Antitrust and Trade Regulation Commons^™

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 …

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.

Marcin Kraśniewski, Model Regulacji Gospodarczej Rynku Kolejowych Przewozów Pasażerskich. Problematyka Prawna, Instytut De Republica, Warszawa 2023, Ss. 680, Michał Będkowski-Kozioł

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

Review of the book by Marcin Kraśniewski, Model regulacji gospodarczej rynku kolejowych przewozów pasażerskich. Problematyka prawna [The economic regulation model of the market of passenger railroad transport. Legal issues], Instytut De Republica, Warszawa 2023, pp. 680

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

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

Antitrust Law For Blockchain Technology, Seth C. Oranburg

Law Faculty Scholarship

Applying traditional antitrust law to the modern world wide web could break the internet. Lina Khan, the FTC’s current chair, is pushing for enhanced antitrust enforcement to break up Big Tech, seemingly based on the assumption that antitrust law is the right tool for ensuring a free and equitable internet. This assumption may be in error, and this Article seeks to explain why. Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different …

Innovation Misunderstood, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced.

In this paper, we reflect on the D.C. Circuit’s 2023 ruling in N.Y. v Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded by …

Antitrust & Ai Supply Chains, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

Will AI technology disrupt the current Big Tech Barons, foster competition, and ensure future disruptive innovation that improves our well-being? Or might the technology help a few ecosystems become even more powerful?

To explore this issue, our paper outlines the current digital market dynamics that lead to winner-take-most-or-all ecosystems. After examining the emerging AI foundation model supply chain, we consider several potential antitrust risks that may emerge should certain layers of the supply chain become concentrated and firms extend their power across layers. But the anticompetitive harms are not inevitable, as several countervailing factors might lessen or prevent these antitrust …

Antitrust Against The Anti-Hero: Ticketmaster Monopoly Wages Ongoing War On The Concert Industry, Claire J. Neiberg

Duquesne Law Review

Taylor Swift is one of the biggest names in the music industry. Following her rise to fame in 2006, Swift made history as the first female country singer to write an entire U.S. platinum-certified album, and over the next seventeen years, she has curated a discography spanning multiple genres and reaching millions of listeners. When Swift announced ticket sales for her 2023 The Eras Tour, fans were met with an obstacle that concertgoers know all too well: Ticketmaster and its monopolistic practices. Founded in 1976, Ticketmaster is the world's largest ticketing sales and distribution company and the global market leader …

The Secret's Out: The Role Of Restrictive Covenants In Trade Secret Law, Magdalene Eallonardo

American University Business Law Review

Trade secrets derive economic value from their classified nature, which leads companies to implement legal measures to prevent the spread of their confidential company information to the public. Restrictive covenants within employment agreements are a common form of these legal measures. However, because of employers’ restrictive terms, states are placing regulations on the scope of these agreements. With limited ability to contract their employees away from sharing their confidential information with direct competitors, companies utilize alternate methods to protect their trade secrets.

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Scholarship

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …