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Corporate & Securities Law

Truth on the Market

Academic commentary on law, business, economics and more.

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Last Entry: May 07, 2013 at 17:55:40

Zeke Emanuel on the ACA’s Adverse Selection Problem and Solutions to It

Posted on May 07, 2013
Ezekiel Emanuel, Rahm’s brother and former health care adviser to President Obama, acknowledges in today’s Wall Street Journal that adverse selection may prove to be a “bump in the road” in the implementation of the Affordable Care Act (ACA)...

Behavioral Merger Remedies and the Hippocratic Principle

Posted on April 22, 2013
Last Thursday, the FTC settled a challenge to a company’s acquisitions of two key rivals. The two acquisitions, each of which failed to meet the threshold for required reporting under Hart Scott Rodino, occurred in 2005 and 2008. Because the acquired companies have been fully integrated into the acquirer and all distinct operations have been [...

Commissioner Wright lays down the gauntlet on Section 5

Posted on April 16, 2013
As Thom noted (here and here), Josh’s speech at the ABA Spring Meeting was fantastic. In laying out his agenda at the FTC, Josh highlighted two areas on which he intends to focus: Section 5 and public restraints on trade. These are important, even essential, areas, and Josh’s leadership here will be most welcome...

Commissioner Wright’s Speech at the ABA Antitrust Section’s Spring Meeting

Posted on April 15, 2013
Friday I discussed FTC Commissioner (and TOTM alumnus) Josh Wright’s speech at the Spring Meeting of the ABA’s Antitrust Section. Wright’s speech, What’s Your Agenda?, is now available online. As I mentioned, Commissioner Wright emphasized two matters on which he’d like to see FTC action...

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Some Thoughts on the Spring Meeting: Bummed About RPM, Happy About the FTC’s Future

Posted on April 12, 2013
I’ve spent the last few days in DC at the ABA Antitrust Section’s Spring Meeting. The Spring Meeting is the extravaganza of the year for antitrust lawyers, bringing together leading antitrust practitioners, enforcers, and academics for in-depth discussions about developments in the law...

How Copyright Drives Innovation in Scholarly Publishing

Posted on April 05, 2013
[Cross posted at the Center for the Protection of Intellectual Property blog.] Today?s public policy debates frame copyright policy solely in terms of a ?trade off? between the benefits of incentivizing new works and the social deadweight losses imposed by the access restrictions imposed by these (temporary) ?monopolies...

Upcoming Teleforum: The State of the Patent System — A Discussion with Chief Judge Rader

Posted on April 02, 2013
The State of the Patent System: A Discussion with Chief Judge Rader A teleforum on Thursday, April 11, at 2pm. Hosted by George Mason Law School’s Center for the Protection of Intellectual Property Teleforum and the Federalist Society‘s Intellectual Property Practice Group...

Hey Hey! Ho Ho! Partial De Facto Exclusive Dealing Claims Have Got to Go!

Posted on March 27, 2013
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 [...

Mason LEC Program on the Consumer Financial Protection Board, May 2, 2013

Posted on March 26, 2013
Filed under: truth on the market

Meese, Mellor & Rowes on Economic Liberty and the Fourteenth Amendment

Posted on March 25, 2013
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These words from the U.S. Constitution’s Fourteenth Amendment lurk behind a great many news stories these days...

The SHIELD Act: When Bad Economic Studies Make Bad Laws

Posted on March 15, 2013
Earlier this month, Representatives Peter DeFazio and Jason Chaffetz picked up the gauntlet from President Obama?s comments on February 14 at a Google-sponsored Internet Q&A on Google+ that ?our efforts at patent reform only went about halfway to where we need to go? and that he would like ?to see if we can build some [...

Forbes commentary on Susan Crawford’s “broadband monopoly” thesis

Posted on March 02, 2013
Over at Forbes Berin Szoka and I have a lengthy piece discussing “10 Reasons To Be More Optimistic About Broadband Than Susan Crawford Is.” Crawford has become the unofficial spokesman for a budding campaign to reshape broadband. She sees cable companies monopolizing broadband, charging too much, withholding content and keeping speeds low, all in order to [...

Criticizing the FTC?s Proposed Order in the Google Patent Antitrust Case

Posted on February 22, 2013
I filed comments today on the FTC?s proposed Settlement Order in the Google standards-essential patents (SEPs) antitrust case. The Order imposes limits on the allowable process for enforcing FRAND licensing of SEPs, an area of great complexity and vigorous debate among industry, patent experts and global standards bodies...

Josh Wright begins making his mark at the FTC by pushing cost-benefit analysis

Posted on February 04, 2013
Although it probably flew under almost everyone’s radar, last week Josh issued his first Concurring Statement as an FTC Commissioner. The statement came in response to a seemingly arcane Notice of Proposed Rulemaking relating to Hart-Scott-Rodino Premerger Notification Rules: The proposed rules also establish a procedure for the automatic withdrawal of an HSR filing when [...

Copyright, Property Rights, and the Free Market

Posted on February 01, 2013
Over at Cato Unbound, there has been a discussion this past month on copyright and copyright reform. In his recent contribution to this discussion, Mark Schultz posted an excellent essay today, Where are the Creators? Consider Creators in Copyright Reform, that calls out the cramped, reductionist view of copyright policy that leads some libertarians and [...

