Antitrust and Trade Regulation Commons^™

The Radical Challenge To The Antitrust Order, Daniel A. Crane

Articles

The U.S. antitrust order is undergoing a radical challenge along three key dimensions. First, the challengers seek to denaturalize markets and replace a commitment to competition with an anti-domination norm. Second, the challengers seek to dramatically alter institutional arrangements, with Congressional legislation and agency rulemaking replacing antitrust's longstanding commitment to judicial common law incrementalism. Finally, the challengers would replace the antitrust order's preferred juridical approach-open-ended rule of reason analysiswith a return to bright-line prohibitory rules and a related demotion of economists as decision-makers. Each of these challenges entails significant consequences, many of them unintended, counter-productive, or perverse. Contrary to the …

The American Antimonopoly Tradition: Origins, Contradictions, Transformations, Daniel A. Crane

Articles

Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades …

Consumption Governance: The Role Of Production And Consumption In International Economic Law, Timothy Meyer

Faculty Scholarship

Over the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.

This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe …

Beyond Nil, William W. Berry, Iii

Vanderbilt Journal of Entertainment & Technology Law

The name, image, and likeness (NIL) changes and shifting landscape obscure more existential threats to the student-athlete model on the horizon. The television money that Power Five conference teams receive still comprises much of the budget of athletic departments. The football and basketball players—-the revenue sport athletes-—may have a claim to a greater share of this revenue.

Some athletes argue that they are employees of their universities, which would entitle them not only to additional benefits but also to other tools, such as collective bargaining. All of these advantages could make universities responsible for increasing the amount of remuneration available …

Antitrust And Pop Culture Iii: Direct To Streaming, Spencer Weber Waller

Faculty Publications & Other Works

When you reach the third in a series of movies, it usually signals a dramatic decline in quality. It is also the time when you notice that the star in the series goes from being someone recognizable, like John Cena, to someone whose real name you can't remember, but vaguely recall was a professional wrestler, reality tv star, or both. So it is with great trepidation that I return for one final edition of Antitrust and Pop Culture 3 before returning to my current and long overdue book project on competition and collusion in the American theatre. But first, some …

Deconstructing Trinko, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Recent monopolization cases against Google and Facebook brought by the Justice Department and the Federal Trade Commission signal that the United States is at the dawn of a new era of aggressive antitrust enforcement. If those cases are to be harbingers of an antitrust renaissance, then antitrust enforcers must confront and successfully overcome the Supreme Court’s 2004 decision in Trinko, which has cast a long shadow over antitrust enforcement efforts in monopolization cases. In breathtakingly broad and provocative language that is decidedly unsympathetic to enforcement of §2 of the Sherman Act, particularly in unilateral refusal to deal cases, …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Jack Daniel's And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Cardozo Arts & Entertainment Law Journal

The article examines the Supreme Court's decision in Jack Daniel's v. VIP Products and its implications for the use of trademarks in artistic and expressive works. The Court's ruling established a "trademark use" doctrine, distinguishing between uses of trademarks as a designation of source for goods and non-trademark, expressive uses. While the decision does not overturn the Rogers v. Grimaldi test, it creates uncertainty in applying Rogers to expressive works, leading to inconsistent lower court decisions and threatening First Amendment protections for creative uses of trademarks.

Exploring The Nexus Between European Competition Law And Democratic Society: A Case Of Political Microtargeting, Viktorija Morozovaite, Anna Gerbrandy

Yearbook of Antitrust and Regulatory Studies

The nexus between European competition law and democracy has been widely researched. Against the background of the ongoing digital transition and the power of big technology companies, this contribution aims to advance the debate by focusing on a specific example of political microtargeting and its effects on the (digital) public sphere. It explores the potential role of European competition law in ameliorating these emergent harms. The argument is developed by showing that the role of big technology companies in political microtargeting processes extends beyond passive facilitators. By following financial incentives and treating citizens as consumers, these companies, in effect, reduce …

Power, Media Pluralism, And Democracy – Regulatory, Legal, Or Extra-Legal Responses International Conference Warsaw, 16–17 November 2023 ‘Democracies Die In Silence’, Maciej Bernatt, Anna Gerbrandy, Małgorzata Kozak, Pauline Phoa

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Antitrust Standing For Umbrella Purchasers, Ahmed Alfaris

University of San Francisco Law Review

No abstract provided.

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Antitrust, Amazon, And Algorithmic Auditing, Jens Frankenreiter, Abhisek Dash, Abhijnan Chakraborty, Saptarshi Ghosh, Animesh Mukherjee, Stefan Bechtold, Krishna P. Gummadi

Scholarship@WashULaw

In digital markets, antitrust law and special regulations aim to ensure that markets remain competitive despite the dominating role that digital platforms play today in everyone's life. Unlike traditional markets, market participant behavior is easily observable in these markets. We present a series of empirical investigations into the extent to which Amazon engages in practices that are typically described as self-preferencing. We discuss how the computer science tools used in this paper can be used in a regulatory environment that is based on algorithmic auditing and requires regulating digital markets at scale.

Big Tech Becomes Psychic: The End Of Personal Autonomy, Zachary Williams

Journal of Law, Technology, & the Internet

Individual choice is being threatened. Private companies already held the ability to nudge consumer choices with targeted advertising. Now, with the rise in data collection and the innovation of technology and machine learning, companies are beginning to garner the ability to entirely manipulate them. Major companies can create a psychographic profile of any user using copious amounts of data collected and stored in what is essentially a library of information on each user. With access to personal or sensitive data from multiple digital markets, the profile could not only correctly identify not only a user’s likes and dislikes, but even …

Keynote Address: Adjudicating Art, Amy Adler

Cardozo Arts & Entertainment Law Journal

The keynote address critiques the Supreme Court's decision in Andy Warhol Foundation v. Goldsmith for its flawed approach to interpreting the meaning of art in copyright law, particularly in the context of fair use. It argues that courts are ill-equipped to determine the meaning of art, as art often resists reduction to discrete messages or meanings. The Court's reliance on visual analysis and its failure to provide clear guidance on how to assess meaning exacerbate these problems, leading to confusion in lower courts and potentially stifling artistic expression.