parties that interact with the platform. For example, Google faces a formal FTC investigation based on allegations that it has tinkered with search results rather than presenting users with a “neutral” result. Twitter faces a formal investigation after the social media service restricted the ways in which third party developers could interact with Twitter through its application programming interface (“API”). These investigations represent a new attempt to shift the network neutrality …

Bricks, Mortar, And Google: Defining The Relevant Antitrust Market For Internet-Based Companies, Jared Kagan

NYLS Law Review

No abstract provided.

Extending The Fraud-On-The-Market Presumption Beyond Basic: A Case Of Poor Analogies And Over-Eager Courts, Dana Lai

NYLS Law Review

No abstract provided.

Standardizing Warhol: Antitrust Liability For Denying The Authenticity Of Artwork, Gareth S. Lacy

Washington Journal of Law, Technology & Arts

Art authentication boards are powerful; their determinations of authenticity can render artwork worthless or add millions of dollars to market value. In the past, boards that denied authenticity of artwork typically risked tort liability for disparagement, defamation, or fraud. In Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, Inc., however, an art collector alleged monopolization and market restraint after an authentication board denied the authenticity of his Andy Warhol painting by stamping “DENIED” on the back of it. The case is the first antitrust lawsuit against an authentication board to survive the defendant’s motion to dismiss. The decision …

A Re-Examination Of The Convergence Of Antitrust Law And Professional Sports Leagues, Christine A. Miller

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

American Needle And The Application Of The Sherman Act To Professional Sports Leagues, Gregory J. Werden

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Why Copperweld Was Actually Kind Of Dumb: Sound, Fury And The Once And Still Missing Antitrust Theory Of The Firm, Chris Sagers

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Not With A Bang, But A Whimper: Congress's Proposal To Overturn The Supreme Court's Leegin Decision With The Discount Pricing Consumer Protection Act Of 2009, Ariana E. Gillies

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Ftaia And Claims By Foreign Plaintiffs Under State Law, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In Empagran, the Supreme Court construed the Foreign Trade Antitrust Improvements Act (FTAIA) to severely limit the extraterritorial reach of the Sherman Act. In the wake of Empagran and the D.C. Circuit’s subsequent ruling on remand in that case, foreign plaintiffs asserting claims under U.S. antitrust laws for injuries based on transactions consummated abroad have been largely shut out of federal courts. Foreign plaintiffs, however, have not abandoned their efforts to obtain relief in American courts for anticompetitive acts committed in the international arena. Rather, they have turned to claims under various state laws, including state antitrust laws, …

Making Sense Of Twombly, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In May 2007, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Reversing the Second Circuit, the Court held that an antitrust complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray averments of agreement that amounted merely to legal conclusions, failed as a matter of law to state a claim for conspiracy in violation of § 1 of the Sherman Act and had been properly dismissed by the trial court. The Court then proceeded to (1) redefine the concept of notice pleading by "retiring" …

The Elephantine Google Books Settlement, James Grimmelmann

Cornell Law Faculty Publications

The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.

In this essay, I argue for the critical importance of …

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Articles

The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …

"Tour De Farce!" Misblurb Marketing In Film And Publishing, Matthew Tynan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Moving Beyond New Kids And Century 21: A New Test For Nominative Fair Use In The Domain Name Context, Robert Isabella

Cardozo Arts & Entertainment Law Journal

No abstract provided.