Chris Noonan
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199207527
- eISBN:
- 9780191708817
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207527.003.0008
- Subject:
- Law, Public International Law, Competition Law
This chapter examines the scope of application of the competition laws in the US, the EU, and Japan. A number of legal rules determine the effective scope of application of competition laws. The ...
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This chapter examines the scope of application of the competition laws in the US, the EU, and Japan. A number of legal rules determine the effective scope of application of competition laws. The analysis suggests a trend towards acceptance of the exercise of jurisdiction based on anticompetitive effects.Less
This chapter examines the scope of application of the competition laws in the US, the EU, and Japan. A number of legal rules determine the effective scope of application of competition laws. The analysis suggests a trend towards acceptance of the exercise of jurisdiction based on anticompetitive effects.
Daniel L. Rubinfeld
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.003.0006
- Subject:
- Economics and Finance, Behavioural Economics
This paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven ...
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This paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven solely by a group of conservative antitrust legal and/or economic scholars. Differences among antitrust economists are as likely due to the fact economists hold a range of views as to the meaning of economic efficiency, and they differ significantly in their beliefs as to the likely efficacy of government intervention. The paper begins with an overview of the history of antitrust policy. It explains how important precedents in the law have followed, albeit with a substantial lag, important developments in the economics of industrial organization that serve as important underpinnings of the law. It then explains why and how economists' views of antitrust policy differ, and how and why conservative economics has overshot the mark to some degree.Less
This paper suggests that while the influence of industrial organization economics has grown substantially over time, it would be overly simplistic to characterize that influence as having been driven solely by a group of conservative antitrust legal and/or economic scholars. Differences among antitrust economists are as likely due to the fact economists hold a range of views as to the meaning of economic efficiency, and they differ significantly in their beliefs as to the likely efficacy of government intervention. The paper begins with an overview of the history of antitrust policy. It explains how important precedents in the law have followed, albeit with a substantial lag, important developments in the economics of industrial organization that serve as important underpinnings of the law. It then explains why and how economists' views of antitrust policy differ, and how and why conservative economics has overshot the mark to some degree.
Robert Pitofsky
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.003.0001
- Subject:
- Economics and Finance, Behavioural Economics
This chapter presents four papers from some of the most eminent people in the antitrust field. It analyzes “barriers to entry” from a practical rather than theoretical point of view, and concludes ...
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This chapter presents four papers from some of the most eminent people in the antitrust field. It analyzes “barriers to entry” from a practical rather than theoretical point of view, and concludes that conservatives seem to be generous in allowing entrenched dominant firms to rely on a variety of coercion and intimidation tactics. It notes a wide-spread sense of “something gone wrong” with today's antitrust enforcement, in particular a growing sense of too much emphasis on over-simplified economic models. The chapter then provides a full and fair historic review of Warren Court excesses, and the Chicago School's remarkable influence in reversing some trends that most would ridicule today. It gives examples of areas where the Chicago School has not prevailed because of unrealistic economic approaches. It then emphasizes the complexity of evaluating the successes and failures of the Chicago School, noting examples of each kind of outcome. Finally, the chapter notes that many changes over the last half century, for better or worse, are the result of a variety of influences—not just fashions of economic analysis. It concludes that there are significant areas where extreme applications of conservative economic thought have “overshot the mark” and expresses concern that any such academic influences may lead to under-enforcement.Less
This chapter presents four papers from some of the most eminent people in the antitrust field. It analyzes “barriers to entry” from a practical rather than theoretical point of view, and concludes that conservatives seem to be generous in allowing entrenched dominant firms to rely on a variety of coercion and intimidation tactics. It notes a wide-spread sense of “something gone wrong” with today's antitrust enforcement, in particular a growing sense of too much emphasis on over-simplified economic models. The chapter then provides a full and fair historic review of Warren Court excesses, and the Chicago School's remarkable influence in reversing some trends that most would ridicule today. It gives examples of areas where the Chicago School has not prevailed because of unrealistic economic approaches. It then emphasizes the complexity of evaluating the successes and failures of the Chicago School, noting examples of each kind of outcome. Finally, the chapter notes that many changes over the last half century, for better or worse, are the result of a variety of influences—not just fashions of economic analysis. It concludes that there are significant areas where extreme applications of conservative economic thought have “overshot the mark” and expresses concern that any such academic influences may lead to under-enforcement.
