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TABLE OF CONTENTS INTRODUCTION 392 I. SUMMARY JUDGMENT 396 A. The Trilogy 397 B. Specific Areas of Law 400 1. Antitrust 402 2. Securities Regulation 406 3. Federal Civil Rights [...], The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court's decisions had a statistically significant effect in antitrust, an ambiguous effect in civil rights cases, and no effect in securities regulation. We also find that, in the trilogy's wake, antitrust appellate cases were far more likely to cite trilogy cases--particularly the one trilogy case that was an antitrust case--than appellate cases in the other areas. This suggests that the lone trilogy case that arose in antitrust had an effect on decision making in that field, but that the trilogy had a limited effect across other substantive areas of law. This finding differs from Twombly and Iqbal where an antitrust decision ultimately reshaped the entire body of law across doctrines around motions to dismiss.

TABLE OF CONTENTS I INTRODUCTION 256 II ANTITRUST MERGER LAW 258 III WHY DOES EXIT VIA ACQUISITION MATTER TO ENTREPRENEURSHIP? 262 IV A BRIEF EXPLANATION OF THE BUSINESS MODEL OF [...], This Article addresses the potentially negative implications of proposed antitrust legislation on the entrepreneurial ecosystem in general, with a particular focus on the venture capitalists (VCs) that fund it. First, it offers a review of how antitrust merger law currently works and how proposed legislative changes to antitrust may threaten the innovative Venture Capital (VC)-backed ecosystem that has made the United States the center of global innovation across many different industries. Accompanying this review are some empirical observations. Second, recognizing that the understanding of innovative entrepreneurial activity calls for a deep appreciation of those who back it, the Article also provides an overview of the entrepreneurial ecosystem and VCs' motivations within this niche environment. In so doing, the Article identifies the drivers of entrepreneurial innovation and explains why changes to merger law may threaten these models of facilitating innovative, growth-orientated entrepreneurs. Finally, the Article concludes that changes to merger law may negatively affect the entire entrepreneurial ecosystem and hinder innovation in the United States.

This Article will review empirical evidence on the effects of privacy laws--particularly those regulating personal data collection and use--on competition, aiming to inform regulators regarding potential antitrust impacts. Regulators often assume that competition laws cannot sufficiently address antitrust issues in digital services markets and may view privacy regulations as a means to bridge antitrust gaps to foster competition, viewing them as generally pro-competitive. However, empirical evidence reveals a more complex relationship between privacy regulations and competition, indicating that through their impacts on market concentration, firm entry and exit, advertising, contracting, and compliance costs, among others, privacy laws can potentially undermine competition and even erode consumer privacy. Informed by the empirical evidence, privacy and antitrust regulators should account for these effects in crafting and deploying regulations. [ABSTRACT FROM AUTHOR]

THE CURSE OF BIGNESS: ANTITRUST IN THE NEW GILDED AGE. By Tim Wu. New York: Columbia Global Reports. 2018. Pp. 14, 139. $14.99. INTRODUCTION Tim Wu (1) is the most [...]

INTRODUCTION A fundamental research question in law has been to explain how caselaw develops. Perhaps the most famous formulauon of how law works in practice in the past half century [...], This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a "platform,"could, under a certain set of parameters, lead to efficient outcomes. Next, the Article's analysis suggests that while not every judge thinks about efficiency in decisionmaking, there must be some architectural or governance feature pushing in the direction of efficiency--which exists in some areas of law and not in others. This Article explains two-sided markets, or platforms, generally and applies the modular open-source platform model to judge made law. In doing so, it explores concepts that impact the efficiency of such platforms--platform governance, modularity, and fragmentation. Then, this Article applies the understanding of platforms to several areas of law that might be understood as more prone to economic analysis because the issues addressed in law tend to be more ""economic,"" such as torts, bankruptcy, patents, and corporations. In these areas, no combination of platform architecture and modularity has allowed for the development of more efficient legal rules as a general matter. Finally, this Article studies antitrust law as the one area of law that suggests that the efftciency of common law is possible and the causal mechanism of necessary conditions that needs to be met. Antitrust law is different than other areas of law because of a singular goal, an architectural governance based on a single federal court (the Supreme Court) with few substantive legislative changes for the past one hundred years, which provides for coherent governance of the platform. This Article concludes by discussing the implications of an efficient platform design for other areas of law.

