Antitrust and Trade Regulation Commons^™

2020 International Trade Decisions Of The Federal Circuit, Kevin J. Fandl

American University Law Review

The Court of Appeals for the Federal Circuit (“CAFC”) hears appeals from the U.S. District Courts as well as the U.S. Court of International Trade (“CIT”) about trade-related matters. The 2020 term of the CAFC with respect to appeals from the CIT included fewer precedential decisions and a move to telephonic hearings in light of Covid-19. The resulting decisions included, as usual, mostly antidumping appeals, but also a handful of classification and countervailing duty cases. In the following pages, this Article provides a selection of those decisions that may have a bearing on similar cases moving through the system. These …

Poaching, Charles A. Sullivan

American University Law Review

The last few years have seen the beginnings of what could become a radical revision of the law’s approach to restraints on competition in the labor market. While most attention has been focused on “noncompetes”—agreements between employers and their employees imposing postemployment restraints—there has also been a revival of interest in so-called “no-poaches”—agreements by which employers restrict their ability to hire each other’s workers. This new interest includes antitrust challenges and an enhanced skepticism by common law courts about enforcing such agreements. Indeed, as new laws increasingly limit the use of traditional noncompetes, no-poaches have become more attractive to employers …

Blockchain Neutrality, Samuel N. Weinstein

Articles

Blockchain technology is transforming how markets work. Blockchains eliminate the need for trusted gatekeepers like banks to execute, verify, and record transactions. In the financial markets, their disruptive potential threatens both Wall Street banks and Silicon Valley venture capitalists. How blockchain technology is regulated will determine whether it encourages or inhibits competition. Some blockchain applications present serious fraud and systemic risks, complicating regulation. This Article explores the antitrust and competition policy challenges blockchain presents and proposes a regulatory strategy, modeled on Internet regulation and net neutrality principles, to unlock blockchain’s competitive potential. It contends that financial regulators should promote blockchain …

Requiem For A Lightweight: How Ncaa Continues To Distort Antitrust Doctrine, Alan J. Meese

Faculty Publications

The Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars, and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the rule of reason because they produced significant economic harm without offsetting benefits. In so …

Rethinking "Political" Considerations In Investment, David H. Webber

Faculty Scholarship

Five years ago, Professor David H. Webber was invited to deliver an address both to our Delaware Law School community and to the Delaware Bench and Bar as Visiting Scholar in Residence of Corporate and Business Law. Webber's Speech, "Rethinking 'Political' Considerations in Investment," made several predictions about the rise of politicized investment which were quite prescient. As relevant today as when it was delivered, this piece explores the consideration of investment factors outside the traditional realm of shareholder profit maximization, both in its current state and in the future. Webber's analysis of how investors balance the role of capital …

The Price Of Prime—Consumer Privacy In The Age Of Amazon, Ariana Aboulafia, Greg Fritzius, Tessa Mears, Macy Nix

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Vertical Mergers In A Model Of Upstream Monopoly And Incomplete Information, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis

Georgetown Law Faculty Publications and Other Works

We examine the role of private information on the impact of vertical mergers. A vertical merger can improve the information that is available to an upstream monopolist because, after the merger, the monopolist can observe the cost of its downstream merger partner. In the pre-merger world, because the costs of the downstream firms are private information, the monopolist has incomplete information and cannot implement the monopoly outcome: The expected pre-merger equilibrium price of the downstream product is lower than the monopoly price. After a vertical merger, the equilibrium input price that is charged to the downstream rival can either increase …

The Easterbrook Theorem: An Application To Digital Markets, Joshua D. Wright, Murat C. Mungan

Faculty Scholarship

The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme …

The Preemption Of Collective State Antitrust Enforcement In Telecommunications, Jacob P. Grosso

University of Richmond Law Review

The dichotomy between the levels of government provided murky guidance to telecommunications firms on what behavior is anticompetitive and what decisions firms will have to spend years defending. Despite T-Mobile and Sprint agreeing to sell off several subsidiaries, helping to create a new competitor, and surviving a gamut of regulatory reviews, these companies still could not merge. At this point, preventing the deal would cause irreversible harm to the merging parties.

The conflicts that arose in the T-Mobile-Sprint merger could have been solved through the preemption of collective state antitrust enforcement in the telecommunications market, which would balance the twin …

Hacking Antitrust: Competition Policy And The Computer Fraud And Abuse Act, Charles Duan

Scholarly Articles in Law Reviews & Journals

The Computer Fraud and Abuse Act, a federal computer trespass statute that prohibits accessing a computer "without authorization or exceeding authorized access," has often been criticized for clashing with online norms, over-criminalizing common behavior, and infringing freedom-of-expression interests. These controversies over the CFAA have raised difficult questions about how the statute is to be interpreted, with courts of appeals split on the proper construction and the Supreme Courtset to consider the law in its current October Term 2020.

