American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

FACTS An officer in Midvale, Utah was doing some paperwork in his patrol car when he was approached by man, later identified as Nitokalisi Fonua (hereinafter, “Nick”). Nick “looked suspicious,” mainly because he was “jittery, looking around and appeared to be very nervous.” Nick’s suspicion rating jumped dramatically when, for no apparent reason, he informed the officer he had stolen a white GMC Blazer, which he had parked nearby. Naturally, the officer asked Nick if he would show him the Blazer, and Nick said sure. When they located the Blazer, the officer walked over and looked inside. The first thing he saw was a sawed-off shotgun on the back seat. Then he noticed some markings on the shotgun, “markings that looked gang-related.” Nick told the officer that the key to the Blazer was inside his motel room at the Days Inn. Also in the room, he said, were his “cousins,” meaning “people he knows from the streets.” The officer asked Nick “if we could obtain the keys to the vehicle so we could turn those back over to the owner.” Nick said the keys “were in the room somewhere” and that he “didn’t care” if the officer went in and retrieved them. Nick also gave the officer his key to the room. When backup arrived at the motel, officers knocked on the door which was opened by a man named Vake. There were two other occupants: a woman and Kimoana, the defendant. By this time, the officers were aware that Kimoana—not Nick—had rented the room. The first thing the officers saw as the door opened was the woman pointing “an unidentified black object” at the wall. Concerned for their safety, they ordered the occupants to “show their hands.” Then they pat searched them. Finding no weapons (the “unidentified black object” was a television remote control), they holstered their guns. Although the officers already had Nick’s consent to search the room, they sought and obtained consent from Vake. During the search, they found a “long-barreled revolver” under a mattress. As the result, Kimoana was convicted of being a felon in possession of a firearm.

United States V. _____

http://idei.fr/sites/default/files/medias/doc/by/rey/leniency.pdf

The impact of leniency and whistle-blowing programs on cartels

This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists and others that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of U.S. firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare - particularly in deterring the harms from anticompetitive conduct across the economy - appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.

/pdf/the-case-for-antitrust-enforcement-21v9wizb86.pdf

The Case for Antitrust Enforcement

The 2004 antitrust reform is the most important change in the history of EU competition policy. It amounts to a major shift in both the mode of regulation (towards private enforcement) and the substance (towards the Anglo-Saxon model). These changes erode crucial elements of the Rhenish variety of economic organization.

/pdf/enhanced-roles-of-private-actors-in-eu-business-regulation-1ot47p7aad.pdf

Enhanced roles of private actors in EU business regulation and the erosion of Rhenish capitalism: The case of antitrust enforcement

The Second Edition builds on the strengths of the first with complete updating of all cases, text, Notes, and Sidebars, taking into account the latest developments and commentary. It includes expanded economic coverage, a thoroughly revised chapter on dominant firm conduct, a thoroughly revised chapter on distribution restraints that comprehensively addresses the Supreme Court's Leegin decision, revised and expanded treatment of the analysis of competitor collaborations and joint ventures, updating of the state-of-the art conspiracy and merger chapters, and increased attention to international and comparative developments. Some older cases have been reduced to notes in favor of newer cases that better reflect current trends in antitrust analysis. Problems and skills exercises have also been refreshed and augmented. Figures and charts have been updated and will be made available in PowerPoint form on the TWEN Author's Forum.

Antitrust law in perspective : cases, concepts, and problems in competition policy

Since the announcement in late 2002 of the Modernization Plan, and continuing in 2005 with the release of the Green Paper on damages actions, the European Commission has been committed to a significant restructuring of the EU's approach to enforcing competition laws. Under the revised system as envisioned by the Commission, national competition authorities and private parties will assume a far greater role in supplementing the work of the Commission, which for 50 years has been the predominant competition policy enforcer in Europe. The goal is not only to produce a system of shared enforcement authority, but to promote the continued evolution in Europe of a “culture of competition,” while avoiding the creation of a “culture of litigation.” If national competition authorities and private parties accept this invitation, however, they are likely to face the same kinds of demands for substantial economic evidence from their national courts that the EC has faced from the Court of First Instance and the European Court of Justice in some of its most complex and challenging recent cases. This paper asks whether national level enforcers, public and private, will have the procedural and evidentiary tools necessary to respond to demands for such economic proof. Drawing on the Commission's recent experiences, as well as lessons from the U.S. experience, it asks whether the Green Paper's treatment of economic evidence is adequate given the importance that economic proof plays today in competition law cases. It then urges the Commission to devote additional attention to identifying and advocating reforms that will more actively facilitate the disclosure, development, and presentation of economic evidence. This paper particularly questions the Green Paper's preference for the use of court-appointed experts in lieu of party-secured expert witnesses. It argues that party and court-appointed experts can perform very different functions in competition law cases and should not be viewed as substitutes. Moreover, it suggests that the Green Paper may significantly underestimate the degree to which party-secured expert economic witnesses will be necessary if national level enforcers—public and private—are to be adequately equipped to meet the burdens of proof they will face. If national enforcers systematically find that they lack the procedural tools necessary to develop the economic evidence they need to meet those burdens, they will reduce or abandon their efforts to initiate competition law actions and it will be less likely that the promise of decentralization and privatization can be realized.

