Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

A Member of the Law Professor Blogs Network

Saturday, February 17, 2007

TOP 10 SSRN Downloaded Papers for Antitrust Law & Policy

Posted by D. Daniel Sokol

As a regular feature, we highlight the most downloaded papers within the SSRN universe to provide our readers with a list of the most read papers on antitrust and competition policy.  We previously profiled most of these papers, which suggests that either we seem to have our pulse on what makes for an interesting paper and/or our picks help to shape people's reading habits.

TOP 10 SSRN Downloaded Papers for Antitrust Law & Policy -- December 19, 2006 to February 17, 2007

1. Antitrust
Louis Kaplow, Carl Shapiro,
Harvard Law School, University of California, Berkeley - Economic Analysis & Policy Group

2. Economics of the Internet
Nicholas Economides,
New York University - Stern School of Business

3. Public Vs. Private Enforcement of Antitrust Law: A Survey
Ilya R. Segal, Michael D. Whinston ,
Stanford University, Northwestern University - Department of Economics

4.  Re-Framing Windows: The Durable Meaning of the Microsoft Antitrust Litigation
Harry First, Andrew I. Gavil,
New York University - School of Law, Howard University - School of Law

5.  The Anticompetitive Effects of Unenforced Invalid Patents
Christopher R. Leslie,
Chicago-Kent College of Law

6.  The 99-Cent Question
Chris Sprigman,
U
niversity of Virginia - School of Law

7. A Turning Point in Merger Enforcement: Federal Trade Commission v. Staples
Jonathan B. Baker, Robert Pitofsky,
American University - Washington College of Law, Georgetown University - Law Center

8. Beyond Disclosure: The Case for Banning Contingent Commissions
Daniel Schwarcz,

Harvard Law School


9. The Admissibility of Expert Economic Testimony in Antitrust Cases
Gregory J. Werden,

U.S. Department of Justice - Antitrust Division and


10.  Monopolists Without Borders: The Instutional Challenge of International Antitrust in a Global Gilded Age
D. Daniel Sokol
University of Wisconsin Law School.

February 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 15, 2007

FTC Competition Advocacy: The Case for Patent Reform

Posted by D. Daniel Sokol

Competition advocacy is one of the most important tasks that an antitrust agency can perform.  In this role, an antitrust agency attempts to mitigate the anti-competitive effect of policy by other parts of government whether by other agencies or via the legislation process.

In its competition advocacy role, the FTC has been involved in patent reform and competition effects of the
US patent system.  Today, Suzanne Michel, the Deputy Assistant Director for Policy in the Bureau of Competition of the FTC, provided testimony at House Judiciary Committee's hearing "Innovation at Risk: The Case for Patent Reform."  Her testimony summarizes the findings and recommendations of the 2003 FTC report, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy.

February 15, 2007 | Permalink | Comments (0) | TrackBack (1)

Wednesday, February 14, 2007

New Look for the American Antitrust Institute Website

Posted by Shubha Ghosh

Take a look at http://www.antitrustinstitute.org/

February 14, 2007 | Permalink | Comments (0) | TrackBack (0)

What are the Best Souces for Antitrust/Competition Policy News?

Posted by D. Daniel Sokol

People ask me all the time what are the best sources for news developments in antitrust and competition policy.  Because over 100 countries have an antitrust agency, if I followed developments in each jurisdiction every day, I wouldn't have time to do anything else. 

Sokol's Top Antitrust and Competition Policy News Sources

1.  Thankfully, the Global Competition Review exists to uncover the hottest stories across jurisdictions.  The GCR is a daily publication (subscription required) and has its pulse on both the most important substantive developments and the interesting lateral moves of practitioners in the field.   GCR also seems to be the only group of reporters who regularly attend and report on antitrust conferences around the world.

2.  Economic consulting firm NERA provides the NERA Global Antitrust Weekly, a weekly digest of stories from major jurisdictions.

3. BNA Antitrust & Trade Regulation Report.  I read this weekly publication which has excellent U.S. coverage and some international coverage.

4.  Agency press releases.  Whatever your country of interest, look reguarly at the agency press releases.  This can provide a true wealth of information.

5.  Newspapers.  Coverage tends to be spotty and general publications, even business publications, sometimes miss (or misunderstand) the key antitrust issues.  My top three: Wall Street Journal, Financial Times and the Daily Deal.

6.  ABA Antitrust Section.  If you do not take advantage of the plethora of Antitrust Section materials that the Section regularly produces, you are really missing out.  In terms of sheer productivity and scope of coverage I doubt any other ABA Section provides more material (and of such a higher quality) as the ABA Antitrust Section.

Reader comments are welcome.  Please note a delay between the time you post and the time it appears on the blog (we continue to have spamming problems).