George Will on My “Plausible Judgment” About the Future of the ACA

Posted on January 21, 2013
In his nationally syndicated column this week, Washington Post columnist George Will highlights what he termed my “plausible judgment” (I’m taking that as high praise!) that the Supreme Court’s Affordable Care Act decision “may have made the ACA unworkable, thereby putting it on a path to ultimate extinction...

Mossoff Speaking at the Smithsonian Institution on Tuesday, Jan. 15

Posted on January 13, 2013
For loyal readers of Truth on the Market who are in the D.C. area on Tuesday, come check out this fun talk. Heck, forget the talk, they’re serving tea and cookies! Filed under: truth on the market

Regulation Magazine Cover Article: “How the Supreme Court Doomed the ACA to Failure”

Posted on January 11, 2013
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...

Powerhouse ABA webinar on the FTC?s investigation of Google this Friday

Posted on January 09, 2013
The suit against Google was to be this century?s first major antitrust case and a model for high technology industries in the future. Now that we have passed the investigative hangover, the mood has turned reflective, and antitrust experts are now looking to place this case into its proper context...

James M. Buchanan — 1919-2013

Posted on January 09, 2013
Yet another loss of a giant in the world of law and economics. On December 19, it was Robert Bork. Today, we lost economist James M. Buchanan, Nobel laureate, George Mason professor, and one of the fathers of Public Choice economics. Regular readers of TOTM will know that several of us–including yours truly–have been heavily influenced by the insights of Public [...

The price of closing the Google search antitrust case: questionable precedent on patents

Posted on January 04, 2013
The Federal Trade Commission yesterday closed its investigation of Google?s search business (see my comment here) without taking action. The FTC did, however, enter into a settlement with Google over the licensing of Motorola Mobility?s standards-essential patents (SEPs)...

FTC Deservedly Closes Google Antitrust Investigation Without Taking Action

Posted on January 03, 2013
I have been a critic of the Federal Trade Commission?s investigation into Google since it was a gleam in its competitors? eyes?skeptical that there was any basis for a case, and concerned about the effect on consumers, innovation and investment if a case were brought...

Off to the FTC and a Blogging Hiatus from TOTM

Posted on January 02, 2013
As Geoff mentioned, I was fortunate enough to be confirmed by the Senate yesterday as Commissioner of the Federal Trade Commission. I’m excited about the opportunity and very much looking forward to getting started in the new job. Unfortunately, this means I will be taking a hiatus from blogging here at TOTM for awhile...

Federalist Society and AALS talks this week

Posted on January 02, 2013
I’ll be headed to New Orleans tomorrow to participate in the Federalist Society Faculty Conference and the AALS Annual Meeting. For those attending and interested, I’ll be speaking at the Fed Soc on privacy and antitrust, and at AALS on Google and antitrust...

Congratulations to FTC Commissioner Josh Wright

Posted on January 02, 2013
All of us here at TOTM are thrilled to announce that the Senate yesterday confirmed Josh Wright to be the next Commissioner of the Federal Trade Commission. As I wrote upon Josh?s nomination: Josh is widely regarded as the top antitrust scholar of his generation...

Encouragement vs. Incentive: Some Food for Thought in the Copyright Debates

Posted on December 27, 2012
Given the kerfuffle among libertarians and conservatives in the past month over what is basic copyright policy, my colleague and copyright law expert, Chris Newman, sent me this interesting Google Ngram graph on the use of “encouragement” vs...

Meese on Bork (and the AALS)

Posted on December 22, 2012
William & Mary’s Alan Meese has posted a terrific tribute to Robert Bork, who passed away this week. Most of the major obituaries, Alan observes, have largely ignored the key role Bork played in rationalizing antitrust, a body of law that veered sharply off course in the middle of the last century...

Podcast of Debate Between Judges Posner and Michel on the Patent System

Posted on December 20, 2012
You can listen here: http://www.fed-soc.org/publications/detail/is-the-patent-system-working-or-broken-a-discussion-with-judges-posner-and-michel-podcast Is the Patent System Working or Broken? A Discussion with Judges Posner and Michel Today, people read almost daily reports about the ?broken patent system? in newspaper articles, blogs and at social media websites...

Time for Congress to Cancel the FTC’s Section 5 Antitrust Blank Check

Posted on December 20, 2012
By Geoffrey Manne and Berin Szoka A debate is brewing in Congress over whether to allow the Federal Trade Commission to sidestep decades of antitrust case law and economic theory to define, on its own, when competition becomes ?unfair.? Unless Congress cancels the FTC’s blank check, uncertainty about the breadth of the agency?s power will [...

Tears for Tiers: Wyden?s “Data Cap” Restrictions Would Hurt, not Help, Internet Users

Posted on December 20, 2012
By Geoffrey Manne & Berin Szoka As Democrats insist that income taxes on the 1% must go up in the name of fairness, one Democratic Senator wants to make sure that the 1% of heaviest Internet users pay the same price as the rest of us. It?s ironic how confused social justice gets when the [...