Remedies Brief of Amici Curiae

None.

Biovail v. Hoechst Aktiengesellschaf, Inc: An Analysis Under the Sherman Act and the Noerr-Pennington Doctrine

The Hatch-Waxman Act of 1984 regulates approval by the Food and Drug Administration (“FDA”) of generic counterparts to patented drugs. In a series of recent cases, large pharmaceutical companies have been accused of exploiting Hatch-Waxman in violation of the antitrust laws. In essence, the allegations are concerned with the large pharmaceutical companies that have paid manufacturers not to market inexpensive generic versions of patented drugs, thereby restraining trade and maintaining a monopoly. In the case of Biovail v. Hoechst Aktiengesellschaf, Inc., the generic drug manufacturer, Biovail, sued Hoechst Aktiengesellschaf (“Hoechst”), a pharmaceutical company, for antitrust violations resulting from Biovail’s effort to gain approval from the FDA to market a generic version of Cardizem, a heart drug patented by Hoechst. The claims are that Hoechst unfairly manipulated the Hatch-Waxman Act to prevent Biovail from obtaining FDA approval for a generic counterpart to Cardizem. Even though the defendant Hoechst, may have intended to exclude the plaintiff, Biovail, as competitors, Hoechst will be substantially immune from antitrust liability under the Noerr-Pennington doctrine (“Noerr Immunity”), because Hoechst was acting within its constitutionally protected rights. The Noerr Immunity enjoyed by Hoechst is necessary to insure that the free- competition goals of the antitrust laws do not destroy Hoechst’s right to petition the government, as guaranteed by the First Amendment. Part I of this Comment discusses both the legal framework of the Hatch-Waxman Act as well as Biovail’s claims. Part II analyzes Biovail’s claims with respect to potential violations by Hoechst under section 1 and section 2 of the Sherman Antitrust Act (the “Sherman Act”). Part III analyzes Hoechst’s immunity under the Noerr Immunity doctrine. This Comment concludes that the Noerr Immunity doctrine protects Hoechst, even if they intended to manipulate the Hatch-Waxman Act

Biovail v. Hoechst Aktiengesellschaf, Inc: An Analysis Under the Sherman Act and the Noerr-Pennington Doctrine

The Hatch-Waxman Act of 1984 regulates approval by the Food and Drug Administration (“FDA”) of generic counterparts to patented drugs. In a series of recent cases, large pharmaceutical companies have been accused of exploiting Hatch-Waxman in violation of the antitrust laws. In essence, the allegations are concerned with the large pharmaceutical companies that have paid manufacturers not to market inexpensive generic versions of patented drugs, thereby restraining trade and maintaining a monopoly. In the case of Biovail v. Hoechst Aktiengesellschaf, Inc., the generic drug manufacturer, Biovail, sued Hoechst Aktiengesellschaf (“Hoechst”), a pharmaceutical company, for antitrust violations resulting from Biovail’s effort to gain approval from the FDA to market a generic version of Cardizem, a heart drug patented by Hoechst. The claims are that Hoechst unfairly manipulated the Hatch-Waxman Act to prevent Biovail from obtaining FDA approval for a generic counterpart to Cardizem. Even though the defendant Hoechst, may have intended to exclude the plaintiff, Biovail, as competitors, Hoechst will be substantially immune from antitrust liability under the Noerr-Pennington doctrine (“Noerr Immunity”), because Hoechst was acting within its constitutionally protected rights. The Noerr Immunity enjoyed by Hoechst is necessary to insure that the free- competition goals of the antitrust laws do not destroy Hoechst’s right to petition the government, as guaranteed by the First Amendment. Part I of this Comment discusses both the legal framework of the Hatch-Waxman Act as well as Biovail’s claims. Part II analyzes Biovail’s claims with respect to potential violations by Hoechst under section 1 and section 2 of the Sherman Antitrust Act (the “Sherman Act”). Part III analyzes Hoechst’s immunity under the Noerr Immunity doctrine. This Comment concludes that the Noerr Immunity doctrine protects Hoechst, even if they intended to manipulate the Hatch-Waxman Act

Creating, Capturing and Protecting Value A Property Rights-based View of CompetitiveStrategy

