The Supreme Court Should Reassert the Importance of Procedural Gatekeeper Rules to Deter Antitrust Litigation Excesses
Background In addition to reforming substantive antitrust doctrine, the Supreme Court in recent decades succeeded in curbing the unwarranted costs of antitrust litigation by erecting new procedural barriers to highly questionable antitrust suits. It did this principally through three key “gatekeeper” decisions, Monsanto (1984), Matsushita (1986), and Twombly (2007). Prior to those holdings, bare allegations ... The Supreme Court Should Reassert the Importance of Procedural Gatekeeper Rules to Deter Antitrust Litigation Excesses
Two Helpful Developments Aimed at Curbing Anticompetitive Protectionist Occupational Licensing Restrictions – Harbingers of Reform?
Background Recently, an increasing amount of scholarship has focused on the excessive costs of occupational licensing, which too frequently serves merely as a protectionist state-created barrier to entry that arbitrarily prevents individuals (and, in particular, low-income individuals) from earning a living in their chosen field. A 2015 White House report explains that occupational licensing restrictions ... Two Helpful Developments Aimed at Curbing Anticompetitive Protectionist Occupational Licensing Restrictions – Harbingers of Reform?
Online Privacy Regulation: A Tale of Two U.S. Agencies (and Some Foreign Bureaucrats)
In recent years much ink has been spilled on the problem of online privacy breaches, involving the unauthorized use of personal information transmitted over the Internet. Internet privacy concerns are warranted. According to a 2016 National Telecommunications and Information Administration survey of Internet-using households, 19 percent of such households (representing nearly 19 million households) reported ... Online Privacy Regulation: A Tale of Two U.S. Agencies (and Some Foreign Bureaucrats)
Global Antitrust Institute Comments on Chinese Draft Antitrust Guidelines Regarding Disgorgement and Fines Have Broader Implications for Sound Antitrust Enforcement Policy
The Global Antitrust Institute (GAI) at George Mason University Law School (officially the “Antonin Scalia Law School at George Mason University” as of July 1st) is doing an outstanding job at providing sound law and economics-centered advice to foreign governments regarding their proposed antitrust laws and guidelines. The GAI’s latest inspired filing, released on July ... Global Antitrust Institute Comments on Chinese Draft Antitrust Guidelines Regarding Disgorgement and Fines Have Broader Implications for Sound Antitrust Enforcement Policy
Fracking, the Separation of Powers, Economic Welfare, and the Role of the Public (Or Mirabile Dictu! An Obama-Appointed Federal Judge Who Believes in the Separation of Powers)
An interesting thing happened on June 21st. Scott Skavdahl, a federal district court judge appointed by President Barack Obama, invalidated the “Fracking Rule” adopted by the Interior Department’s Bureau of Land Management (BLM). Even more interesting, however, was the fact that, in so holding, the judge relied heavily on a rather dusty, moth-eaten eighteenth century ... Fracking, the Separation of Powers, Economic Welfare, and the Role of the Public (Or Mirabile Dictu! An Obama-Appointed Federal Judge Who Believes in the Separation of Powers)
Brexit, Competition, and Economic Welfare
A key issue raised by the United Kingdom’s (UK) withdrawal from the European Union (EU) – popularly referred to as Brexit – is its implications for competition and economic welfare. The competition issue is rather complex. Various potentially significant UK competition policy reforms flowing from Brexit that immediately suggest themselves are briefly summarized below. (These ... Brexit, Competition, and Economic Welfare
Robust Patent and Copyright Systems Promote a Strong U.S. Economy – and Are Consistent with Originalist Understandings of the Constitution
In a Heritage Foundation Legal Memorandum released today, I explore both the “constitutionalist” as well as utilitarian, economic-welfare-oriented justifications for robust U.S. patent and copyright systems. The Memorandum explains: Intellectual property (IP) is increasingly important to the American private economy, and a discussion of the appropriate public policy toward IP is timely, particularly given the ... Robust Patent and Copyright Systems Promote a Strong U.S. Economy – and Are Consistent with Originalist Understandings of the Constitution
U.S. Food and Drug Administration (FDA) Reforms Needed to Promote Path-Breaking Biopharmaceutical Innovation
Yesterday the Heritage Foundation published a Legal Memorandum, in which I explain the need for the reform of U.S. Food and Drug Administration (FDA) regulation, in order to promote path-breaking biopharmaceutical innovation. Highlights of this Legal Memorandum are set forth below. In recent decades, U.S. and foreign biopharmaceutical companies (makers of drugs that are based ... U.S. Food and Drug Administration (FDA) Reforms Needed to Promote Path-Breaking Biopharmaceutical Innovation
Will the Supreme Court’s Halo Electronics Decision Have a Desirable Halo Effect, Reducing Incentives to Infringe Patents?
The U.S. Supreme Court’s unanimous June 13 decision (per Chief Justice John Roberts) in Halo Electronics v. Pulse Electronics, overturning the Federal Circuit’s convoluted Seagate test for enhanced damages, is good news for patent holders. By reducing the incentives for intentional patent infringement (due to the near impossibility of obtaining punitive damages relief under Seagate), ... Will the Supreme Court’s Halo Electronics Decision Have a Desirable Halo Effect, Reducing Incentives to Infringe Patents?
Legatum Institute Publishes an Eye-Opening Case Study on the Benefits of Eliminating Anticompetitive Market Distortions (ACMDs) in India
In a recent Truth on the Market blog posting, I summarized the discussion at a May 17 Heritage Foundation program on the problem of anticompetitive market distortions (ACMDs), featuring Shanker Singham of the Legatum Institute (a market-oriented London think tank) and me. The program highlighted the topic of anticompetitive government-imposed laws and regulations (which Singham ... Legatum Institute Publishes an Eye-Opening Case Study on the Benefits of Eliminating Anticompetitive Market Distortions (ACMDs) in India
The Constitutionally-Challenged Consumer Financial Protection Bureau (CFPB) Now Directly Challenges the Lawful and Welfare-Enhancing Pay-Day Lending Industry
The Consumer Financial Protection Bureau (CFPB) is, to say the least, a controversial agency. As documented by such experts as Scalia Law School Professor Todd Zywicki, the CFPB imposes enormous costs on consumers and financial service providers through costly and unwarranted command-and-control regulation. Furthermore, as I explained in a February 2016 Heritage Foundation legal memorandum, ... The Constitutionally-Challenged Consumer Financial Protection Bureau (CFPB) Now Directly Challenges the Lawful and Welfare-Enhancing Pay-Day Lending Industry
Combatting Foreign Theft of U.S. IP Theft by Strengthening Section 337 of the Tariff Act – and Making it an “IP Only” Statute
Public policies that rely on free-market forces and avoid government interventions that distort terms of international trade benefit producers, consumers, and national economies alike. The full benefits of international trade will not be realized, however, if sales and purchase decisions are distorted by anticompetitive behavior or other illegitimate commercial conduct (such as theft, fraud, or ... Combatting Foreign Theft of U.S. IP Theft by Strengthening Section 337 of the Tariff Act – and Making it an “IP Only” Statute