Thomas E. Kauper
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.003.0005
- Subject:
- Economics and Finance, Behavioural Economics
This paper begins by noting a widespread unease, indeed a sense of “something gone wrong”—with today's antitrust enforcement. In particular, it notes a growing sense of too much emphasis on ...
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This paper begins by noting a widespread unease, indeed a sense of “something gone wrong”—with today's antitrust enforcement. In particular, it notes a growing sense of too much emphasis on oversimplified and unrealistic economic models and too little emphasis on actual market effects. In an effort to understand Chicago School influence, the paper looks back to the 1950s and 1960s and describes the inviting target offered by excessive antitrust enforcement during those decades, citing many Supreme Court decisions ridiculed by almost all today. The Chicago School succeeded in part because of the nature of its opponent. Despite Chicago's undoubted, and generally constructive influence, it has not always achieved its sought-after outcomes. State-engineered exemptions from the federal antitrust laws (the “State Action Doctrine”) have grown in a way contrary to a primary reliance on the free market; there is no sign of Chicago influence in the federal legislative arena, and there is a growing concern about Chicago's oversimplified and unrealistic economic models that seem to ignore actual market facts.Less
This paper begins by noting a widespread unease, indeed a sense of “something gone wrong”—with today's antitrust enforcement. In particular, it notes a growing sense of too much emphasis on oversimplified and unrealistic economic models and too little emphasis on actual market effects. In an effort to understand Chicago School influence, the paper looks back to the 1950s and 1960s and describes the inviting target offered by excessive antitrust enforcement during those decades, citing many Supreme Court decisions ridiculed by almost all today. The Chicago School succeeded in part because of the nature of its opponent. Despite Chicago's undoubted, and generally constructive influence, it has not always achieved its sought-after outcomes. State-engineered exemptions from the federal antitrust laws (the “State Action Doctrine”) have grown in a way contrary to a primary reliance on the free market; there is no sign of Chicago influence in the federal legislative arena, and there is a growing concern about Chicago's oversimplified and unrealistic economic models that seem to ignore actual market facts.
Herbert Hovenkamp
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.003.0009
- Subject:
- Economics and Finance, Behavioural Economics
This paper begins with a wide-ranging comparison of “Chicago School” analysis with the earlier and more liberal “Harvard School” approaches, concluding that each had major influences in various areas ...
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This paper begins with a wide-ranging comparison of “Chicago School” analysis with the earlier and more liberal “Harvard School” approaches, concluding that each had major influences in various areas of antitrust. It argues that terms of influence, the balance in the case law rather than the scholarship is in favor of the Harvard School. If the more conservative approach has had an influence, it is in “chastening” and thereby moderating Harvard School preference for vigorous enforcement. The paper turns to the question whether there can be a “general theory” of monopolization, an obsessive recent concern of conservative antitrust officials. It concludes that all proposed tests, while often containing useful insights in specific areas of law, fall short of the goal of a successful “general theory” because they fail to address particular undesirable forms of exclusion and are often underdeterrent. Finally, the paper explores two problem areas most controversial in courts today: (1) misuse of government processes, particularly in the form of fraud on the Patent Office; and (2) exclusionary discounting or discounts designed to drive out of the market, or discipline, rivals.Less
This paper begins with a wide-ranging comparison of “Chicago School” analysis with the earlier and more liberal “Harvard School” approaches, concluding that each had major influences in various areas of antitrust. It argues that terms of influence, the balance in the case law rather than the scholarship is in favor of the Harvard School. If the more conservative approach has had an influence, it is in “chastening” and thereby moderating Harvard School preference for vigorous enforcement. The paper turns to the question whether there can be a “general theory” of monopolization, an obsessive recent concern of conservative antitrust officials. It concludes that all proposed tests, while often containing useful insights in specific areas of law, fall short of the goal of a successful “general theory” because they fail to address particular undesirable forms of exclusion and are often underdeterrent. Finally, the paper explores two problem areas most controversial in courts today: (1) misuse of government processes, particularly in the form of fraud on the Patent Office; and (2) exclusionary discounting or discounts designed to drive out of the market, or discipline, rivals.