The challenges of economic proof in a decentralized and privatized european competition policy system: lessons from the american experience

Indeed, scholars, economists, and notable practitioners have advanced numerous proposed general definitions of “exclusionary” conduct, the critical conduct element of Section 2’s monopolization offense.5 These tests include: (1) assessing net effects on consumer welfare (or net competitive effects)6; (2) engaging in a weighted comparison of competitive effects7; (3) determining if the defendant’s conduct involved a “profit-

Defining exclusionary conduct: section 2, the rule of reason, and the unif y ing principle underly ing antitrust rules

Antitrust law's "rule of reason," first endorsed by the Supreme Court in its 1911 Standard Oil decision, has evolved from a potentially wide-ranging and relatively unstructured inquiry limited in application to cases brought under Section 1 of the Sherman Act into a group of "rules of reason" that are used today to evaluate many different kinds of competitively sensitive conduct. Although still derided by critics as unstructured and error-prone, these rules of reason are instead structured and guided by core economic principles that focus on specific conduct's pro and anti-competitive effects. The burdens imposed on plaintiffs, public and private are demanding, and defendants win the overwhelming proportion of the time. Indeed, today's antitrust rules are the most business-friendly in the history of American antitrust law.In this article, I trace the intellectual history of the modern rule of reason from Standard Oil and Chicago Board of Trade to the more contemporary Supreme Court and appellate court decisions. Under the modern rule of reason that emerges, the instinct to categorize conduct as fitting into seemingly distinct categories subject to either the "per se rule" or the "rule of reason" has been supplanted by the view that the rule of reason is a single standard that is subject to varying modes of application -- a sliding-scale continuum that is focused on the nature and extent of the evidence of competitive effects. The article specifically revisits the origins of the "quick look" approach to applying the rule of reason and finds fault in the association of the quick look with evidence of "actual" anti-competitive effects. The quick look was rooted in a confidence that courts could, through rudimentary economic reasoning, easily discern the anti and pro-competitive potential of conduct in many cases short of "elaborate inquiry." "Economic reasoning" not "actual effects" is the foundation of a useful quick look. The article concludes by suggesting three reforms that might improve the application of the modern rules of reason, including a revitalized quick look that would integrate a more symmetrical plausibility screen. That screen would simultaneously evaluate the economic basis for both the plaintiff's case of anti-competitive effect and the defendant's assertion of efficiencies or other cognizable justifications.

Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice

For more than two decades, the U.S. Department of Justice, various states, the European Commission, and many private litigants pursued antitrust actions against the tech giant Microsoft. In investigating and prosecuting Microsoft, federal and state prosecutors were playing their traditional role of reining in a corporate power intent on eliminating competition. Seen from another perspective, however, the government's prosecution of Microsoft -- in which it deployed the century-old Sherman Antitrust Act in the volatile and evolving global business environment of the digital era -- was unprecedented. In this book, two experts on competition policy offer a comprehensive account of the multiple antitrust actions against Microsoft--from beginning to end -- and an assessment of the effectiveness of antitrust law in the twenty-first century. Gavil and First describe in detail the cases that the Department of Justice and the states initiated in 1998, accusing Microsoft of obstructing browser competition and perpetuating its Windows monopoly. They cover the private litigation that followed, and the European Commission cases decided in 2004 and 2009. They also consider broader issues of competition policy in the age of globalization, addressing the adequacy of today's antitrust laws, their enforcement by multiple parties around the world, and the difficulty of obtaining effective remedies -- all lessons learned from the Microsoft cases.

Andrew I. Gavil

Papers

Antitrust law in perspective : cases, concepts, and problems in competition policy

The challenges of economic proof in a decentralized and privatized european competition policy system: lessons from the american experience

Defining exclusionary conduct: section 2, the rule of reason, and the unif y ing principle underly ing antitrust rules

Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice

The Microsoft Antitrust Cases: Competition Policy for the Twenty-first Century