Antitrust and Trade Regulation Commons^™

Financial Instruments Of Green Transition, Dariusz Michalski, Paweł Hawranek

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

Green transition creates change not only for the real economy, but also for widely perceived finance, exposing them both to risks and opportunities. This is of fundamental significance for enterprises and financial institutions, which need to adapt. Risk increases in areas subjected to regulatory and market pressure, forcing changes in market strategies or production methods. Regulations may present opportunities as well, and those may include clean technologies, in particular technologies aiming to reduce greenhouse gas emissions, the development of renewable energy sources, a digital revolution on the energy market, and introducing new elements into the financial market. Taking these trends …

Current Selected Problems In The Energy Sector, Marzena Czarnecka, Marcin Kraśniewski

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

From the Editors-in-Chief

Entire Issue Vol. 12 No. 2

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

Vol 12(2)

Table Of Contents

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

Table of Contents

Critiquing The Sec's Ongoing Efforts To Regulate Crypto Exchanges, Carol R. Goforth

William & Mary Business Law Review

Despite the so-called “Crypto Winter” in the spring of 2022, which saw a deep plunge in global crypto markets, interest in the appropriate way to develop, use, and regulate cryptoassets and crypto-based businesses continues to be high. In the United States, a Presidential Executive Order and multiple bills that seek to tackle various issues of crypto regulation are regularly highlighted in the news, suggesting the appropriate treatment of crypto is a growing national priority. Despite these discussions, which tend to focus on finding a balanced way to regulate those within the industry without stifling the technology, the Securities and Exchange …

Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras

Utah Law Review

The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust …

A Chair With No Legs? Legal Constraints On The Competition Rule-Making Authority Of Lina Khan's Ftc, Jennifer Cascone Fauver

William & Mary Business Law Review

Upon her appointment to the chair position of the Federal Trade Commission (FTC), Lina Khan wasted little time asserting that the Agency possesses the regulatory authority to promulgate rules related to unfair methods of competition. And the President has supported the Chair’s proffered authority, requesting that the Agency use that authority to address competition concerns across the U.S. economy. Chair Khan’s interpretation of the FTC Act relies on a single case decided by the Supreme Court in 1973—National Petroleum Refiners—and judicial deference under Chevron. However, while simplistic in its logic, Chair Khan’s support for the FTC’s competition …

The Factor/Element Distinction In Antitrust Litigation, Christopher R. Leslie

William & Mary Law Review

Most price-fixing litigation turns on whether the plaintiffs can present sufficient circumstantial evidence from which a reasonable jury could infer that the defendants did, in fact, conspire to raise prices. This generally entails the proffering of plus factors, a type of evidence that suggests parallel conduct by the defendants was the product of collusion, not independent decisions. As their name suggests, plus factors are just that—factors. Proving a collection of factors may be necessary for a plaintiff’s case, but no individual factor is ever required. If it were, it wouldn’t be a factor; it would be an element.

Several federal …

Race-Ing Antitrust, Bennett Capers, Gregory Day

Michigan Law Review

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Running A Different Route: How Youtube Tv Plans To Avoid Antitrust Violations, Brody Shea

SLU Law Journal Online

After reaching a deal this past December, YouTube TV is now the sole option for NFL Sunday Ticket subscribers. By providing out-of-market sports games in a bundled package, YouTube TV runs the risk of violating the Sherman Antitrust Act. In this article, Brody Shea addresses how YouTube TV can avoid future litigation.

Gender, Credentials, And M&A, Tracey E. George, Mitu Gulati, Albert Yoon

BYU Law Review

For the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20% to 25% of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10% of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials—both …

The Failure Of Market Efficiency, William Magnuson

BYU Law Review

Recent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, …

In Support Of Ureaa: The Case For Timely, Uniform, And Comprehensive Action Against Restrictive Employment Agreements, Ryan Greenberg

University of Miami Business Law Review

Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law …

Anticompetitive Corporate Spin-Offs, Alexa Rosen Grealis

University of Miami Business Law Review

Section 355 of the Internal Revenue Code allows corporations to “spin-off” parent-controlled businesses tax-free. Traditionally an important tool for divestitures and restructurings with U.S. tax consequences, recent trends suggest section 355 is also of interest to firms facing US antitrust consequences. Statements and maneuvering by some such companies indicate firms are considering spinning-off businesses to avert liability and ‘break up’ on their own terms. Despite widespread renewed interest in using antitrust laws to break up large corporations, the antitrust implications of corporate spin-offs have thus far escaped scholarly notice and scrutiny.

This Note posits that it is a mistake to …

Epic Games, Inc. V. Apple, Inc.: An Epic Opinion For Software Developers, Gabriella Veronica Coffield

University of Miami Business Law Review

Aside from Google Play, Apple’s App Store is where the majority of apps are downloaded from across the world. Recently, Apple has faced scrutiny for its management of the App Store and the control Apple has over the market due to the lack of competition. Additionally, developers have criticized the 30% fee Apple charges them for in-app purchases. The recent ruling by the Northern District of California in Epic Games, Inc. v. Apple, Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021) addressed this issue and issued an injunction allowing the possibility for developers to direct consumers to external links …

Hospital Mergers: The Symptoms Of Anticompetitive Consolidation & A Routine Checkup On The Horizontal Merger Guidelines, Stefan Rao Kostas

University of Miami Business Law Review

In 2021, President Biden issued an executive order that addressed the negative implications of market concentration within the healthcare industry. Specifically, President Biden called for the revision of the Horizontal and Vertical Merger Guidelines to enact antitrust safeguards that limit unchecked hospital mergers and promote competition. This Article delves into the role of the healthcare sector in the U.S. economy and how the current state of hospital mergers limits competition and, thus, the quality of care available to patients. Further, this Article studies U.S. federal regulations, case law, and merger retrospectives to uncover pitfalls within the current Horizontal Merger Guidelines. …

Now Streaming: How Streaming Services Are Following In The Antitrust Footsteps Of Hollywood’S Golden Age, Megan Elizabeth Norris

University of Miami Business Law Review

The entertainment industry is undergoing quite the transformation following the recent termination of the Paramount Consent Decrees, which effectively regulated the industry to prevent monopolization and promote competition for almost a century. The industry now faces a drastic surge in the utilization of streaming services and a new wave of antitrust issues.

“With great power comes great responsibility;” however, the dominant streaming companies in the industry have raised suspicion about emerging anticompetitive concerns. While long overdue, the termination of the Paramount Consent Decrees leaves a gaping hole in antitrust policy regarding the nuanced business practice of streaming platforms. Existing antitrust …

Czy Bez Regulacji Możliwa Jest Ekologiczna Kolej?, Ewelina Nieznalska, Anna Głusiec

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

This article deals with issues related to the introduction of ecological railways, and legal regulations in this area in Poland and in the European Union. The article provides an attempt to answer the question whether it is possible to introduce ecological railways without creating appropriate legal regulations within EU Member States.

Evaluating Antitrust Remedies For Platform Monopolies: The Case Of Facebook, Seth G. Benzell, Felix B. Chang

Economics Faculty Articles and Research

This Article advances a framework to assess antitrust remedies and policy interventions for platform monopolies. As prosecutors and regulators barrel forward against digital platforms, soon it will fall upon courts and administrative agencies to devise remedies. We argue that any sensible solution must include quantification of the welfare effects on a platform’s various constituents. The Benzell-Collis model predicts the effects of proposed solutions on a platform’s profits and the welfare of its users. The model also considers additional aspects of welfare unique to the social media setting, such as digital platforms’ nonmonetary goals, platform addiction, and externalities from platform use. …

Addressing Personal Data Collection As Unfair Methods Of Competition, Maurice E. Stucke

Scholarly Works

Enforcers, policymakers, scholars, and the public are concerned about Google, Apple, Facebook, Amazon, and recently Microsoft and their influence. That influence comes in part from personal data. These companies are “data-opolies,” in that they are powerful firms that control our data. The data comes from their vital ecosystems of interlocking online platforms and services, which attract users; sellers; advertisers; website publishers; and software, app, and accessory developers.

The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Cutting across political lines, many Americans think Big Tech’s economic power is a …