February 14, 2007 | Permalink | Comments (0) | TrackBack (1)

Dipping Dots--Inequitable But Not Monopolistic

Posted by Shubha Ghosh

Thanks to Dennis Crouch, over at Patently O, for sending my co-blogger a link to his post on the Federal Circuit's recent decision in Dipping Dots.  The Federal Circuit affirmed the findings of noninfringement, obviousness and inequitable conduct, but reversed on the finding of a Walker Process violation.  The appeals court found that the patent defendant failed to meet high standard of materiality required for a Walker Process claim.  The opinion can be downloaded here.  Download DDI.pdf

Overall, the opinion presents the differences between the doctrine of inequitable conduct and Walker Process claim well, avoiding the real risk of turning every case of patent invalidity into an antitrust claim.  Walker Process claims are impossible to prove, and the court's analysis does a good job of explaining why.

On a lighter note,  I am concerned that the finding of obviousness might lead to a proliferation of these frigid treats.  My spouse worked on an arbitration involving DDI when she was in private practice, and one of the rewards of her work was a freezer full of the "ice cream of the future."

February 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Institutional Analysis of Global Antitrust

Posted by Shubha Ghosh

Daniel Sokol, a Hastie Fellow at The University of Wisconsin and my co-blogger, has posted an important and stimulating working paper on SSRN entitled "Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age."  Daniel's detailed and thorough scholarship provides an institutional analysis of how to respond to cross-border antitrust and competition issues, especially in  a post-Empagran age.  Well worth a read as a fine example of institutional legal analysis and of international antitrust scholarship.

February 14, 2007 | Permalink | Comments (0) | TrackBack (1)

Tuesday, February 13, 2007

Is Trinko one of the Worst Decisions in Recent Memory?

Posted by D. Daniel Sokol

According to a new working paper by Spencer Waller, it may be.

ABSTRACT: In this comment for an upcoming symposium in the Utah Law Review in honor of the retirement of John Flynn, I examine the 2001 opinion of the DC Circuit in Microsoft and the Supreme Court's 2004 opinion in Trinko and compare them as attempts to comprehensively define the law of monopolization. Using the insights of the legal process school, I examine which opinion succeeds as a form of reasoned elaboration and which opinion will gain acceptance among lower courts and commentators in this vital area of antitrust law. I conclude that the Microsoft opinion should stand the test of time as a rigorous, intellectually honest, and well reasoned synthesis of the law of monopolization. In contrast, Trinko suffers from numerous errors of law, fact, economics, antitrust policy, and contains much unreasoned dicta that extends far beyond its narrow holding about the interface between antitrust and telecommunication regulation. Trinko thus fails the test of reasoned elaboration, one of the key hallmarks of a legitimate and persuasive judicial opinion.

February 13, 2007 | Permalink | Comments (0) | TrackBack (0)

European Commission Launches Public Consultation on Draft Merger Guidelines for Companies in a Vertical or Conglomerate Relationship

Posted by D. Daniel Sokol

Details available here

The public consultation will be open for three months and the Commission invites all interested parties to submit their observations by 12 May 2007. The draft Guidelines can be found on the website of the European Commission at: http://ec.europa.eu/comm/competition/consultations/open.html.

February 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Section 2 Hearings in Chicago - Business Executives to Speak

Posted by D. Daniel Sokol

Section 2 hearings continue in Chicago.  The sessions will be held in Room 600 of the University of Chicago Graduate School of Business’ Gleacher Center, 450 Cityfront Plaza Drive, Chicago, Illinois 60611.

Further information is provided below:

February 13, 2007

Session:

Business Testimony (9:30 A.M.–12:00 P.M. CST):

David A. Balto, Attorney, on behalf of the Generic Pharmaceutical Association.

Patrick Sheller is the Chief Compliance Officer, Eastman Kodak Company.

Ron Stern is the Vice President and Senior Competition Counsel, General Electric Company.

Business Testimony (1:30 P.M.–4:00 P.M. CST):

Stan Anderson is the Senior Counsel to the President, United States Chamber of Commerce.

Bruce Sewell is the Senior Vice President and General Counsel, Intel Corporation.

Bruce Wark is the Associate General Counsel, American Airlines, Inc.

The public and press are invited to attend all of the hearings. Seating will be on a first-come, first-served basis. Interested parties may submit written comments to the FTC and the Antitrust Division.

Further information about these hearings will be posted on the FTC’s Web site, and the Antitrust Division’s Web site. Individuals seeking more information on the hearings should contact Patricia Schultheiss, FTC, at section2hearings@ftc.gov, or Gail Kursh, Deputy Chief, Legal Policy Section, Antitrust Division, at singlefirmconduct@usdoj.gov.