Neil Duxbury
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264910
- eISBN:
- 9780191682865
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264910.003.0006
- Subject:
- Law, Philosophy of Law
This chapter addresses the argument in the economics in law. It specifically attempts to show that to understand properly the significance and the appeal of—not to mention the controversy generated ...
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This chapter addresses the argument in the economics in law. It specifically attempts to show that to understand properly the significance and the appeal of—not to mention the controversy generated by—the modern law and economics tradition in the United States, it must be conceived not against the backdrop of American jurisprudence, but in relation to developments in economics, primarily at the University of Chicago, since the 1930s. It also provides three general observations, all of which will be developed more or less thematically. There are two distinct developments that deserve consideration in evaluating the effect of the Chicago economic analysis on the evolution of modern American antitrust law.Less
This chapter addresses the argument in the economics in law. It specifically attempts to show that to understand properly the significance and the appeal of—not to mention the controversy generated by—the modern law and economics tradition in the United States, it must be conceived not against the backdrop of American jurisprudence, but in relation to developments in economics, primarily at the University of Chicago, since the 1930s. It also provides three general observations, all of which will be developed more or less thematically. There are two distinct developments that deserve consideration in evaluating the effect of the Chicago economic analysis on the evolution of modern American antitrust law.
Michael A. Carrier
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195342581
- eISBN:
- 9780199867035
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342581.003.0003
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter sheds light on antitrust. It begins with a primer explaining the most important of the regime's doctrines. It then places today's law in context by tracing the history of antitrust law. ...
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This chapter sheds light on antitrust. It begins with a primer explaining the most important of the regime's doctrines. It then places today's law in context by tracing the history of antitrust law. It concludes by surveying the evidence on the need for antitrust.Less
This chapter sheds light on antitrust. It begins with a primer explaining the most important of the regime's doctrines. It then places today's law in context by tracing the history of antitrust law. It concludes by surveying the evidence on the need for antitrust.
Edward T. Swaine
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0001
- Subject:
- Law, Public International Law
This chapter begins with a brief discussion of the distinctive features of antitrust extraterritoriality as it has been experienced in the United States. It then discusses US appetite for ...
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This chapter begins with a brief discussion of the distinctive features of antitrust extraterritoriality as it has been experienced in the United States. It then discusses US appetite for extraterritoriality, the limits to judicial and enforcement comity, and the efforts by antitrust authorities to assist one another in fulfilling their independent objectives.Less
This chapter begins with a brief discussion of the distinctive features of antitrust extraterritoriality as it has been experienced in the United States. It then discusses US appetite for extraterritoriality, the limits to judicial and enforcement comity, and the efforts by antitrust authorities to assist one another in fulfilling their independent objectives.
Luciano Benetti Timm
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0004
- Subject:
- Law, Public International Law
This chapter discusses the current state of international jurisdiction and cooperation in Brazilian antitrust law, in order to orient strategies and policies related to international competition law ...
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This chapter discusses the current state of international jurisdiction and cooperation in Brazilian antitrust law, in order to orient strategies and policies related to international competition law issues. The chapter is organized into two parts. The first part focuses on the extension of Brazilian antitrust laws. The second part deals with cooperation policy with respect to competition.Less
This chapter discusses the current state of international jurisdiction and cooperation in Brazilian antitrust law, in order to orient strategies and policies related to international competition law issues. The chapter is organized into two parts. The first part focuses on the extension of Brazilian antitrust laws. The second part deals with cooperation policy with respect to competition.
Michal S. Gal
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0006
- Subject:
- Law, Public International Law
This chapter analyzes the tools available to Israel to tackle international antitrust issues. The chapter is organized as follows. The second section analyzes the current international antitrust ...
