Updating the Merger Guidelines: Comments

These comments (originally submitted to the DOJ and FTC in November 2009) make a number of comments relevant to revising the Merger Guidelines. The comments focus on the use of the GUPPI (gross upward pricing pressure index) in unilateral effects analysis. They also comment on the deterrence and incipiency standard, exclusionary effects of horizontal mergers and market definition when there are multi-product firms or pre-merger coordination, among other issues

A Taxonomy for and Analysis of Anonymous Communications Networks

Any entity operating in cyberspace is susceptible to debilitating attacks. With cyber attacks intended to gather intelligence and disrupt communications rapidly replacing the threat of conventional and nuclear attacks, a new age of warfare is at hand. In 2003, the United States acknowledged that the speed and anonymity of cyber attacks makes distinguishing among the actions of terrorists, criminals, and nation states difficult. Even President Obama’s Cybersecurity Chief-elect recognizes the challenge of increasingly sophisticated cyber attacks. Now through April 2009, the White House is reviewing federal cyber initiatives to protect US citizen privacy rights. Indeed, the rising quantity and ubiquity of new surveillance technologies in cyberspace enables instant, undetectable, and unsolicited information collection about entities. Hence, anonymity and privacy are becoming increasingly important issues. Anonymization enables entities to protect their data and systems from a diverse set of cyber attacks and preserves privacy. This research provides a systematic analysis of anonymity degradation, preservation and elimination in cyberspace to enhance the security of information assets. This includes discovery/obfuscation of identities and actions of/from potential adversaries. First, novel taxonomies are developed for classifying and comparing well-established anonymous networking protocols. These expand the classical definition of anonymity and capture the peer-to-peer and mobile ad hoc anonymous protocol family relationships. Second, a unique synthesis of state-of-the-art anonymity metrics is provided. This significantly aids an entity’s ability to reliably measure changing anonymity levels; thereby, increasing their ability to defend against cyber attacks. Finally, a novel epistemic-based mathematical model is created to characterize how an adversary reasons with knowledge to degrade anonymity. This offers multiple anonymity property representations and well-defined logical proofs to ensure the accuracy and correctness of current and future anonymous network protocol design

Hidden Rules of a Modest Antitrust

Reforming antitust’s rule of reason by shifting burdens of proof to defendants will not solve antitrust’s enforcement drought. For the drought is due in part to the cost to enforcers of identifying rule of reason cases to bring and not just to the cost of winning the cases that enforcers do bring. Enforcement costs matter because enforcers’ budgets are limited—they have failed for a long time to keep up with GDP—and the rule of reason’s emphasis on case-specific effects makes it costly for enforcers to identify good cases to bring. The Supreme Court’s adoption of the rule of reason approach in recent decades must therefore have caused enforcers to police less conduct in order to balance their budgets, thereby turning the rule of reason into a hidden rule of per se legality for conduct no longer subject to enforcers’ watchful gaze. Whether this hidden rule has harmed consumers de-pends on whether the Court believes suspect conduct to be mostly good for consumers—in which case per se rules of legality are appropriate—or mostly bad, in which case the Court ought to balance enforcement budgets by scrapping the rule of reason in some areas and replacing it with the inexpensive-to-enforce per se rules of illegality that characterized mid-twentieth-century antitrust law. Either way, the Court’s current failure explicitly to recognize that an antitrust enforcement apparatus of modest means is incapable of delivering upon the idealism of case-by-case inquiries into consumer harm is intolerable. For the gap it creates between the careful adjudication described by the Court and the non-enforcement of actual practice makes a mockery of the law

The Arbitration Fairness Act: It Need Not and Should Not be an All or Nothing Proposition

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

The Arbitration Fairness Act: It Need Not and Should Not Be an All or Nothing Proposition

The proposed Arbitration Fairness Act (AFA) would prohibit all pre-dispute agreements to arbitrate in employment, consumer and franchise contracts. Although changes in the ideological composition of Congress mean that the AFA has little chance of enactment in the foreseeable future, mini-AFAs have been enacted banning pre-dispute arbitration agreements as applied to sexual harassment claims by employees of defense contractors and whistleblower claims by employees in the securities and commodities industries. This article charts a middle ground between those who would ban pre-dispute arbitration mandates in employment contracts completely and those who would leave them unregulated. After surveying the empirical evidence concerning arbitration and litigation of statutory employment claims and finding it inconclusive, the article finds that employer motives for imposing arbitration mandates on employees are diverse. Some employers seek a process that is less time-consuming and less costly than litigation while others seek to tilt the playing field to their advantage, suppressing employee claims. The article urges that when policed against abuses, arbitration can provide a fair forum that is more accessible for employees than litigation. It finds, however, that courts have not adequately policed arbitration mandates and recent decisions may undermine efforts of the arbitration community to self-police. The article proposes specific legislative reforms to ensure that employment arbitration mandates are not used to advantage employers at the expense of their employees and to ensure that arbitration provides a less expensive, less time-consuming and more employee-accessible process than litigation