Showing archive for: “Supreme Court”
Antitrust Enforcement in Reverse: Getting Efficiencies Backwards
A century ago Congress enacted the Clayton Act, which prohibits acquisitions that may substantially lessen competition. For years, the antitrust enforcement Agencies looked at only one part of the ledger – the potential for price increases. Agencies didn’t take into account the potential efficiencies in cost savings, better products, services, and innovation. One of the major ... Antitrust Enforcement in Reverse: Getting Efficiencies Backwards
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
How the Court’s “looks-like-cable-tv” test in Aereo protects the cloud
In our blog post this morning on ABC v. Aereo, we explain why, regardless of which test applies (the majority’s “looks-like-cable-TV” test or the dissent’s volitional conduct test), Aereo infringes on television program owners’ exclusive right under the Copyright Act to publicly perform their works. We also explain why the majority’s test is far less ambiguous than its critics ... How the Court’s “looks-like-cable-tv” test in Aereo protects the cloud
Why the Supreme Court’s Aereo Decision Protects Creators Without Endangering the Cloud
Yesterday, the Supreme Court released its much-awaited decision in ABC v. Aereo. The Court reversed the Second Circuit, holding that Aereo directly infringed the copyrights of broadcast television program owners by publicly performing their works without permission. Justice Breyer, who wrote the opinion for the Court, was joined by five other Justices, including Chief Justice ... Why the Supreme Court’s Aereo Decision Protects Creators Without Endangering the Cloud
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
Predatory pricing reform rides the Marrakech Express
As I noted in my prior post, two weeks ago the 13th Annual Conference of the International Competition Network (ICN) released two new sets of recommended best practices. Having focused on competition assessment in my prior blog entry, I now turn to the ICN’s predatory pricing recommendations. Aggressive price cutting is the essence of competitive ... Predatory pricing reform rides the Marrakech Express
A Supreme Court ruling against Aereo won’t spell the end of cloud computing
Interested observers on all sides of the contentious debate over Aereo have focused a great deal on the implications for cloud computing if the Supreme Court rules against Aereo. The Court hears oral argument next week, and the cloud computing issue is sure to make an appearance. Several parties that filed amicus briefs in the ... A Supreme Court ruling against Aereo won’t spell the end of cloud computing
Constitutional Dynamism: Responding to Tim Wu on “Machine Speech”, “Opportunism”, and First Amendment
William Buckley once described a conservative as “someone who stands athwart history, yelling Stop.” Ironically, this definition applies to Professor Tim Wu’s stance against the Supreme Court applying the Constitution’s protections to the information age. Wu admits he is going against the grain by fighting what he describes as leading liberals from the civil rights ... Constitutional Dynamism: Responding to Tim Wu on “Machine Speech”, “Opportunism”, and First Amendment
Gus Hurwitz on A Policy Statement Is Not Enough
Administrative law really is a strange beast. My last post explained this a bit, in the context of Chevron. In this post, I want to make this point in another context, explaining how utterly useless a policy statement can be. Our discussion today has focused on what should go into a policy statement – there ... Gus Hurwitz on A Policy Statement Is Not Enough
The Supreme Court upholds freedom of contract in American Express v Italian Colors Restaurant
[The following is a guest post by Thomas McCarthy on the Supreme Court’s recent Amex v. Italian Colors Restaurant decision. Tom is a partner at Wiley Rein, LLP and a George Mason Law grad. He is/was also counsel for, among others, Petitioner Abigail Fisher in Fisher v. University of Texas Petitioner Shelby County, Alabama in Shelby County v. Holder Respondent ... The Supreme Court upholds freedom of contract in American Express v Italian Colors Restaurant
Hey Hey! Ho Ho! Partial De Facto Exclusive Dealing Claims Have Got to Go!
Today, a group of eighteen scholars, of which I am one, filed an amicus brief encouraging the Supreme Court to review a Court of Appeals decision involving loyalty rebates. The U.S. Court of Appeals for the Third Circuit recently upheld an antitrust judgment based on a defendant’s loyalty rebates even though the rebates resulted in above-cost prices for the defendant’s products ... Hey Hey! Ho Ho! Partial De Facto Exclusive Dealing Claims Have Got to Go!
Regulation Magazine Cover Article: “How the Supreme Court Doomed the ACA to Failure”
My recent essay, How the Supreme Court Doomed the ACA to Failure, is the cover article of the current issue of Regulation Magazine. I’ve been over the essay’s basic points several times (e.g., here, here, and here), so I won’t belabor them now. My basic assertions are: The Affordable Care Act (ACA) provisions mandating both “guaranteed issue” (insurers must sell to everyone) and ... Regulation Magazine Cover Article: “How the Supreme Court Doomed the ACA to Failure”