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This chapter analyzes the tools available to Israel to tackle international antitrust issues. The chapter is organized as follows. The second section analyzes the current international antitrust regime in Israel. The analysis raises interesting theoretical and practical issues that are relevant to all jurisdictions that apply their domestic laws to foreign firms. The third section analyzes the regime from a wider perspective and focuses on the practical aspects of antitrust enforcement. The next section analyzes some of the implications of the findings for international antitrust and suggests some ways that small economies can adopt in order to play a more effective role in the international antitrust arena.Less
This chapter analyzes the tools available to Israel to tackle international antitrust issues. The chapter is organized as follows. The second section analyzes the current international antitrust regime in Israel. The analysis raises interesting theoretical and practical issues that are relevant to all jurisdictions that apply their domestic laws to foreign firms. The third section analyzes the regime from a wider perspective and focuses on the practical aspects of antitrust enforcement. The next section analyzes some of the implications of the findings for international antitrust and suggests some ways that small economies can adopt in order to play a more effective role in the international antitrust arena.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0004
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, ...
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This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, and legal remedies are often denied to those who were clearly harmed. By contrast, IP law often presumes harm, sometimes even going to the extreme of awarding damages to IP owners who were actually benefitted rather than harmed by a defendant's actions. The rhetoric of “property” that is used in IP discourse explains part, but hardly all, of this difference.Less
This chapter analyzes the unjustified differences between proof of harm in competition and innovation policy. In antitrust law, harm is never presumed and must be proven without undue speculation, and legal remedies are often denied to those who were clearly harmed. By contrast, IP law often presumes harm, sometimes even going to the extreme of awarding damages to IP owners who were actually benefitted rather than harmed by a defendant's actions. The rhetoric of “property” that is used in IP discourse explains part, but hardly all, of this difference.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0012
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
This chapter examines exclusionary practices by dominant firms in innovation-intensive markets. Both IP and antitrust law are properly concerned with incentivizing innovation. But innovation can also ...
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This chapter examines exclusionary practices by dominant firms in innovation-intensive markets. Both IP and antitrust law are properly concerned with incentivizing innovation. But innovation can also be manipulated in harmful ways. Dangers to both competition policy and innovation policy can emerge when a dominant firm has significantly greater resources than its rivals. The chapter looks at problems involving commandeering and nonuse of patents, refusals to deal in network industries, the appropriate scope of any policy of internet neutrality, and whether innovation itself should ever be condemned as anticompetitive.Less
This chapter examines exclusionary practices by dominant firms in innovation-intensive markets. Both IP and antitrust law are properly concerned with incentivizing innovation. But innovation can also be manipulated in harmful ways. Dangers to both competition policy and innovation policy can emerge when a dominant firm has significantly greater resources than its rivals. The chapter looks at problems involving commandeering and nonuse of patents, refusals to deal in network industries, the appropriate scope of any policy of internet neutrality, and whether innovation itself should ever be condemned as anticompetitive.
Harry First, Eleanor Fox, and Daniel E. Hemli
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199670048
- eISBN:
- 9780191744341
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670048.003.0008
- Subject:
- Law, Competition Law, Public International Law
This chapter discusses the history, institutional structure, mandate, procedural characteristics, and agency performance of the competition law system of the United States. The US enforcement system ...
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This chapter discusses the history, institutional structure, mandate, procedural characteristics, and agency performance of the competition law system of the United States. The US enforcement system is complex. There are two major federal enforcement agencies and fifty state enforcement agencies, plus five federal districts or territories, and enforcement through private litigation. The state attorneys general can enforce federal antitrust law as well as state antitrust law when state residents are injured. The two US federal agencies are the Department of Justice Antitrust Division and the Federal Trade Commission. The former is a division of the executive branch; the latter is an independent regulatory agency. The Antitrust Division of the Department of Justice follows the bifurcated judicial model, investigating cases and bringing enforcement actions in federal courts of general jurisdiction. The Federal Trade Commission, consisting of five commissioners, follows the integrated agency model, with power to investigate and adjudicate cases internally, subject to subsequent appellate court review.Less
This chapter discusses the history, institutional structure, mandate, procedural characteristics, and agency performance of the competition law system of the United States. The US enforcement system is complex. There are two major federal enforcement agencies and fifty state enforcement agencies, plus five federal districts or territories, and enforcement through private litigation. The state attorneys general can enforce federal antitrust law as well as state antitrust law when state residents are injured. The two US federal agencies are the Department of Justice Antitrust Division and the Federal Trade Commission. The former is a division of the executive branch; the latter is an independent regulatory agency. The Antitrust Division of the Department of Justice follows the bifurcated judicial model, investigating cases and bringing enforcement actions in federal courts of general jurisdiction. The Federal Trade Commission, consisting of five commissioners, follows the integrated agency model, with power to investigate and adjudicate cases internally, subject to subsequent appellate court review.
Michael A. Carrier
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195342581
- eISBN:
- 9780199867035
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195342581.003.0004
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the underpinnings of the mutual distrust between intellectual property (IP) and antitrust and the various stages of their relationship. It begins by discussing the conflict ...
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This chapter explores the underpinnings of the mutual distrust between intellectual property (IP) and antitrust and the various stages of their relationship. It begins by discussing the conflict between IP and antitrust. It then traces the three stages of the intersection in the 20th century, in which courts first refused to impose liability for patent-based activity, then limited patentees' power, then moved toward a predominant IP. The chapter concludes by examining important agency guidelines and courts' analyses of refusals to license.Less
This chapter explores the underpinnings of the mutual distrust between intellectual property (IP) and antitrust and the various stages of their relationship. It begins by discussing the conflict between IP and antitrust. It then traces the three stages of the intersection in the 20th century, in which courts first refused to impose liability for patent-based activity, then limited patentees' power, then moved toward a predominant IP. The chapter concludes by examining important agency guidelines and courts' analyses of refusals to license.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0002
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
This chapter explores the nature and goals of competition policy, including some important differences between price competition and innovation competition. Specifically, it discusses antitrust's ...
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This chapter explores the nature and goals of competition policy, including some important differences between price competition and innovation competition. Specifically, it discusses antitrust's “common law” approach to competition policy; the relationship between antitrust policy, market structure, and innovation; and the uses and limits of antitrust to improve innovation. It is argued that IP law can take some important lessons from the road that antitrust law has taken toward reform.Less
This chapter explores the nature and goals of competition policy, including some important differences between price competition and innovation competition. Specifically, it discusses antitrust's “common law” approach to competition policy; the relationship between antitrust policy, market structure, and innovation; and the uses and limits of antitrust to improve innovation. It is argued that IP law can take some important lessons from the road that antitrust law has taken toward reform.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0011
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
The ability of antitrust law to deal with innovation restraints is limited because the path of innovation is frequently unpredictable, at least when the innovation's promise lies in the future. The ...
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The ability of antitrust law to deal with innovation restraints is limited because the path of innovation is frequently unpredictable, at least when the innovation's promise lies in the future. The doctrine of IP misuse provides an alternative tool to combat innovation restraints. In addition, misuse can provide a remedy against some anticompetitive practices, provided that the practices involve a patented or copyrighted good. This chapter argues that although antitrust violations are an important subset of misuse cases, antitrust law should not define the scope of the misuse doctrine. Misuse doctrine emanates from IP policy, not from antitrust policy, and has its own values to protect. Among these are restraints on competition, restraints on innovation, and unreasonable foreclosure of information or technology that rightfully belongs in the public domain.Less
The ability of antitrust law to deal with innovation restraints is limited because the path of innovation is frequently unpredictable, at least when the innovation's promise lies in the future. The doctrine of IP misuse provides an alternative tool to combat innovation restraints. In addition, misuse can provide a remedy against some anticompetitive practices, provided that the practices involve a patented or copyrighted good. This chapter argues that although antitrust violations are an important subset of misuse cases, antitrust law should not define the scope of the misuse doctrine. Misuse doctrine emanates from IP policy, not from antitrust policy, and has its own values to protect. Among these are restraints on competition, restraints on innovation, and unreasonable foreclosure of information or technology that rightfully belongs in the public domain.
Louis Kaplow
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691158624
- eISBN:
- 9781400846078
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691158624.003.0004
- Subject:
- Economics and Finance, Economic History
This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court ...
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This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court precedents on Section 1. These are the primary source of U.S. antitrust law in general and specifically in delineating what constitutes a horizontal agreement. Here, there is more conflict than meets the eye. Finally, the corresponding provision in the European Union, Article 101, is examined. Because the underlying questions and the relevant economic theory of oligopolistic coordination are the same, it is natural to expect similar challenges to arise, and they do.Less
This chapter examines competition law's doctrine on horizontal agreements. It begins by addressing the U.S. statute, Sherman Act Section 1. The chapter then turns to the leading Supreme Court precedents on Section 1. These are the primary source of U.S. antitrust law in general and specifically in delineating what constitutes a horizontal agreement. Here, there is more conflict than meets the eye. Finally, the corresponding provision in the European Union, Article 101, is examined. Because the underlying questions and the relevant economic theory of oligopolistic coordination are the same, it is natural to expect similar challenges to arise, and they do.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.001.0001
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors ...
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Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.Less
Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.
Edward M. Iacobucci
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0003
- Subject:
- Law, Public International Law
In a small, open economy like Canada's, it would be plainly incomplete to think of antitrust law and policy as involving only domestic interests. This has always been true, but of course this has ...
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In a small, open economy like Canada's, it would be plainly incomplete to think of antitrust law and policy as involving only domestic interests. This has always been true, but of course this has become even more essential to appreciate the growth in international trade. This chapter maps out the international contours of Canadian competition law and practice. First, it considers the extraterritorial reach of Canadian competition law. It looks at three relevant dimensions of extraterritorial application: Does Canadian law reach domestic conduct that affects foreign markets? Does Canadian law reach foreign conduct that affects domestic markets? Finally, does Canadian law reach foreign conduct that affects foreign markets? In discussing extraterritoriality, the central issue is whether Canadian law has jurisdiction over the relevant conduct. But even if it does have jurisdiction, it may decline to assume jurisdiction on grounds of international comity. The second section outlines the role of comity in Canadian attitudes to the extraterritorial reach of its statutes.Less
In a small, open economy like Canada's, it would be plainly incomplete to think of antitrust law and policy as involving only domestic interests. This has always been true, but of course this has become even more essential to appreciate the growth in international trade. This chapter maps out the international contours of Canadian competition law and practice. First, it considers the extraterritorial reach of Canadian competition law. It looks at three relevant dimensions of extraterritorial application: Does Canadian law reach domestic conduct that affects foreign markets? Does Canadian law reach foreign conduct that affects domestic markets? Finally, does Canadian law reach foreign conduct that affects foreign markets? In discussing extraterritoriality, the central issue is whether Canadian law has jurisdiction over the relevant conduct. But even if it does have jurisdiction, it may decline to assume jurisdiction on grounds of international comity. The second section outlines the role of comity in Canadian attitudes to the extraterritorial reach of its statutes.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0005
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law ...
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This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law can repair defects in the patent system. In a well-designed patent system, an issued patent would tell the world precisely what the patentee invented. This invention would be sufficiently “nonobvious” that one would not expect large numbers of others to develop it on their own without copying. But the system tends to break down if the invention is not substantial, meaning that others are likely to have discovered it on their own; either the concept of the invention or its description are so abstract that the patent spills over into areas that the patentee really did not contemplate and for which the patent itself did not provide sufficient notice; or the patentee is permitted to have “afterthoughts,” or claims for the invention that were not in mind when the patent application was originally filed. The current patent system suffers from failures of all three types.Less
This chapter gives a brief overview of the U.S. patent system and evaluates the problem of incentives and foreseeable harm. It also considers the severe limitations on any notion that antitrust law can repair defects in the patent system. In a well-designed patent system, an issued patent would tell the world precisely what the patentee invented. This invention would be sufficiently “nonobvious” that one would not expect large numbers of others to develop it on their own without copying. But the system tends to break down if the invention is not substantial, meaning that others are likely to have discovered it on their own; either the concept of the invention or its description are so abstract that the patent spills over into areas that the patentee really did not contemplate and for which the patent itself did not provide sufficient notice; or the patentee is permitted to have “afterthoughts,” or claims for the invention that were not in mind when the patent application was originally filed. The current patent system suffers from failures of all three types.
