Bakke Betrayed

While it seems that a President who disagrees with the Supreme Court\u27s account of the Constitution faces only two choices--to enforce the Court\u27s decision or defy the Court and take his case to a skeptical populace--there is a third way in which the President can publicly embrace the doctrine in question, while at the same time refusing to follow it. Pres Clinton\u27s Administration has followed just such a third way approach to Regents of the University of California v. Bakke

A Careful Examination of the Live Nation-Ticketmaster Merger

As great admirers of The Boss and as fans of live entertainment, we share in the popular dismay over rising ticket prices for live performances. But we have been asked as antitrust scholars to examine the proposed merger of Live Nation and Ticketmaster, and we do so with the objectivity and honesty called for by The Boss’s quotes above. The proposed merger has been the target of aggressive attacks from several industry commentators and popular figures, but the legal and policy question is whether the transaction is at odds with the nation’s antitrust laws. One primary source of concern to critics is that Ticketmaster and Live Nation are two leading providers of ticket distribution services, and these critics argue that the merged entity would have a combined market share that is presumptively anticompetitive. We observe, however, that this transaction is taking place within a rapidly changing industry. The spread of Internet technologies has transformed the entertainment industry, and along with it the ticket distribution business such that a reliance on market shares based on historical sales is misleading. A growing number of venues, aided by a competitive bidding process that creates moments of focused competition, can now acquire the requisite capabilities to distribute tickets to their own events and can thus easily forgo reliance upon providers of outsourced distribution services. If self-distribution is an available and attractive option for venues, as it appears to be, then it is unlikely that even a monopolist provider of fully outsourced ticketing services could exercise market power. Ultimately, a proper assessment of the horizontal effects of this merger would have to weigh heavily the emerging role of Internet technologies in this dynamic business and the industry-wide trend towards self-distribution. The second category of arguments by critics opposing the merger rests on claims that vertical aspects of the transaction would produce anticompetitive effects. Indeed, Ticketmaster’s and Live Nation’s core businesses are in successive markets, and thus the proposed transaction is primarily a vertical merger, but there is broad agreement among economists and antitrust authorities that vertical mergers rarely introduce competitive concerns and are usually driven by efficiency motivations. This wealth of academic scholarship, which is reflected in current antitrust law, has not - from our vantage point - been properly incorporated into the public dialogue concerning the proposed merger. To the contrary, critics articulate concerns, including the fears that the merger would lead to the leveraging of market power and the foreclosure of downstream competition, that are refuted by accepted scholarship. Moreover, there are a number of specific efficiencies that, consistent with economic and organizational theory, are likely to emerge from a Live Nation-Ticketmaster merger and would be unlikely but for the companies’ integration. For these reasons, we submit this analysis in an effort to inform the debate with current economic and legal scholarship

“It Belongs to the Internet”: Animal Images, Attribution Norms and the Politics of Amateur Media Production

Abstract not available

User production and law reform: a socio-legal critique of user creativity

© 2015, © The Author(s) 2015. This article argues that recent scholarly attempts to prescribe creative agency to a user subject rarely consider how the user functions in a broader legal and cultural context. I suggest that the user is a complex subject defined by various cultural and legal discourses, following a critical body of scholarship that calls for a more nuanced approach to the issue of user production. I show how the user-a term often treated neutrally in the user production literature-is a subject that is already defined by extant legal discourses like copyright. This argument is developed in a detailed analysis of Canadian copyright law and the Copyright Modernization Act, a reform to Canadian copyright law, which attempted to address the phenomenon of user production. These examples show the user is embroiled in a broader set of creative politics where being defined as a user or an author can have commercial implications. I suggest greater specificity and qualification around the role and scope of the user is needed in future scholarship examining the phenomenon of user production

The domestic ecology of Australian subscription video on demand services

© 2017, © The Author(s) 2017. This article presents early findings from a study examining the introduction of subscription video on demand (SVOD) services to the Australian market from the perspective of the Australian home. Through a series of group interviews with nine ‘early adopter’ households in Melbourne and Sydney, I detail how these services entered the home and contribute to changing habits and practices around media consumption and access. These interviews reveal that despite the ‘mobile’ promise of SVOD services, households still view the television as a central site for communal media consumption. This consumption is also becoming increasingly legal, with participants engaging in less copyright infringement after subscribing. While many households are still using circumvention tools to access overseas libraries, this is highly dependent on the presence of a digitally literate householder

Reframing the (False?) Choice Between Purchaser Welfare and Total Welfare

This Article critiques the role that the partial equilibrium trade-off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both the positive and negative impacts of a transaction are permanent and occur immediately and simultaneously. As a result, the model excludes the (very real) possibility that subsequent entry will undermine or mitigate any market power, leaving only efficiencies that benefit purchasers in the original market. Removal of these unrealistic assumptions requires the antitrust community to reframe the debate about the appropriate welfare standard for antitrust and could require adjustment of the standards applied to practices that both raise prices and create efficiencies in the relevant market. For instance, recognition that efficiencies generated in one market cause resource flows to other markets and higher output in such markets undermines claims that producers “pocket” efficiencies whenever a practice results in higher prices. Thus, instead of involving a conflict between “producers” and “purchasers” in a single market, transactions that both raise prices and create efficiencies require antitrust policy to resolve a conflict between purchasers in the original market, on the one hand, and those in other markets, on the other. In the same way, the realization that the trade-off model ignores the passage of time requires antitrust policy to resolve a conflict between current and future purchasers in the original market

Section 2 Enforcement and the Great Recession: Why Less (Enforcement) Might Mean More (GDP)

The Great Recession has provoked calls for more vigorous regulation in all sectors, including antitrust enforcement. After President Obama took office, the Antitrust Division of the Department of Justice abandoned the Bush Administration’s standard of liability under section 2 of the Sherman Act, which forbids unlawful monopolization, as insufficiently interventionist. Based on the premise that similarly lax antitrust enforcement caused and deepened the Great Depression, the Obama Administration outlined a more intrusive and consumer-focused approach to section 2 enforcement as part of a larger national strategy to combat the “extreme” economic crisis the nation was then facing. This Essay draws on macroeconomic theory and the New Deal experience to examine the relationship between section 2 standards and macroeconomic stability. In particular, this Essay evaluates the claim that more aggressive section 2 enforcement focused on maximizing the welfare of consumers who purchase from monopolists would help forestall and ameliorate economic downturns. While empirical evidence confirms the Obama Administration’s claims that New Deal efforts to cartelize prices and wages exacerbated the Depression, this Essay argues that substitution of this novel and more intrusive “consumer welfare effects” test for the Bush Administration’s “disproportionality” standard would not stimulate aggregate demand, and may even reduce national output at the margins. Given the ambiguity in the aggregate impact of such enforcement, this Essay concludes that antitrust regulation should abandon any pretensions of being a tool for macroeconomic stabilization, and focus solely on identifying and condemning conduct that on balance results in a misallocation of resources and a reduction in total economic surplus. By keeping its microeconomic focus, antitrust regulation can help maximize the potential value of the gross domestic product, while monetary and fiscal policy produce sufficient aggregate demand to ensure full employment of society’s resources and to achieve that potential value