Antitrust & Trade Law
Reimagining the Governance of College Sports After Alston
John T. Holden, Marc Edelman, Thomas A. Baker III, and Andrew G. Shuman
Abstract The summer of 2021 marked a major inflection point in the external governance of college sports after nearly half a century of federal and state governments taking a hands-off approach regarding the rights of college athletes. First, nearly all at once several states passed laws granting college athletes the right to endorse products. Next, […]
Tech Giant Exclusion
John B. Kirkwood
Abstract There is no topic in regulatory policy that is more pressing and more controversial than what to do about the tech giants—Google, Facebook, Amazon, and Apple. Critics claim that these powerful platforms crush competitors, distort the political process, and elude antitrust law because the law cares only about consumer prices. The only solution, critics […]
DOJ’s Failure to Prove Its “Killer Acquisition” Claim In Sabre/ Farelogix and Parallels to Other Recent Government Merger Litigation Losses
Steven C. Sunshine and Julia K. York
Abstract On August 20, 2019, the U.S. Department of Justice (DOJ) sued to block Sabre Corporation (Sabre), a provider of a global distribution system (GDS) to travel agents, from acquiring Farelogix, Inc. (Farelogix), an IT provider to airlines. DOJ advocated a killer acquisition theory, portraying Sabre as a dominant firm intent on “tak[ing] out” Farelogix, […]
Merger Law for Biotech and Killer Acquisitions
D. Daniel Sokol
Abstract This Essay suggests a framework for how to conceptualize “killer acquisitions” in the biotech sector. In a killer acquisition, a larger branded pharmaceutical company buys a start-up company with a pipeline product with the intention to shut the pipeline product down. The Essay offers a way to police against acquisitions that may hurt consumers […]
Regulation and the Marginalist Revolution
Herbert Hovenkamp
Abstract The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every […]
Vertical Mergers and Entrepreneurial Exit
D. Daniel Sokol
Abstract The idea that tech companies should be permitted to acquire nascent start-ups is under attack from antitrust populists. Yet, this debate on vertical mergers has overlooked important empirical contributions regarding innovation-related mergers in the strategy literature. This Article explores the extant empirical strategy literature, which generally identifies a procompetitive basis that supports vertical mergers […]
The Rule of Reason
Written by: Herbert Hovenkamp
Abstract Antitrust’s rule of reason was born out of a thirty-year Supreme Court debate concerning the legality of multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so […]
Henry N. Butler, REMS-Restricted Drug Distribution Programs and the Antitrust Economics of Refusals to Deal with Potential General Competitors
The Food and Drug Administration Amendments Act of 2007 (FDAAA) grants the Food and Drug Administration (FDA) authority to require a Risk Evaluation and Mitigation Strategy (REMS) from drug manufacturers to ensure that a certain drug’s benefits outweigh its risks. Through REMS, the FDA restricts the distribution of drugs with dangerous characteristics, such as high […]
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation
Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax […]
Robert D. Sowell, New Decisions Highlight Old Misgivings: A Reassessment of the Foreign Trade Antitrust Improvements Act Following Minn-Chem
What role does the United States play in policing international commerce? At what point do the laws of the United States end and those of other nations begin? These questions, among others, arise in determining when U.S. antitrust laws apply to foreign conduct. Looking back, the Sherman Act, for some time, has applied to foreign […]
Robert D. Sowell, Misuse of Information Under the Computer Fraud and Abuse Act: On What Side of the Circuit Split Will the Second and Third Circuits Wind Up?
The Computer Fraud and Abuse Act (CFAA) has reached a breaking point. The much-discussed issue is whether the CFAA provides a cause of action against persons who use electronic information in a way that violates a relevant computer-use policy. Four circuit courts of appeals have held that the CFAA provides a cause of action for […]
Robert D. Sowell, New Decisions Highlight Old Misgivings: A Reassessment of the Foreign Trade Antitrust Improvements Act Following Minn-Chem
What role does the United States play in policing international commerce? At what point do the laws of the United States end and those of other nations begin? These questions, among others, arise in determining when U.S. antitrust laws apply to foreign conduct. Looking back, the Sherman Act, for some time, has applied to foreign […]
Thomas J. Horton, Robert H. Lande, & Virginia Callahan APPENDIX
This appendix compares the quality of the investigatory and local journalism contained in “old media” with that contained in “new media” by using the metrics the journalism industry itself uses. We ascertain which type of media has won most of the journalism awards in the years since these awards became open to the new media. […]
Thomas J. Horton & Robert H. Lande, Should the Internet Exempt the Media Sector From the Antitrust Laws?