This paper develops a property rights-based view of strategy (the “PRV”). A property right (or economic right) is an individual’s net valuation, in expected terms, of the ability to directly consume the services of an asset (including, e.g., a monopoly position) or consume it indirectly through exchange. Resources expended on exchanging, protecting and capturing such rights are transaction costs; thus, we directly link property rights, transaction costs, and economic value. We assume that all relevant exchange is costly and that all agents maximize their property rights. This implies that economizing with transaction costs may be a distinct source of value, and potentially of sustained competitive advantage. Moreover, strategizing may be understood as revolving around influencing impediments (i.e., transaction costs) to value creation. Expectations and contracting also become crucial parts of processes of creating, protecting and capturing value. We use these insights to derive a number of refutable propositions, and argue that key insights from both industrial organization economics and the resource-based view are consistent with the PRV.Property rights, transaction costs, industrial organization

The fundamental problem of command : plan and compliance in a partially centralised economy

When a principal gives an order to an agent and advances resources for its implementation, the temptations for the agent to shirk or steal from the principal rather than comply constitute the fundamental problem of command. Historically, partially centralised command economies enforced compliance in various ways, assisted by nesting the fundamental problem of exchange within that of command. The Soviet economy provides some relevant data. The Soviet command system combined several enforcement mechanisms in an equilibrium that shifted as agents learned and each mechanism's comparative costs and benefits changed. When the conditions for an equilibrium disappeared, the system collapsed.Comparative Economic Studies (2005) 47, 296–314. doi:10.1057/palgrave.ces.810011

Monopolizing Free Speech

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This supposedly maximizes social welfare on the theory that the market promotes good ideas and condemns bad ones better than the state can. Nevertheless, there is a concern that large technology corporations exercise unreasonable power in the marketplace of ideas. Because “big tech’s” ability to abridge speech lacks constitutional obstacles, many litigants, politicians, and commentators have recently begun to claim that the act of suppressing speech is anticompetitive and thus should offend the antitrust laws. Their theory, however, seems contrary to antitrust law. Since antitrust is intended to promote consumer welfare in commercial markets, antitrust liability is typically reserved for firms that have harmed consumers economically. This generally requires showing higher prices or restricted output. As such, the courts have largely declared that speech entails noncommercial activity antitrust has no authority to govern, despite the emergence of rhetoric and lawsuits seeking to do just that. This Article argues that, contrary to precedent, antitrust law can and should promote commercial speech. The economy has evolved such that firms and consumers depend on information, ideas, and speech even when traded at zero prices—known as the “information economy.” In turn, technology firms encounter incentives to suppress types of commercial speech and, when wielding market power, the ability to do so. For example, Apple and Google allegedly bury information, advertising, and other forms of commercial expression about rival products to achieve anticompetitive ends, harming consumers and markets. This Article asserts that in certain instances, enforcement should condemn the exclusion of commercial information even when consumers enjoy low prices while resisting the emergence of rhetoric calling for the integration of all types of speech—e.g., expressive, political, and social speech—into antitrust’s framework. If antitrust promoted noncommercial speech, it would erode the First Amendment as well as antitrust law

Do Easy Cases Make Bad Law? Antitrust Innovations or Missed Opportunities in United States v. Microsoft

Much has been said and written regarding the legal and economic merits of U.S. v. Microsoft and the practicality of antitrust in high technology industries. The focus here is what this prominent case says about the role of economics in general, and in particular, "post-Chicago" approaches. Is antitrust economics and law on a progressive path, producing more refined analyses of industrial practices? Or is the path more like that of a pendulum, with doctrines coming back in style that had once fallen out of fashion? U.S. v. Microsoft suggests that the path of antitrust may be cyclical rather than progressive. The crux of the argument is that in U.S. v. Microsoft , the three aspects of an economically sound antitrust case, theory, evidence, and remedy, were largely independent of, if not inconsistent with, each other. Roughly speaking, the theory focused on monopolizing application platforms, the evidence spoke to monopolizing browser distribution, and the remedy treated applications themselves as the competitive lynchpin. The plaintiffs' success at trial suggests, in contrast to the older aphorism that , "hard cases make bad law," that this "easy case" may be responsible for "bad law," where an "easy case" is one where the victory at trial was so compelling and "bad law" refers to an ultimately reduced role for economics as an antitrust policy guidepost. These observations need not imply that Microsoft's conduct was benign. Isolating the theory, evidence, and remedy from the case, one can construct three potential rationales for finding Microsoft's actions anticompetitive. We also identify three additional stories based on tying with transaction costs, reputation-preserving predatory pricing, and intellectual property. That none of these stories were told suggests that U.S. v. Microsoft signals a return to pre-Chicago antitrust. Those preferring a less constraining role for economics in antitrust courts may agree with this assessment without finding it disagreeable. Moreover, there may be no better alternative, legislation or regulation need not lead to better outcomes. It may offer small comfort to observe that antitrust is not the only policy area in which progress in economic theory may ironically lead to regress in its importance.

