Antitrust and Trade Regulation Commons^™

The Right To Refuse To Deal, The Essential Facilities Doctrine, And The Digital Economy, George Sakkopoulos

St. Mary's Law Journal

Various commentators, as well as the 2020 report on competition in digital markets by the majority staff of the House Judiciary Committee, have advocated for the revival of the essential facilities doctrine, especially in the context of the digital economy. This Article examines the three phases in the development of the essential facilities doctrine and the right to refuse to deal—the foundations in the early twentieth century, the contraction of the right to refuse to deal and the expansion of the essential facilities doctrine in the mid-twentieth century, and the revival of the right to refuse to deal and the …

Beyond Amateurism: Examining The Potential Labor Expenses Of Ncaa Student-Athlete Employment, Alayna K. Falak

Honors Thesis

In light of recent administrative developments urging the classification of student-athletes as employees, litigation challenging the current status of student-athletes, and the Supreme Court’s willingness to tackle National Collegiate Athletic Association (NCAA) issues, many questions surrounding the future of college sports under an employment model have emerged. The authors analyzed key litigation, recent developments from administrative agencies, and academic literature. Then publicly available data was used from the NCAA, the United States Department of Labor (DOL), and other sources to construct two estimates of what it would cost the NCAA member institutions to treat their Division I athletes as employees. …

State Antitrust Enforcement: Politics Or Economics?, Nickolas Remish

Departmental Honors & Graduate Capstone Projects

Antitrust enforcement on the federal level has clear partisan influences; Democrats usually support expansive enforcement regimes while Republicans oppose them. On the state level, the ideological divide appears muddled. State attorneys general, who are mostly elected officials, are responsible for initiating lawsuits. This study seeks to determine whether state attorneys general mirror their federal counterpart in enforcing antitrust law on a partisan basis or whether unique state variables such as economic factors overwhelm ideological motivations. Public choice theory dictates politicians prioritize re-election and will adhere to constituent interest, thus providing the theoretical foundation for why politicians may tailor antitrust enforcement …

Presidential Influence On The Bureaucracy: The Curious Case Of Lina Khan, Nickolas Remish

Departmental Honors & Graduate Capstone Projects

How effective can a president be in promoting his or her policies through the bureaucracy? Most theories postulate the president has influence – via appointees, budgeting, and executive orders. This paper unpacks the president’s influence on the bureaucracy by analyzing President Biden’s effect on antitrust, particularly with regards to addressing labor concerns. Biden appears to depart from previous presidential administrations due to his heightened emphasis on labor’s need for protection and antitrust law as the optimal vehicle for helping workers. The data, pulled from federal and state court antitrust cases since 2000, relies on textual analysis with regards to the …

Clarett, Moultrie, And Applying The Nonstatutory Labor Exemption To Professional Sports’ Draft Eligibility Rules, Mathew Santoyo

Brooklyn Law Review

Collective bargaining is the mechanism by which major sports leagues and their players unions have negotiated the terms and conditions of employment for many decades. One standard provision of these collective bargaining agreements is a draft eligibility rule governing the conditions by which prospective athletes are eligible for the league’s entry draft. These collective bargaining agreements exists at the intersection of two somewhat discordant areas of law: antitrust and labor law. Under antitrust law, Congress enacted a policy favoring competition and prohibiting unreasonable restraints on trade. On the other hand, under labor law, Congress enacted a policy favoring collective bargaining. …

Intellectual Property Rights: Examining Outdated Laws, Monopolies, Manipulation, And The Need For Modernization, Maggie Moles

Economics Undergraduate Honors Theses

This thesis critically examines the shortcomings of current intellectual property (IP) laws in the face of rapid technological advancement and evolving digital landscapes. It argues that while IP laws were intended to incentivize innovation, protect creators' rights, and foster fair competition, they often fall short of these goals in practice. Through an analysis of various case studies and real-world examples, the thesis demonstrates how outdated IP laws can hinder progress, stifle creativity, and impede access to knowledge and resources, particularly in industries heavily reliant on patents and copyrights.

Furthermore, the thesis explores alternative models and proposals for reform, including open …

Recommendations To Update The Ftc & Doj’S Guidelines For Collaborations Among Competitors, Cynthia Hanawalt, Denise Hearn, Chloe Field

Sabin Center for Climate Change Law

Existing joint agency guidance from the FTC and DOJ, “Antitrust Guidelines for Collaborations Among Competitors” was written in 2000 and is misaligned with the agencies’ focus on market power considerations and protecting the competitive process. This white paper seeks to provide a rationale and suggestions for revising the collaboration guidelines. We look to examples in other jurisdictions, with an eye to their treatment of sustainability-related collaborations, as many were updated with these considerations in mind. Importantly, we do not recommend that updated guidelines follow international examples in creating explicit sustainability-related carve outs, safe harbors, or exemptions. Due to the complex …

Food Price Narratives, Tammi S. Etheridge

Scholarly Articles

The use of antitrust in the context of food is problematic because it so clearly violates the Consumer Welfare Standard as prescribed by the courts. Ultimately, antitrust rhetoric promoting ad nauseam enforcement will not improve consumer welfare. Advancing consumer welfare in the food industry must mean prioritizing lower food prices over some arbitrary threshold of market competition or protecting small farms. Courts can and should begin distinguishing these goals immediately.

