How Not to Apply the Rule of Reason: The \u3cem\u3eO’Bannon\u3c/em\u3e Case

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of antitrust, intellectual property, and sports law, the O’Bannon case presents engaging and complex issues. Much of the complexity, however, is unnecessary. For it stems from a ruling that misconstrued antitrust law. In particular, the Ninth Circuit applied a version of the Rule of Reason that short-circuited the analysis and insufficiently deferred to a district court judge who presided over an exhaustive trial on amateurism

Justice Oliver Wendell Holmes: Law and the Inner Self

A Review of Justice Oliver Wendell Holmes: Law and the Inner Self by G. Edward Whit

Improvements in Microboiling Device Design

Small ribbon heaters (10 μm - 20 μm wide) have been used for many years to study the formation of microbubbles in liquids when short voltage pulses are applied. This thesis describes improvements in the device design with an emphasis on smaller and more sensitive heaters. I used a novel method of creating 250 nanometer wide heaters to keep both the fabrication time and costs as low as possible by using a focused ion beam to create the heaters from a set of larger devices. Ribbon heaters are usually fabricated on a thin SiO2 layer on a silicon wafer which acts as a large heat sink whose effect becomes more pronounced the smaller the heater width. Suspending the heaters on a thin membrane dramatically increased their sensitivity in microboiling experiments. The suspended devices required the development of a very low stress platinum deposition process

Why a Large and Unjustified Payment Threshold Is Not Consistent with \u3ci\u3eActavis\u3c/i\u3e

This Article offers three reasons why a requirement that a plaintiff demonstrate a large and unjustified payment before reaching the rule of reason is not consistent with Actavis. First, nearly all of the Court’s discussion of large and unjustified payments occurred in contexts unrelated to the antitrust analysis that future courts were to apply. Second, the Court instructed lower courts to apply the rule of reason, not a new framework with a threshold it never mentioned. And third, such a threshold is inconsistent with the Court’s (1) allowance of shortcuts for plaintiffs to show anticompetitive effects and market power and (2) imposition of the burden on defendants to show justifications for a payment

Sharing, Samples, and Generics: an Antitrust Framework

Rising drug prices are in the news. By increasing price, drug companies have placed vital, even life-saving, medicines out of the reach of consumers. In a recent development, brand firms have prevented generics even from entering the market. The ruse for this strategy involves risk-management programs known as Risk Evaluation and Mitigation Strategies (“REMS”). Pursuant to legislation enacted in 2007, the FDA requires REMS when a drug’s risks (such as death or injury) outweigh its rewards. Brands have used this regime, intended to bring drugs to the market, to block generic competition. Regulations such as the federal Hatch-Waxman Act and state substitution laws foster widespread generic competition. But these regimes can only be effectuated through generic entry. And that entry can take place only if a generic can use a brand’s sample to show that its product is equivalent. More than 100 generic firms have complained that they have not been able to access needed samples. One study of 40 drugs subject to restricted access programs found that generics’ inability to enter cost more than $5 billion a year. Brand firms have contended that antitrust law does not compel them to deal with their competitors and have highlighted concerns related to safety and product liability in justifying their refusals. This Article rebuts these claims. It highlights the importance of samples in the regulatory regime and the FDA’s inability to address the issue. It shows how a sharing requirement in this setting is consistent with Supreme Court caselaw. And it demonstrates that the brands’ behavior fails the defendant-friendly “no economic sense” test because the conduct literally makes no sense other than by harming generics. Brands’ denial of samples offers a textbook case of monopolization. In the universe of pharmaceutical antitrust behavior, other conduct—such as “pay for delay” settlements between brands and generics and “product hopping” from one drug to a slightly modified version—has received the lion’s share of attention. But sample denials are overdue for antitrust scrutiny. This Article fills this gap. Given the failure of Congress and the FDA to remedy the issue, antitrust can play a crucial role in ensuring generic access to samples, affirming a linchpin of the pharmaceutical regime

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreement

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements

SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreement