Antitrust deals with the area of law concerned with maintaining competition in private markets. Antitrust law courses study the law and economics of monopolies and cartels, including the potential benefits and harms of these market structures. Antitrust evaluates business conduct that may lead to monopoly and cartel outcomes, and the statutes, case law and other governmental policies that attempt to maintain competitive market structures and competitive conduct.
The study of antitrust law at the Law Center begins with the basic Antitrust Law course. Two variants of this course are offered, a three-credit Antitrust Law course and a four-credit Antitrust Economics and Law course. The four-credit course is expanded to permit additional analysis of the economic aspects of the business conduct and law, and it also places greater emphasis on economic materials and an economic approach to antitrust. (Students may only take one of the variants.) In addition to the basic course, a variety of advanced antitrust courses and seminars are offered. Some of these advanced courses delve more deeply into narrow areas such as global competition, selected antitrust issues such as mergers and acquisitions, or particular economic sectors such as telecommunications, sports and health care. The Advanced Antitrust Economics and Law Seminar analyzes cutting edge antitrust issues from an economics perspective, and students write potentially publishable papers on such topics. The Advanced Antitrust Seminar: A Comparative Look at EU and US Competition Law introduces students to the most significant current differences in approach and analysis between EU and US enforcement.
Because of its focus on the mechanics and role of competition in a modern free market economy, the issues studied in antitrust law are useful for understanding a wide array of business conduct. In addition to antitrust, many other courses in this course cluster analyze the law and economics of economic regulation of free markets and competition. Pricing and other aspects of competition in certain markets, especially those with monopoly structures such as public utilities, are regulated more directly and intensively by administrative agencies rather than simply by general antitrust rules. In addition, there is an important nexus between antitrust and intellectual property. Intellectual property law awards limited monopolies to reward innovators and intellectual property law and antitrust law sometimes may be in apparent conflict. The analysis of economic incentives and contractual relations in Economic Reasoning for Lawyers and Analytical Methods also has important applications to antitrust.
J.D. Seminar (cross-listed) | 3 credit hours
This seminar examines recent developments in the economic approach to antitrust law and practice. Topics include issues at the frontier in various areas, including some or all of the following: decision-theoretic approach to antitrust, partial ownership acquisitions, advanced merger analysis and policy, buyer power, conditional pricing practices, intellectual property/antitrust interface, pay-for-delay agreements, standard setting, abuse of dominance, and behavioral economics. Students must complete a 2 or 3 credit paper and weekly assignments on the topic for the week. Some time is spent throughout the term on the student papers. This is an excellent course for students preparing for a career on antitrust. There will be written assignments that must be submitted for each class. Attendance is also required.
Prerequisite: Antitrust Law (or the equivalent Antitrust Economics and Law).
J.D. Seminar (cross-listed) | 2 credit hours
Current antitrust practice, in government, corporations and firms, frequently involves the young lawyer in matters with implications in a European Union Member State as well as the US. Clients routinely request preliminary identification of potential foreign risks from their US antitrust counsel. Much of EU competition law has been adapted from and developed in harmony with US antitrust law. Over a substantial range of applications (mergers, distribution systems, competitor coordination, monopoly), however, EU law diverges markedly from US rules, standards and consequences. This divergence stems largely from enduring differences between fundamental policy objectives underlying the two systems of competition regulation.
The goal of this course is to provide students who have completed the first antitrust course and who may be interested in careers in antitrust with an overview and awareness of the most significant current differences in approach and analysis between EU and US enforcement. Although not a comprehensive study of EU competition law, the course should enable students to spot treacherous areas of difference, advise clients of potential risks, and collaborate effectively with foreign team members on multijurisdictional matters. The course will introduce students to contemporary issues that would be rewarding subjects for further study and for seminar papers.
The course provides an overview of the major topics addressed by EU competition law, explaining the fundamental principles underlying the origin and development of the EU policy and highlighting substantive and procedural departures from US law. The course will provide an introduction to the elements of the principal EU prohibitions. The course will illustrate the fundamental differences between the EU and US laws through in-depth comparisons of selective EU and US court opinions involving applications to similar conduct. The course reading will consist primarily of relevant excerpts of EU Treaty provisions; European Commission decisions, regulations and guidelines; and European Court of Justice decisions. I propose using a comprehensive textbook which conveniently contains these excerpts. (Jones & Sufrin, EU Competition Law (4th ed., Oxford)). Students will find the text of the book informative and will find references and citations to the primary materials available on official websites and in official hard-copy publications. Comprehensive lecture notes for each major topic will be distributed to aid class discussion and paper research.
Prerequisite: Antitrust Law (or Antitrust Economics and Law).
J.D. Course (cross-listed) | 4 credit hours
This course covers the major federal legislation and doctrine in the field of antitrust law with a primary focus upon governmental efforts to promote competition. Emphasis is placed upon the growing role of economic analysis and trends in judicial interpretation relating to the coordination, monopolies, mergers and joint ventures, as well as evolving legal standards, including the role of decision theory in setting legal standards.
This version of basic antitrust places greater emphasis on the tools of economic analysis that have taken on growing importance in antitrust as well as controversies between Chicago School and post-Chicago economic approaches. There is no economics prerequisite. The necessary economic tools will be developed in the course. Students should be prepared to master economic as well as legal materials. There will be written assignments that must be submitted for each class. Attendance is also required.
Recommended: Some economics background is helpful, but not required.
Mutually Excluded Courses: Students may not receive credit for both this course and Antitrust Law.
Note: Laptops may not be used during class sessions.
J.D. Seminar | 2 credit hours
The Business Law Scholars Program is designed for students who will be working in a business law-related internship/job over the Summer of 2016 and who wish to simultaneously develop their expertise and skills in this area through a related course. It is open to students who have completed their first year.
SEMINAR: The Business Law Scholars course will be taught by Professor Andrew J. Sherman, a partner in the Washington office of Jones Day. Through the course, Business Law Scholars will develop skills in strategic planning, corporate finance, human capital and governance, capital formation, management and communication, the protection and harvesting of intangible assets, business transactions, and effective client management. Students will be expected to maintain weekly journals of their field experiences and be prepared to discuss these experiences in a facilitated discussion lead by Professor Sherman. The quality and depth of the journal entries and experiential learnings are a critical part of the overall grade for the course. The course will meet on Wednesdays throughout the eight-week summer session, from 5:45 p.m. - 9:05 p.m. Business Law Scholars will also have the opportunity to participate in professional networking events through the course.
FIELDWORK: Business Law Scholars must find their own business law-related internships/jobs at law firms, associations, government agencies, non-profits, in-house departments, or other business law-related positions and commit to working 30 hours/week. For the purpose of this program, the definition of business law is broad; we ask that applicants explain how their work relates to business law in the application (see below). Students must be supervised by a lawyer.
APPLICATION PROCESS: To apply to be a Business Law Scholar, please send the following documents to Rachel Taylor, Assistant Dean of Experiential Education (email@example.com)by 9:00 a.m. on Friday, April 1, 2016:
- A resume
- Responses to the following questions:
- Where is your placement?
- Who will be supervising you? Is this person an attorney? What is their position within the office?
- What will your responsibilities be? Will your work be legal in nature?
- How many hours/week will you be working?
- How will your work relate to business law?
- Why are you interested in taking this course?
Any student who has not secured a placement by the April 1 deadline may still apply and should discuss the status of their potential fieldwork options in their application materials. Seats will be awarded first to those students who have placements lined up; if space permits, however, others may be admitted as placements are subsequently confirmed.
All Business Law Scholars must attend the seminar sessions in-person. It is not possible to participate in this program remotely.
All Business Law Scholars will receive two credits for the course. Those Scholars who work for a non-profit business entity and are not being paid may elect to earn three additional pass/fail credits for their fieldwork.
Mutually Excluded Courses: Students may not receive credit for this course and for the program D.C. Advantage: Business and Its Regulation.Students may not concurrently take this course and an externship.