Tying Law For The Digital Age, Daniel A. Crane

Notre Dame Law Review

Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with respect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A conventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Downstreaming, Rachel Landy

Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

Brandeisian Banking, Kathryn Judge

Faculty Scholarship

Banking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the …

All For One, One For None: Arrington V. Burger King Worldwide And The Single-Entity Defense For Franchises, Tyler Nappo

Cardozo Law Review

Section 1 of the Sherman Antitrust Act (Sherman § 1) proclaims contracts, combinations, or conspiracies in restraint of trade or commerce to be illegal. Thus, for an agreement to fall within Sherman § 1’s boundaries, there must be a joining together of separate actors or entities. However, for over a century since the Sherman Act’s enactment, courts have struggled to draw the line between separate business entities and single entities. This distinction became more defined with the Supreme Court’s holding in Copperweld Corp. v. Independence Tube Corp. that parent companies are incapable of conspiring with wholly owned subsidiaries. But Copperweld …

A Proposed Framework For A Federal Inevitable Disclosure Doctrine Under The Defend Trade Secrets Act, Michael J. Garrison, Dawn R. Swink, John T. Wendt

Buffalo Law Review

No abstract provided.

A Career At The Federal Trade Commission, Cardozo Antitrust Society

2023–2024 Flyers

No abstract provided.

Brief Of Professors Of Law, Business, And Economics As Amici Curiae In Support Of Appellees And Affirmance, Christopher L. Sagers, Robert K. Shelquist

Law Faculty Briefs and Court Documents

No abstract provided.

The Dark Side Of Antitrust Statements Of Interest, Christine P. Bartholomew

Journal Articles

28 U.S.C. § 517 allows the Department of Justice (DOJ) to file a statement addressing a governmental interest in any pending suit. This procedural tool laid dormant for decades, utilized sparingly in litigation involving foreign sovereigns. In the 1960s, the government expanded its use to aid in developing civil rights. In 2009, the DOJ deployed Section 517 in a new arena: antitrust. Since then, each administration has followed suit. Though initially criticized, these statements now draw praise from antitrust scholars as a cost effective means for DOJ advocacy. This Article challenges these accolades. Its foundation is an analytical assessment of …

The Angel Wears Prada, The Devil Buys It On The Realreal: Expanding Trademark Rights Beyond The First Sale Doctrine, Junajoy Vinoya Frianeza

Pepperdine Law Review

Luxury brands derive their goodwill from the high-class exclusivity and first-rate quality signified in their trademarks. The Trademark Act of 1946, commonly known as the Lanham Act, grants trademark holders the right to control use of their mark. However, under common law, the first sale doctrine restricts trademark protection after holders authorize the initial sale of their trademarked product. Such limitation particularly jeopardizes the luxury industry as trademark holders ultimately bear the loss of goodwill when counterfeit luxury goods enter the market due to the negligence of resellers. This Comment illustrates how blockchain authentication offers all luxury industry participants—the brands, …

Finansowanie Sporów Sądowych Przez Podmiot Trzeci – Perspektywa Polska, Patrycja Okońska

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

Litigation finance is a form of investment provided by external commercial entities in the context of high-value litigation initiated by those who sustained damage, particularly class actions. The global demand for such funding has led to the development of a distinct litigation finance market sector, where procedural parties can gain needed funds to pursue a legal claim from an external investor, who then receives an agreed upon proportion of the recovered damages. The potential of the institution of external litigation finance, but also the increased potential for abuse it brings, has been recognised in the European Union. In Poland, outdated …

Ogólnopolskie Seminarium Naukowe Oraz Premiera Książki Model Regulacji Gospodarczej Rynku Kolejowych Przewozów Pasażerskich. Problematyka Prawna, Katowice, 2 Lutego 2024 Roku, Marcin Kraśniewski

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

Report from the National scientific seminar and the Model regulacji gospodarczej rynku kolejowych przewozów pasażerskich. Problematyka prawna book launch, Katowice, February 2^nd 2024

Możliwość Zaskarżenia Do Organu Regulacyjnego Opłat Za Dostęp Do Infrastruktury, Których Okres Ważności Już Upłynął, Iwona Miedzińska

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

The article deals with the issue of the possibility for railway carriers to appeal, to the relevant regulatory body, fees charged by the railway infrastructure manager for access to its railway infrastructure whose validity period has already expired, the so-called “old fees”. This issue is the subject of a judgement of the Court of Justice of the European Union in case C-582/22 Die Länderbahn et al. The analysis presented in this article also covers institutional and legal solutions applicable in this regard in the Polish legal system.