Supporting my Mizzou Students
Unless you live under a rock, you know that the president and chancellor of the University of Missouri, where I teach law, have resigned in response to protests over their failure to respond to several (three identified) racist incidents on campus. A group called Concerned Student 1950 staged a series of protests and demanded, among other things, ... Supporting my Mizzou Students
Josh Wright and the Limits of Antitrust
Alden Abbott and I recently co-authored an article, forthcoming in the Journal of Competition Law and Economics, in which we examined the degree to which the Supreme Court and the federal enforcement agencies have recognized the inherent limits of antitrust law. We concluded that the Roberts Court has admirably acknowledged those limits and has for ... Josh Wright and the Limits of Antitrust
Leave a Little GUPPI Alone: Why Commissioner Wright is Right to Call for a Low-GUPPI Safe Harbor
FTC Commissioner Josh Wright has some wise thoughts on how to handle a small GUPPI. I don’t mean the fish. Dissenting in part in the Commission’s disposition of the Family Dollar/Dollar Tree merger, Commissioner Wright calls for creating a safe harbor for mergers where the competitive concern is unilateral effects and the merger generates a ... Leave a Little GUPPI Alone: Why Commissioner Wright is Right to Call for a Low-GUPPI Safe Harbor
Commissioner Wright Rightly Calls the Question on Section 5 Guidance
Anybody who has spent much time with children knows how squishy a concept “unfairness” can be. One can hear the exchange, “He’s not being fair!” “No, she’s not!,” only so many times before coming to understand that unfairness is largely in the eye of the beholder. Perhaps it’s unfortunate, then, that Congress chose a century ... Commissioner Wright Rightly Calls the Question on Section 5 Guidance
Why a Common Law Approach to Defining “Unfair Methods of Competition” Won’t Work
Section 5 of the Federal Trade Commission Act proclaims that “[u]nfair methods of competition . . . are hereby declared unlawful.” The FTC has exclusive authority to enforce that provision and uses it to prosecute Sherman Act violations. The Commission also uses the provision to prosecute conduct that doesn’t violate the Sherman Act but is, ... Why a Common Law Approach to Defining “Unfair Methods of Competition” Won’t Work
Peter Thiel on the Virtues of Monopoly
PayPal co-founder Peter Thiel has a terrific essay in the Review section of today’s Wall Street Journal. The essay, Competition Is for Losers, is adapted from Mr. Thiel’s soon-to-be-released book, Zero to One: Notes on Startups, or How to Build the Future. Based on the title of the book, I assume it is primarily a how-to guide for entrepreneurs. ... Peter Thiel on the Virtues of Monopoly
Highlights from Josh Wright’s Interview in The Antitrust Source
Anyone interested in antitrust enforcement policy (and what TOTM reader isn’t?) should read FTC Commissioner Josh Wright’s interview in the latest issue of The Antitrust Source. The extensive (22 page!) interview covers a number of topics and demonstrates the positive influence Commissioner Wright is having on antitrust enforcement and competition policy in general. Commissioner Wright’s ... Highlights from Josh Wright’s Interview in The Antitrust Source
Two Good Reads on One Bad Rule
Today is the last day for public comment on the Federal Communications Commission’s latest net neutrality proposal. Here are two excellent op-eds on the matter, one by former FCC Commissioner Robert McDowell and the other by Tom Hazlett and TOTM’s own Josh Wright. Hopefully, the Commission will take to heart the pithy observation of one of my law school friends, Commissioner Ajit ... Two Good Reads on One Bad Rule
Antitrust Law and Economics Scholars Urge Reversal in McWane
Last Monday, a group of nineteen scholars of antitrust law and economics, including yours truly, urged the U.S. Court of Appeals for the Eleventh Circuit to reverse the Federal Trade Commission’s recent McWane ruling. McWane, the largest seller of domestically produced iron pipe fittings (DIPF), would sell its products only to distributors that “fully supported” ... Antitrust Law and Economics Scholars Urge Reversal in McWane
Cablevision v. Viacom and the Sad State of Tying Doctrine
Whereas the antitrust rules on a number of once-condemned business practices (e.g., vertical non-price restraints, resale price maintenance, price squeezes) have become more economically sensible in the last few decades, the law on tying remains an embarrassment. The sad state of the doctrine is evident in a federal district court’s recent denial of Viacom’s motion to dismiss a tying action ... Cablevision v. Viacom and the Sad State of Tying Doctrine
Halliburton and the Paradox of an Efficient Stock Market
I share Alden’s disappointment that the Supreme Court did not overrule Basic v. Levinson in Monday’s Halliburton decision. I’m also surprised by the Court’s ruling. As I explained in this lengthy post, I expected the Court to alter Basic to require Rule 10b-5 plaintiffs to prove that the complained of misrepresentation occasioned a price effect. ... Halliburton and the Paradox of an Efficient Stock Market
Meese and Oman Spank the Corporate Law Prof Amici in Hobby Lobby
The Religious Freedom Restoration Act (RFRA) subjects government-imposed burdens on religious exercise to strict scrutiny. In particular, the Act provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government can establish that doing so is the least restrictive means of furthering ... Meese and Oman Spank the Corporate Law Prof Amici in Hobby Lobby