TABLE OF CONTENTS INTRODUCTION 1548 I. ANTITRUST AND DETERRENCE 1549 II. CRIMINAL ANTITRUST THEN AND NOW 1554 A. Early Criminal Antitrust 1554 B. The Rise of Modern Criminal Enforcement 1555 [...], Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already "on the books." A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are "on the books" but have not been used in over a generation. A return of criminalization for noncollusion related antitrust abuses presents potential legal problems. Current antitrust jurisprudence and policy make a return to criminalization of various practices not merely problematic as a matter of optimal deterrence, but also unconstitutional as a matter of law. The antitrust policy of today bears little resemblance to that of the earlier era of criminalization for a wider variety of antitrust violations. The first issue is one of time. It has been at least a generation since antitrust criminal cases have been brought for noncollusion based cases. The nature of antitrust violations is also different today. Antitrust criminal cases of the earlier era that included criminal enforcement for noncollusive activity were misdemeanors rather than felonies. Further, antitrust economics has pushed antitrust case law to its current state based on a goal of consumer welfare, which weighs the potential procompetitive benefit as a justification to pursue certain behavior. That is, behavior that was once per se illegal is now governed by a rule of reason that weighs both the pro- and anticompetitive effects regarding civil liability. An economically informed rule of reason makes the use of criminal sanctions problematic. These changes to antitrust policy in the past forty-plus years create the basis for a challenge to the reintroduction of criminal penalties for noncollusion antitrust cases. First, this Article introduces the criminal antitrust regime and places it in historical context. Then, the Article explores the transformation of antitrust policy starting from the 1970s, which shifted antitrust policy towards a singular efficiency based goal. This focus on economic effects has significant repercussions for criminal antitrust enforcement, as it limits the possible use of criminal sanctions for Sherman Act [section] 1 and [section] 2 violations as well as the Robinson-Patman Act. These limitations apply only in situations where there is no ambiguity that the restraints in question are clearly anticompetitive. In practice, this means that only express collusion is such a situation. Criminal enforcement of noncollusive antitrust activity that is per se illegal creates two potential constitutional law problems, which the next part of the Article explores. The first is a desuetude problem, and the second is a void for vagueness problem. As a matter of constitutional law, these two doctrines limit possible overreach by antitrust populists inclined to use existing law to "get tough" on antitrust violations. The final part offers concluding thoughts on how antitrust must promote consumer welfare and how law enforcement must bring cases that optimally deter anticompetitive conduct but must not bring cases that inhibit the sort of business risk taking that promotes consumer welfare.

Opposition to anticompetitive coordination once animated merger policy. But evidence now suggests that coordinated effects challenges are disfavored and rarely pursued. This stark change in enforcement is both puzzling and troubling. Coordinated effects challenges are antitrust law's best and often only opportunity to combat anticompetitive coordination in concentrated markets. Why are coordinated effects theories not being vigorously pursued? This Article exposes the decline in coordinated effects enforcement and the threat it poses to the maintenance of competitive markets. It does so in three steps. First, it surfaces the special role that coordinated effects enforcement plays in the antitrust framework. Second, it documents the decline in coordinated effects enforcement using multiple data sources. Third, it traces the causes of this decline to discrete changes in antitrust law and enforcement policy. After exposing the logical and economic errors in these changes, this Article proposes steps to restore coordinated effects enforcement to appropriate prominence. [ABSTRACT FROM AUTHOR]

Data has become an increasingly valuable asset. Numerous areas of law--including contracts, corporate law, intellectual property ("IP"), antitrust, tax, privacy, and bankruptcy--require parties and courts to determine the value of assets, including data. Unfortunately, data valuation has been hindered by a lack of clarity over what data is and why it is valuable. This lack of clarity also increases the chances of legal decisionmakers valuing data in inconsistent ways, which would create further confusion, inefficiencies, and opportunities for regulatory arbitrage. This Article proposes a unified framework for valuing data that will promote consistent valuations across fields of law. It begins by conceptualizing data as building blocks: It is of little value on its own. But when placed in skillful and creative hands, it can unlock choices for its holders--choices they would not otherwise have--that can generate tremendous profits. Thus, data constitutes what is known as a "real option." This Article shows how using real options to value data can significantly improve upon existing data valuation practices. [ABSTRACT FROM AUTHOR]

THE ATLANTIC DIVIDE IN ANTITRUST: AN EXAMINATION OF US AND EU COMPETITION POLICY. By Daniel J. Gifford and Robert T. Kudrle. Chicago and London: The University of Chicago Press. 2015. [...]

These rationales for integration suggest that there are some pro-competitive reasons for potential merger efficiencies that courts should weigh as part of their analysis. Some literature has tested these hypotheses [...]

Antitrust regulators around the world, including in the UK, have proposed changes to merger review policies that impact how acquisitions of start-ups would be investigated and evaluated. Such changes will likely lead to heightened scrutiny--and increased costs and longer reviews--for many acquisitions, including both horizontal and non-horizontal mergers. In evaluating the merits of such changes, it is critical to take into account the important role that exit via acquisition plays in providing incentives for venture capital (VC) investment and entrepreneurship. This article seeks to provide context for evaluating the effects of such proposed changes. First, it documents the links among VC, entrepreneurship, and innovation, and how exit via acquisition can foster dynamic innovation, one of the stated goals of the CMA. Second, it identifies additional consumer benefits derived from acquisitions of small companies by larger companies. Third, it describes VC investment in the UK, including the favourable, yet fragile, position that the UK holds as a VC hub for continental Europe. Finally, it documents the recent increased diversity in VC investment and entrepreneurship in the UK, which could be curbed by the proposed changes. [ABSTRACT FROM AUTHOR]

Partial ownership of stock in multiple competing firms is an important topic in both corporate and antitrust law. Until now, the discussion has focused on ownership. This Article shifts the discussion from a focus on common ownership to a focus on common control. No prior work has addressed the role of debtrelated corporate control in corporate governance and competition, but debtcontrol- based governance is a critical part of the corporate landscape. Further, various creditors can exert control over more than one company in the same industry without any ownership. These insights have been addressed in the corporate finance and bankruptcy law literatures, but they have not yet penetrated antitrust debates or policy. Applying such insights, this Article suggests that a fundamental change in antitrust policy is necessary to police against debt-control-based collusion. [ABSTRACT FROM AUTHOR]