J.D. Seminar (cross-listed) | 2 credit hours
Franchised businesses account for approximately 40 percent of retail sales in the U.S., more than a trillion dollars a year, and have about 10 million employees. Franchising is growing: a new franchise opens in the U.S. roughly every eight minutes of every working day. Although most people may associate franchising with “fast food restaurants,” franchising is prevalent in many areas of the economy, including automotive, hotel, various retail establishments, and numerous business services, among others. With the explosive growth of franchising, which really began in the 1950s, has come the development of franchise law as a separate discipline during the past 60 or so years and significant growth in the number of lawyers who practice in this field. Thus, franchising and the evolving practice of franchise law have a great practical impact on the U.S. and global economy.
Franchise law is a combination of contract and statutory law and is heavily influenced by trademark, antitrust and other areas of business law. Franchise agreements tend to be lengthy multi-year trademark licensing agreements. Because franchising involves distribution of goods and services, antitrust and other competition law considerations must be taken into account. Franchising is also regulated at both the federal and state level. Franchise sales are regulated by state and federal disclosure requirements, analogous to SEC requirements. Automotive, petroleum and certain other franchise relationships are regulated by specific statutes, while various states generally regulate aspects of the franchise relationship, such as termination or renewal of the relationship. There is a substantial amount of litigation in franchising, involving not only disputes between franchisors and franchisees, but also consumers and others. Many common law contract concepts, such as the “implied covenant of good faith and fair dealing,” have evolved and continue to evolve in the context of franchise law. Franchising is also growing rapidly outside the U.S.; accordingly, a variety of laws and regulations of other countries are relevant.
This course will cover the legal and practical business basics of franchising, including, structuring of the franchise relationship and the analysis of franchise agreements; the sales process and disclosure requirements; the relationship of franchising, employment, trademark and antitrust law; contract and other common law concepts that affect the franchise relationship; statutes regulating the franchise relationship at the state and federal level; automobile, petroleum and international franchising; and franchise-related litigation. Students will be evaluated on the basis of a paper and class participation, including mock negotiations at the end of the semester.
Prerequisite: Contracts (or Bargain, Exchange, and Liability) or, for foreign-educated LL.M. students, Foundations of American Law, Introduction to U.S. Legal Systems or a Contracts equivalent course from the home country.
LL.M Seminar (cross-listed) | 2 credit hours
This seminar will examine the development of competition laws around the world, differences in substantive standards among the major enforcement jurisdictions, the possible consequences of those differences, and the means to address them. We will start with a basic understanding of U.S. and EC competition principles, and then compare and contrast these with the principles applied in developing and transition economies, such as China, India, and South Africa. Particular emphasis will be on current issues and trends, multi-jurisdictional merger control, and regulation of dominant firm conduct. We will also consider the role of competition policy in economic and political development generally.
Prerequisite: for J.D. students: Antitrust Law or Antitrust Economics and Law. It is recommended that LL.M students have some previous coursework or work experience in competition law in the U.S. or another jurisdiction.
J.D. Seminar (cross-listed) | 2 credit hours
Antitrust is dynamic. In regulating business strategy, competition law is only as effective as its understanding of each industry’s idiosyncrasies. Novel business practices reflect changing technologies, market conditions, and strategies. Antitrust lawyers do not simply master doctrine. Fluent in the basic principles of antitrust law and economics, they understand industry conditions and the enforcement agencies’ agendas. Above all, they stay abreast of cutting-edge developments in the law.
This seminar bestows that understanding. We will discuss today’s most hotly debated antitrust questions, explore how foreign jurisdictions’ competition laws and enforcement ideals deviate from U.S. practice, and delve into the industry-specific issues that arise in fields ranging from healthcare to wireless technology.