The metamorphosis of the communist party: from entity to system and from system towards an entity

A complex analytical framework, the Interactive Party state model (IPS), is offered for revealing the structural and dynamic background of opposite processes: first, the development of the communist party as a political entity into a politically monopolized regime and then to a social system; second, the retreat of the party as a social system towards a politically monopolized regime or a political entity during the process of transformation into another system. We shall point to the fact that it is the structural background of the differences of the transformation process that brings about the different sequence of the retreat of the party as a social system from economic or political sub-fields first. The different sequence will be accompanied by different economic conditions for political transformation contributing to the complete or partial retreat of the party to either a political entity or to an authoritarian political regime.party-state systems, social system evolution, differences among partystates, varieties of capitalism, path-dependencies in system transformation

Under which conditions is carrier cooperation possible? A case study in a Seville marketplace

The high volume of traffic originates two well-known problems in many cities: congestion and pollution. In recent years, a social phenomenon is emerging cooperation. This work is aimed at evaluating the circumstances under which transport cooperation is possible between different stakeholders operating in the same geographical area. To this end, a double survey process was conducted in a marketplace situated in the Seville City (Spain) centre. The first survey was designed to know the characteristics of the retailers and their preferences with respect to cooperation and regulations. A relational analysis between retailer features and their willingness to cooperate was carried out. After analysing the motivations for non-cooperation, a mixed proposal was designed and surveyed. Although the research was limited to a marketplace, the relevant data gathered from this double survey process highlights some implications: (a) the importance of personal relations in retailer cooperation; (b) a high volume of freight and the use of vans as on-street warehouses appear as significant motivations for non-cooperation; (c) forcing changes in the statu quo encourages cooperation.Ministerio de Economía y Competitividad (España) TEC2013-47286-C3-3-

The Necessity in Antitrust Law

Antitrust rarely, if ever, gives primacy to a dispute’s subject matter. For instance, exclusionary conduct that raises the price of a lifesaving drug receives the same analysis as a restraint of baseball cards. Since antitrust’s purpose is to promote consumer welfare, the equal treatment of important and mundane goods might appear perplexing. After all, competition to produce affordable foods, medicines, and other necessities would seem to foster consumer welfare more than inane products do. In fact, defendants generally win antitrust lawsuits even when monopolizing necessities because the primary method of antitrust review is notably deferential to defendants. To explain this landscape, the high prices available in a monopoly should incentivize rivals to enter the market, creating competition and correcting the market. Additionally, people may presumably mitigate high prices by buying a lesser substitute or nothing at all. Since courts apply the same level of deference regardless of the market’s importance, a defendant who cites an efficiency gained from excluding competition can typically survive antitrust scrutiny. This Article argues that core pillars of antitrust make little sense with necessities. An exclusionary act in an essential market extracts an added premium reflecting society’s vulnerability, making the costs of market power much greater than with mundane goods. The effect is that antitrust courts have systematically underestimated the costs of monopolies and trade restraints in essential markets, causing them to misidentify anticompetitive acts as procompetitive. Indeed, whereas antitrust assumes that consumers enjoy options when faced with monopoly pricing, people who need a necessity such as a life-saving drug will pay the high prices so long as they can. The implications are many. First, a larger spectrum of consumers must pay the monopoly rates. Second, whereas a cartel of artisan belt makers may only charge so much before consumers purchase mass-produced belts, a monopolist can demand a greater premium without losing consumers. Third, this landscape incentivizes collusion since firms can extract more money from more people. Fourth, anticompetitive conduct is more likely to harm marginalized groups who suffer higher switching costs (for example, self-medication over expensive pharmaceuticals) or even complete deprivations of necessities. This Article argues that the concepts of essentialness and inelasticity must be integrated into the substantive analysis of whether conduct is anticompetitive. It provides a logical framework to do so using a seldom employed approach called the “quick look,” which would flip the burden onto the defendant and thereby strip the typical analysis of its deference in essential markets. In fact, since confusion over when the quick look is proper has made it a rarity—despite widespread support for its usage—this Article’s approach would establish an effective place for the test. Also, recognizing the greater level of harm inflicted on especially marginalized populations, the proposal would enhance welfare by beginning to disaggregate the term “consumers.