February 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, February 12, 2007

Workshop on Strategic Firm-Authority Interaction in Antitrust, Merger Control and Regulation

Posted by D. Daniel Sokol

The Amsterdam Center for Law and Economics at the University of Amsterdam will present a workshop:

Strategic Firm-Authority Interaction in Antitrust, Merger Control and Regulation
Friday March 16, 2007
University of Amsterdam
Amsterdam, The Netherlands

Keynote Speakers
R. Preston McAfee (California Institute of Technology)
Stephen Calkins (Wayne State University Law School)

Plenary contributions by: Pieter Kalbfleisch (Netherlands Competition Authority), Mark Powell (White & Case LLP) and Silke Obst (European Commission).

In total 40 submitted paper presentations in parallel sessions. The presentation list is available at Download ACLEPreProgram090207-1.pdf. Registration is available here.

February 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 11, 2007

Antitrust Pedagogy Series: Greaney on Teaching Healthcare Antitrust

Antitrust and Competition Policy Blog is pleased to have Professor Thomas (Tim) Greaney of Saint Louis University School of Law guest blog in the second of our series in antitrust pedagogy. Tim is the Chester A. Myers Professor of Law and Co-Director, Center for Health Law Studies. He is a luminary in health care law and its intersection with antitrust. His most recent publications in the area have focused on hospital mergers. Within the larger health care law field, Tim is co-author of the major casebook, treatise and hornbook in the field. His guest blog is on Teaching Healthcare Antitrust.

Posted by Guest Blogger Tim Greaney

Because we have a large health law program at Saint Louis University (God bless U.S. News & World Report), I’ve had the luxury of teaching the antitrust / health care intersection in a number of different settings: the basic antitrust class; a seminar in antitrust and health care; a course entitled “health care financing and business organizations” (taken by almost all health law certificate students here); an IP-Antitrust Seminar and occasional classes taught to medical and public health students. The goals, coverage, tactics, and jokes necessarily vary with the class.

Health law cases pop up throughout the basic antitrust course: Cal Dental, Indiana Federation of Dentists, Maricopa, Jeff Parish, and Judge Posner’s HCA opinion are staples in most case books. Scattered through the course and idiosyncratic as these cases are, it’s difficult to develop an overarching account of antitrust law’s role in promoting competition in health care. However I think it important to point out that private and government litigation have served that important purpose (and occasionally still do). The healthcare cases also serve a pedagogical purpose by illustrating that antitrust doctrine needs to take into account market imperfections in order to make an accurate economic appraisal of the conduct and structure in that industry. To give one example, in Indiana Federation, the Court thrashed about in its competitive analysis, branding the dentists’ refusal to supply x-rays to third parties as  “withhold[ing] from their customers a particular service that they desire”and a "refusal to compete with respect to the package of services offered to customers." Taking into account the critical market imperfections that are dealt with by managed care (in this case via ‘utilization review’ evaluating x-rays) would have more precisely identified the effect and purpose of the conduct and revealed it as warranting summary condemnation. [This and a few dozen other examples of the neglected role of market failure are explored in my article, “Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care” in the Antitrust Law J. (2004)]. In addition, other post-Chicago items like unilateral effects in differentiated product markets can be illustrated and elaborated by considering health care markets (e.g. the merger of two sophisticated teaching hospitals in a market served by many other hospitals, U.S. v. Long Island Jewish Hospital). 

In other settings, such as health law and the health financing course, teaching antitrust is, as the saying goes, both a challenge and an opportunity. The challenge is in laying down enough of a base so those who haven’t taken an antitrust course will be on board. The opportunity is in putting the law in context and applying it given the sometimes-conflicting commands supplied by other legal doctrines (eg. Medicare anti-kickback, exempt organization, state corporate, and Stark laws). As to teaching antitrust itself, my casebook (Furrow, Greaney, Johnson, Jost & Schwartz, Health Law [5th Ed Thomson/West devotes 100 pages to the subject. My goal in the casebook was to give  students a look at the application to the health industry of the two most important antitrust concepts: conduct and structure. The former includes classic cartels and moves along the Section One continuum to advertising restraints, and other restraints carrying interesting “professionalism” justifications (standard-setting by medical specialty organizations). The book then goes on to consider the very actively litigated conduct/structural issues raised by partially integrated physician joint ventures and concludes with merger analysis. After that, (and exposure to the other areas of law mentioned above) students are ready to tackle problems (e.g. counseling regarding hospital-physician joint ventures that have both vertical and horizontal competitive dimensions and implicate all the other areas of law just mentioned.)

Finally, the health-antitrust intersection offers an opportunity to bring into class a seemingly endless stream of policy issues (e.g. health system reform proposals;  Tom Campbell’s lamentable physicians union legislation; exclusion payments involving generic drugs and the overall effect of Hatch-Waxman law; allowing HHS to negotiate directly with big pharma for Medicare Part D purchasing). It keeps you young. 

February 11, 2007 | Permalink | Comments (1) | TrackBack (0)