Major points of focus include the evolving relationship between antitrust law and intellectual-property rights. We shall discuss post-Actavis issues in the pay-for-delay space, including no-authorized-generic promises by pioneer-drug manufacturers and whether the continuation of infringement litigation immunizes a reverse payment. Outside of the life sciences, urgent questions involve antitrust limits on IP aggregation by patent-assertion entities and practicing firms. Further, when does a “privateering” agreement between a practicing entity and a PAE implicate competition law? Does the owner of a standard-essential patent violate antitrust law in seeking to enjoin a technology user despite its prior assurance to license on reasonable and nondiscriminatory terms? We shall also address antitrust limits on patent licensing and refusals to deal. Agency guidelines overseas, such as in China, and enforcement actions in Asia more broadly hint at the direction of international antitrust in this area.
In the larger field of antitrust and technology, some commentators argue that big data and privacy may implicate competition policy. In 2016, Germany’s Federal Cartel Office accused Facebook of abusing its dominance based on privacy and big-data theories. Do those allegations hold water? A recurring problem in antitrust, which has emerged anew in the pharmaceutical industry, is predatory innovation. A separate development goes to the nature of actionable conspiracies where the lines between vertical and horizontal agreements become blurred. The Apple e-Books saga, which came to an end in March 2016 when the Supreme Court denied cert., has important repercussions for the law in this space. We shall also address the ongoing debate about the reach of Section 5 of the FTC Act, which allows the FTC to reach beyond the Sherman Act to condemn unfair methods of competition. The FTC’s controversial 2015 statement of enforcement principles on Section 5 features here, and we shall ask whether it makes sense that the Justice Department and FTC can subject firms to distinct liability standards. We shall touch on pending legislation, the SMARTER Act, which touches upon those issues. A critical antitrust issue that remains unresolved is the scope of Noerr-Pennington immunity. Finally, we will discuss contemporary issues in healthcare-merger oversight.
Recommended: Prior or concurrent enrollment in a basic antitrust course.
J.D. Seminar (cross-listed) | 2-3 credit hours
Our major infrastructural industries—electricity, gas, telecommunications, transportation and water—were historically controlled by monopolies. Introducing competition into these industries, an effort largely begun in the 1970s and continuing to this day, has been a struggle. Numerous battles before legislative bodies, regulatory agencies and courts, at the state and federal levels, has produced a distinct body of law. That body of law—the law of introducing competition into historically monopolistic industries—is the subject of this course.
Regardless of the industry or era, the regulation of infrastructural monopolies and their competitors has had five common elements: its mission (to align utility performance with the public interest); its legal principles (ranging from the state law on exclusive monopoly franchise to federal constitutional protection of shareholder investment); policy flexibility (accommodating multiple market structures—from monopolies to competition; and public purposes—from reliability to environmental accountability); reliance on multiple professions (law, economics, finance, accounting, management, engineering and politics); and formal administrative procedures, such as adjudication and rulemaking.
Today, political challenges are causing policymakers to stretch regulation's core legal principles. Four examples of these challenges are: climate change (e.g., To what extent should we make utilities and their customers responsible for "greening" energy production and consumption?); universal service (e.g., Should we bring broadband to every home, and at whose cost?); privacy (How do regulators induce personal changes in energy consumption while protecting the related data from public exposure?); and protection of our infrastructure from hackers, terrorists and natural catastrophes.
Complicating these political challenges are two sources of constant tension: ideology (e.g., private vs. public ownership, government intervention vs. "free market"); and state federal relations (e.g., Which aspects of utility service are "national," requiring uniformity, and which are "local," warranting state experimentation?).
In this field—in which there are many jobs as baby boomers hired in the 1970s retire—regulatory lawyers play varied roles. They advise clients who are suppliers or customers of regulated services, represent parties before regulatory tribunals, advise those tribunals or their legislative overseers, and challenge or defend those tribunals on judicial review. Using Georgetown's Zoom platform, students will have opportunities to interact with practitioners playing each of these roles.
J.D. Practicum | 5 credit hours
This course addresses regulatory efforts to bring competition to markets historically dominated by regulated monopolies, particularly in the electricity, gas, telecommunications and local transportation industries. Students will participate in a two hour/week seminar and carry out roughly 15 hours/week of project work for an outside client (usually a regulatory agency), under the direction of the course professor.
