Judge Koh’s Monopolization Mania: Her Novel Antitrust Assault Against Qualcomm Is an Abuse of Antitrust Theory

I. Introduction: A Blockbuster Decision II. The Typology of Antitrust Offenses ... A. Per Se Offenses ... B. Rule of Reason Cases ... C. Per Se Legality or “No-Duty” Rules III. FTC v. Qualcomm ... A. The Complaint and the Ohlhausen Dissent ... B. The Monopolization Issue ... C. Market Definition ... D. Trinko and the Antitrust Duty to Deal ... E. Qualcomm’s Pricing Policy—The Use of Constant Rates ... F. The FTC Valuation Dilemma … G. Qualcomm Efficiency Justifications IV. Conclusio

The Best for Last: The Timing of U.S. Supreme Court Decisions

This Article investigates the hypothesis that the most important and, often, controversial and divisive cases—so called big cases—are disproportionately decided at the end of June. We define a big case in one of four ways: front-page coverage in the New York Times; front-page and other coverage in four national newspapers (the New York Times, Los Angeles Times, Washington Post, and Chicago Tribune); the number of amicus curiae briefs filed in a case; and the number of subsequent citations by the Supreme Court to its decision in a case. We find a statistically significant association between each measure of a big case and end-of-term decisions even after controlling for the month of oral argument (cases argued later in the term are more likely to be decided near the end of the term) and case attributes (e.g., dissents and concurrences) that increase the time it takes to decide a case. We also speculate on why big cases cluster at the end of the term. One possibility is legacy and reputational concerns: when writing what they think will be a major decision, the Justices and their law clerks take more time polishing until the last minute with the hope of promoting their reputations. Another is that the end-of-term clustering of the most important cases may tend to diffuse media coverage of and other commentary regarding any particular case, and thus spare the Justices unwanted criticism just before they leave Washington for their summer recess