Cornell Law Review

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Antitrust Remedies for Fissured Work

Brian Callaci & Sandeep Vaheesan
Chief economist, Open Markets Institute & Legal director, Open Markets Institute

Can parties control independent trading partners through contract? Antitrust law in the United States has confronted this question since its inception. From the 1940s through the 1970s, the Supreme Court generally held that corporations could not control the business decisions of distributors and suppliers using contracts, or vertical restraints in the parlance of antitrust. For…

14 Mar 2023

Article

FRAND and Antitrust

Herbert Hovenkamp, James B. Dinan University Professor, University of Pennsylvania Law School and The Wharton School.

This Article addresses one question: when is a Standard Setting Organization (SSO) participant’s violation of a FRAND commitment an antitrust violation, and if it is, of what kind and what are the implications for remedies? It warns against two extremes. One is thinking that any violation of a FRAND commitment is an antitrust violation as well. In the first instance FRAND obligations are contractual, and most breaches of contract do not violate any antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation. The question of an antitrust violation does not depend on whether the conduct breached a particular agreement but rather on whether it caused competitive harm. This can happen because the conduct restrained trade under section 1 of the Sherman Act, was unreasonably exclusionary under section 2 of the Sherman Act, or amounted to an anticompetitive condition or understanding as defined by section 3 of the Clayton Act. The end goal is to identify practices that harm competition, thereby injuring consumers.

15 Sep 2020

Article

Antitrust and the Designing of Production

Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carry Law School

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it…

28 Jul 2020

Article

Sharing, Samples, and Generics: An Antitrust Framework

Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School.

Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant…

18 Jul 2020

Article

Why has Antitrust Law Failed Workers?

Ioana Marinescu & Eric A. Posner

Marinescu is Assistant Professor, School of Social Policy & Practice, University of Pennsylvania, and a faculty research fellow at the National Bureau of Economic Research.

Eric Posner is the Kirkland & Ellis Distinguished Service Professor at University of Chicago

In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony—meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higherpaying job in…

15 Jul 2020

A 2020 Agenda For Re-Invigorated Antitrust Enforcement: Four Big Ideas

Edward D. Cavanagh, Professor of Law, St. John’s University School of Law

In an essay published in the mid-1960s, historian Richard Hofstadter posed a question that was as simple as it was profound: What happened to the antitrust movement in America?11. RICHARD HOFSTADTER, What Happened to the Antitrust Movement?, in THE PARANOID STYLE IN AMERICAN POLITICS AND OTHER ESSAYS 188 (1st ed. 1965). Hofstadter observed that Americans…

10 Jan 2020

Article

Antitrust and the Design of Production

Herbert Hovenkamp, James G. Dinan University Professor, Penn Law and Wharton Business, University of Pennsylvania

Both economics and antitrust policy have traditionally distinguished “production” from “distribution.” The former is concerned with how products are designed and built, the latter with how they are placed into the hands of consumers. Nothing in the language of the antitrust laws suggests much concern with production as such. Although courts do not view it…

15 Jul 2018

Article

Systematically Important Platforms

Caleb N. Griffin, Assistant Professor, University of Arkansas School of Law

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative…

26 Apr 2022

Article

In Defense of Breakups: Administering a “Radical” Remedy

Rory Van Loo, Associate Professor of Law, Boston University; Affiliated Fellow, Yale Law School Information Society Project  

 

Calls for breaking up monopolies—especially Amazon, Facebook, and Google—have largely focused on proving that companies like Whole Foods, Instagram, and YouTube are anticompetitive. But scholars have paid insufficient attention to a separate step in the analysis that may help explain why the government in recent decades has not broken up a single large company. . . . This Article asserts that the pervasive hesitancy about administering breakups renders antitrust impotent in the face of monopolies—too often a statutory right without a remedy. More importantly, the Article challenges the perception of breakups as unadministrable.

10 Nov 2020

Recent News & Events

Cornell Law Review, Issue 6

Cornell Law Review is proud to announce Vol. 105, Issue 6. Thank you to our amazing authors for their outstanding collaboration and patience with us during the COVID-19 pandemic. Please see below for a complete list of Issue 6 authors and their scholarship. ARTICLES Against Prosecutors I. Bennett Capers, Professor of Law and Director of the…

1 Oct 2020