SEMINAR: In the field of public utility regulation, lawyers operate at the intersection of multiple professions (economics, finance, accounting, management, engineering and politics); jurisdictions (50 states and several federal agencies); and ideologies (e.g., private vs. public ownership, government intervention vs. "free market"). Regardless of the industry or era, public utility regulation has three common elements: its mission (to align corporate behavior with the public interest), its body of law (ranging from state law on monopoly franchises to federal constitutional protection of shareholder investment), and its flexibility (accommodating monopolistic and competitive market structures).
Today's policymakers are stretching traditional public utility law to address frontier problems, such as climate change (Should we require utilities and their customers to reduce and "green" energy production and consumption?); universal service (Should we bring broadband to every home?); homeland security (How vulnerable is utility infrastructure?); and privacy (Can regulators induces changes in personal energy consumption without expose personal consumption data?). A constant is state-federal tension over jurisdiction (e.g., Which aspects of utility service are "national," requiring uniformity; and which are "local," warranting state experimentation?). The public utility field employs thousands of lawyers in diverse roles.
The seminar component will cover (a) the backbone law (state and federal enabling statutes, constitutional law, antitrust law, contract and tort law, administrative law); and (b) the array of formal and informal procedures (notices of inquiry, rulemakings, contested cases, deliberative decision-making, appellate review) available to decision-makers and parties seeking to influence them.
PROJECT-WORK: Each student will work with a senior decision-maker or advisor within a state or federal regulatory agency, or a public interest group, to solve a frontier policy problem in utility regulation. Past projects have involved electric vehicles, solar energy deployment, broadband investment, revocation of public utility franchises, data privacy, wireline telephone rate structures, and service quality standards in a developing country’s natural gas industry. Besides researching and solving substantive issues for the client, student papers and class discussions will address the lawyer's role in (a) integrating multiple professional disciplines; (b) maneuvering within multiple jurisdictions and fora; and (c) assessing and improving regulatory agencies' performance.
Prerequisite: J.D. students must complete the required first-year program prior to enrolling in this course (part-time and interdivisional transfer students may enroll prior to completing Criminal Justice, Property, or their first-year elective).
Mutually Excluded Courses: Students may not concurrently enroll in this practicum course and a clinic or another practicum course. Students may concurrently enroll in this practicum course and an externship.
Note: This practicum course is open to LL.M. students, space permitting. Interested LL.M. students should email Louis Fine (firstname.lastname@example.org) to request admission.
This practicum course is suitable for evening students who can commit to attending the weekly seminar and participating in 15 hours of project work a week. The project work does not need to be completed during business hours.
This is a 5 credit course. 2 credits will be awarded for the 2-hour weekly seminar and 3 credits for approximately 15 hours of project work per week, for a minimum of 11 weeks. Both the seminar portion and the project portion will be graded. (Note: Students’ work on the final paper – which students will submit to the client – will count toward the 15 hours per week obligation. Further, the 15 hours per week is an average, not a precise weekly requirement, and some weeks the hours may be slightly more or less.)
Students who enroll in this course will be automatically enrolled in both the seminar and project components and may not take either component separately. After Add/Drop, a student who wishes to withdraw from a practicum course must obtain permission from the faculty member and the Assistant Dean for Experiential Education. The Assistant Dean will grant such withdrawal requests only when remaining enrolled in the practicum would cause significant hardship for the student. A student who is granted permission to withdraw will be withdrawn from both the seminar and project components.
Default attendance rule for all practicum courses (unless the professor indicates otherwise): Regular and punctual attendance is required at all practicum seminars and fieldwork placements. Students in project-based practicum courses are similarly required to devote the requisite number of hours to their project. If a student must miss seminar, fieldwork, or project work, he or she must speak to the professor as soon as possible to discuss the absence. Unless the professor indicates otherwise, a student with more than one unexcused absence from the practicum seminar (out of 13 total seminar sessions), or one week of unexcused absences from the fieldwork or project work (out of a total of 11 weeks of fieldwork or project work), may receive a lower grade or, at the professor’s discretion, may be withdrawn from the practicum course.