William M. Sage
This chapter examines the role of antitrust law in the governance of healthcare competition in the United States as the Patient Protection and Affordable Care Act of 2010 (ACA) takes full effect. It provides an overview of U.S. antitrust law before turning to recent and ongoing controversies involving antitrust law and healthcare, including those relating to hospital mergers, consolidation in the health insurance industry, accountable care organizations, and generic drugs. It then steps back to consider deeper questions of competition policy in the post-ACA era that may determine the economic sustainability and quality of the U.S. healthcare system.
Warren K. Zola
The intersection of law and college athletics is unique given the role that the NCAA, a private membership association, plays in defining amateurism in the United States. In the twenty-first century, college athletics has evolved into a multi-billion-dollar-a-year industry. Yet, as the revenue to college athletics skyrockets—primarily as a result of exploding media broadcast rights fees—compensation to the labor that produces the demand for this product, the college athletes, remains restricted. Increasingly, lawsuits challenge the NCAA’s efforts to protect its version of amateurism. As a result of the growing tension between ideology and commercialism, it is abundantly clear that change is coming to the landscape of college athletics.
David J. Gerber
This article examines comparative competition law. It looks first at the current state of the literature. It envisions a path for comparative antitrust law scholarship that may allow it to realize more fully its potential value and respond more effectively to the challenges of economic globalization. Three main themes run through this article. One is that US law dominates the world of comparative competition law scholarship. A second is that the centrality of US law and experience divides the writing in the area and often distorts it. The third thread that runs through this article identifies the potential impact of economic globalization on the agenda of comparative competition law and the opportunities it creates for writers in the area to contribute to creating a sounder policy framework for transnational markets.
David J. Gerber
This article examines key aspects of competition-law scholarship in the United States and Europe. It first reviews EU and US competition-law scholarship separately. For each system, it looks at the context and dimensions of scholarship, then at debates and issues regarding goals and methods, and finally at conflicts and controversies in specific substantive areas. It concludes by looking at how globalization may, and perhaps should, influence the future development of competition-law scholarship.
This chapter deals with the European Union law on competition and mergers, with emphasis on the provisions of Articles 101 and 102 of the TFEU. The role of markets is to coordinate supply and demand. EU competition law is applied to address situations in which firms are able to distort the ability of markets to coordinate supply and demand, such problems arising when firms are able to aquire or exercise power over the market. A number ways in which problems of market power manifest themselves and the ways in which EU competition law can be, and has been, marshalled to address those problems are the subject of this chapter. This chapter considers the idea of a market and the absence of competitive constraints, before consider unilateral and collusive behaviour giving rise to or exploiting market power. Finally, it considers the EU Merger Regulation as a primary instrument for regulating the competitive consequences of durable changes in market structure.
This chapter examines and appraises the system for enforcing Articles 101 and 102 TFEU that has developed in the EU, and considers whether effective enforcement mechanisms have been put in place that adequately respect the rights of the undertakings or persons involved. It examines both public enforcement through the European Competition Network, comprised of the Commission and national competition authorities, and private enforcement, through civil litigation in the national courts. In particular, it considers whether the EU enforcement system, under which the Commission performs investigative, enforcement, and adjudicative functions and the role of the EU courts is confined to review of the decisions and penalties imposed, is adequate to protect the fundamental rights of the undertakings involved in investigations. It also examines the steps that have been taken at EU level to increase the volume of private litigation and to ensure full compensation for antitrust victims.
C. Scott Hemphill
This chapter surveys the intersection of competition law—or antitrust law, as it is known in the United States—with intellectual property (IP). It examines whether and how IP rights alter the substantive scope of antitrust law, either by operation of statute or as a matter of economic policy. It discusses a wide variety of antitrust claims, alleging collusion, exclusion, or both, that have been raised against IP rights holders. The examples are drawn mainly from the United States, although European developments are also included where relevant. The analysis supports the conclusion that, beyond a rights holder’s core ability to assert a valid, infringed right against a rival, IP restricts antitrust law less than one might expect. Moreover, the restrictions that do exist are often subtle.
The free movement of services is a sensitive aspect of the internal market. Economically, because large cost differences between states make competition in services markets fierce and destabilizing. Socially and politically, because that competition has consequences not just for conventionally economic activities but also for traditionally public services such as education and healthcare, as well as for contested services such as gambling and abortion, and even for non-economic organizations such as trade unions. The fact that almost all central elements of the primary law on services are ill defined in the case law then takes on a particular significance. This chapter considers the definitions of a service and its economic nature, the nature of a restriction on the movement of services, horizontal effect, and interpretation by the Court of Justice of mandatory requirements and Treaty derogations.