Suppose the twenty largest traditional news media companies in the United States, including the Wall Street Journal, New York Times, Washington Post, ABC, NBC, CBS, Fox, and CNN, announced the merger of their news operations. They would likely claim that this merger would result in tremendous cost savings by eliminating duplicative news gathering expenses. They would be correct. They […]
David Haddock, Tonja Jacobi, Matthew Sag, League Structure & Stadium Rent Seeking—the Role of Antitrust Revisted
Professional North American sporting teams receive enormous public funding for new and renovated stadiums after threatening to depart their hometowns, or by actually moving elsewhere. In contrast, English sporting teams neither receive much public money for such projects, nor move towns. This Article argues that no inherent cultural or political transatlantic variations cause […]
Henry N. Butler & Joshua D. Wright, Are State Consumer Protection Acts Really Little-FTC Acts?
63 Fla. L. Rev. 163 (2011) | | | | ABSTRACT :: State Consumer Protection Acts (CPAs) were designed to supplement the Federal Trade Commission’s (FTC) mission of protecting consumers and are often referred to as “Little-FTC Acts.” There is growing concern that enforcement under these acts is not only qualitatively different than FTC enforcement […]
George D. Brown, Accountability, Liability and the War on Terror—Constitutional Tort Suits as Truth and Reconciliation Vehicles
63 Fla. L. Rev. 193 (2011)| | | | ABSTRACT :: This Article examines the role of civil suits in providing accountability for the Bush administration’s conduct of the “war on terror.” There have been calls for a “Truth and Reconciliation Commission” to perform this function, almost like a retroactive impeachment of President Bush. For […]
Hovenkamp Herbert, Federal Trade Commission and the Sherman Act
62 Fla. L. Rev. 871 (2010) | | | INTRODUCTION :: The Federal Trade Commission was created in 1914 with the authority to identify and condemn “[u]nfair methods of competition.” The FTC, originally referred to as an “interstate trade commission,” was part of President Woodrow Wilson’s progressive campaign promise against big business, and much of […]
Michael A. Carrier, A Real-World Analysis of Pharmaceutical Settlements: The Missing Dimension of Product Hopping
62 Fla. L. Rev. 1009 (2010) | | | | ABSTRACT :: The pharmaceutical industry plays an important role in improving human health. But it also provides the setting for some of the most concerning issues in the patent-antitrust intersection today. Two activities are particularly worrisome. First, brand-name pharmaceutical firms and generic companies have settled […]
Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level
61 Fla. L. Rev. 1 (2009) | | | | ABSTRACT :: Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance […]
Sapna Kumar, The Other Patent Agency: Congressional Regulation of the ITC
61 Fla. L. Rev. 529 (2009) | | | | ABSTRACT :: The United States International Trade Commission has recently experienced a dramatic increase in patent infringement investigations under § 337 of the Tariff Act of 1930. In fact, the number of patent enforcement actions submitted to the ITC has nearly doubled in the last […]
Jessica Jackson, Much Ado About Nothing? The Antitrust Implications of Private Equity Club Deals
60 Fla. L. Rev. 697 (2008) | | | | INTRODUCTION :: In May 1976, with merely $ 120,000 and a few metal chairs left behind from a prior tenant, Kolberg Kravis Roberts & Co. (KKR) opened its doors. Though few people outside Wall Street circles knew of this start-up company, by the 1980s its […]
Larry Dougherty, Does a Cartel Aim Expressly? Trusting Calder Personal Jurisdiction when Antitrust Goes Global?
60 Fla. L. Rev. 915 (2008) | | | | INTRODUCTION :: Suppose your law firm represents CrabApple, the large, California-based manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. […]
Simon A. Rodell, Antitrust Law: The Fall of The Morton Salt Rule in Secondary-Line Price Discrimination Cases
58 Fla. L. Rev. 967 (2006) | | | | TEXT :: Petitioner manufactures and sells custom-made heavy-duty trucks. Respondent and other Volvo dealers bid on sales to specific retail customers. In preparing bids, Respondent and other dealers routinely ask Petitioner for wholesale price concessions, which Petitioner grants selectively. Respondent sued in district court under […]
Jordan G. Lee, Section 12 of The Clayton Act: When Can Worldwide Service of Process Allow Suit in any District?
56 Fla. L. Rev. 673 (2004) | | | | INTRODUCTION :: Few would claim that the requirements for personal jurisdiction in federal courts, along with those for venue, are simple to understand with unambiguous definitions and clear concepts. To make matters more complex, certain areas of the law have specific venue and personal jurisdiction […]