This article considers the CFAA in a new light, namely its effects on competition. Rather than merely preventing injurious trespass upon computers, …

Opening Remarks, Anna Antonova, Michael Burstein

Cardozo Arts & Entertainment Law Journal

The article celebrates the 75th anniversary of the Lanham Act, reflecting on its enduring influence on trademark law while addressing its evolution in response to new legal and technological challenges. It highlights the symposium's exploration of the Act's history, its adaptation to modern issues such as internet-related disputes and First Amendment concerns, and its continued relevance in shaping intellectual property law. The piece also underscores the role of the Cardozo Arts & Entertainment Law Journal as a leading platform for scholarly discourse in intellectual property and related fields.

Panel 1: The Scope And Strength Of Trademark Law, Megan K. Bannigan, Leah Chan Grinvald, Theodore H. Davis Jr., Mark P. Mckenna, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article examines the evolution and effectiveness of the Lanham Act, focusing on its impact on trademark law. It discusses how the Act's original goals, such as providing notice of trademark rights and ensuring uniformity in a national commerce context, have been partially met due to the lack of mandatory registration and judicial interpretations that have expanded trademark protections beyond initial intentions. The panelists highlight the tension between the procedural nature of the Act and the substantive changes introduced by courts, leading to both underenforcement and overenforcement issues.

Entertainment Consolidation, Content Monopolies, And The Future Of Information, Emily Faro

Cardozo Arts & Entertainment Law Journal

The acquisition of 21st Century Fox by The Walt Disney Company has raised significant antitrust concerns, as it exemplifies the challenges of modern media consolidation. This horizontal merger has substantially increased Disney's market power, particularly in the entertainment industry, leading to potential anticompetitive effects. The note argues that current U.S. antitrust laws, primarily designed to address historical monopolies, are inadequate in handling the complexities of contemporary media mergers, which often involve both horizontal and vertical integration. The analysis emphasizes the need for updated legal frameworks to consider the broader, long-term impacts of such mergers on competition and innovation.

Is It Really A #Ad? An Increase In Rising Influencers Posting Fake Sponsored Content, Amanda Guzman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Gigi, Over Here!": Celebrity Use Of Copyrighted Paparazzi Photographs, Dylan B. Reich

Cardozo Arts & Entertainment Law Journal

The note argues that celebrities should have limited rights to use paparazzi-taken photos of themselves, balancing their rights with those of photographers. It proposes that non-commercial use by celebrities could be permissible under certain legal doctrines.

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

Cardozo Arts & Entertainment Law Journal

The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one's trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on increasing …

Registration And Federalization: 75 Years Of The Lanham Act, Mark P. Mckenna, Brittany Von Rueden

Cardozo Arts & Entertainment Law Journal

The Lanham Act, enacted 75 years ago, aimed to enhance notice and uniformity in trademark law, primarily through improved registration processes. However, its goals were only partially met. While it successfully federalized trademark law, it fell short in emphasizing registration due to court interpretations that allowed enforcement of unregistered marks, leading to a more complex and expanded scope of trademark protection.

Mark Talk, Alexandra J. Roberts

Cardozo Arts & Entertainment Law Journal

The article argues that trademark law should evolve to incorporate "mark talk"—consumer discussions and usage of trademarks on social media and online platforms—as a key factor in determining secondary meaning. Traditional methods, such as advertising expenditures and sales data, are critiqued for their limitations in the digital age. The author advocates for updating legal frameworks to reflect contemporary consumer interactions, emphasizing that mark talk provides direct evidence of consumer perception and a mark's distinctiveness. However, courts and the USPTO have been slow to adopt these modern approaches, highlighting a disconnect between legal practices and the realities of digital communication.

Oligopoly Coordination, Economic Analysis, And The Prophylactic Role Of Horizontal Merger Enforcement, Jonathan Baker

Scholarly Articles in Law Reviews & Journals

For decades, the major United States airlines have raised passenger fares through coordinated fare-setting when their route networks overlap, according to the United States Department of Justice. Through its review of company documents and testimony, the Justice Department found that when major airlines have overlapping route networks, they respond to rivals’ price changes across multiple routes and thereby discourage competition from their rivals. A recent empirical study reached a similar conclusion: It found that fares have increased for this reason on more than 1000 routes nationwide and even that American and Delta, two airlines with substantial route overlaps, have come …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …