ANTITRUST ENFORCEMENT and INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition

Total Page:16

File Type:pdf, Size:1020Kb

ANTITRUST ENFORCEMENT and INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition ISSUED BY THE U.S. DEPARTMENT OF JUSTICE AND THE FEDERAL TRADE COMMISSION APRIL 2007 ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition ISSUED BY THE U.S. DEPARTMENT OF JUSTICE AND THE FEDERAL TRADE COMMISSION APRIL 2007 This Report should be cited as: U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: PROMOTING INNOVATION AND COMPETITION (2007). This Report can be accessed electronically at: www.usdoj.gov/atr/public/hearings/ip/222655.pdf www.ftc.gov/reports/index.shtm TABLE OF CONTENTS INTRODUCTION ................................................................. 1 CHAPTER 1: THE STRATEGIC USE OF LICENSING: UNILATERAL REFUSALS TO LICENSE PATENTS ................................................. 15 I. Introduction ......................................................... 15 II. The Kodak and CSU Decisions .......................................... 16 A. The Basic Facts and Holdings of the Cases .................. 16 B. Panelist Views on Kodak .................................. 17 C. Panelist Views on CSU ................................... 18 D. Ambiguity as to the Scope of the Patent Grant .............. 19 III. Policy Issues Relating to Unilateral Refusals to License ................... 20 A. Should Antitrust Law Accord Special Treatment to Patents? .. 21 B. Should Market Power Be Presumed with Patents? ........... 22 C. If an Antitrust Violation Were Found, Would There Be Workable Remedies for Unconditional, Unilateral Refusals to License Patents? .............................. 22 D. What Would Be the Effect of Liability for Refusals to License Patents on Incentives to Innovate? .................. 23 E. Competitive Effects of Refusals to License Patents ........... 24 IV. Legal Analysis of Unilateral Refusals to License Patents ................... 25 A. Does Section 271(d)(4) of Title 35 of the U.S. Code Create an Immunity for Unilateral Refusals to License Patents? ...... 25 B. When Do Refusals to License Patents Violate the Antitrust Laws? ......................................... 27 V. Conclusion .......................................................... 31 CHAPTER 2: COMPETITION CONCERNS WHEN PATENTS ARE INCORPORATED INTO COLLABORATIVELY SET STANDARDS ....................... 33 I. Background and Introduction .......................................... 33 iii iv TABLE OF CONTENTS II. Hold Up in the Context of Joint Standard Setting ......................... 37 III. Factors Other Than SSO Rules That May Mitigate Hold Up ................ 40 IV. Current SSO Methods to Avoid or Mitigate Hold Up ...................... 42 A. Use of Disclosure Rules to Deter Hold Up .................. 42 1. Benefits and Costs of SSO Disclosure Policies ................................... 42 2. FTC Challenges to Hold Ups Based on the Failure to Disclose IP Rights ................. 43 B. Use of Licensing Rules to Deter Hold Up ................... 45 1. Use of RAND Licensing ..................... 46 2. Royalty-Free Licensing Standards ............ 47 V. Using Ex Ante Licensing Negotiations to Mitigate Hold Up ................ 49 A. Practical Reasons for the Lack of Ex Ante Licensing Negotiations ............................................ 50 B. Antitrust Concerns About Ex Ante Licensing Negotiations .... 50 1. Naked Restraints of Trade by Intellectual Property Holders or SSO Members ........... 50 2. Group Buying Power ....................... 52 VI. Agency Policy Conclusions About Antitrust Concerns Associated with Ex Ante Licensing Negotiations ........................................ 53 CHAPTER 3: ANTITRUST ANALYSIS OF PORTFOLIO CROSS-LICENSING AGREEMENTS AND PATENT POOLS ................................ 57 I. Introduction ......................................................... 57 II. Portfolio Cross Licenses .............................................. 59 A. Efficiencies ............................................. 59 B. Competitive Concerns ................................... 61 C. Analysis ............................................... 62 III. Patent Pools ......................................................... 64 A. Efficiencies ............................................. 64 B. Competitive Concerns ................................... 66 C. Existing Agency Guidance on Patent Pools ................. 66 1. U.S. Department of Justice Business Review Letters ............................. 68 2. The Summit-VISX Pool ..................... 73 D. Specific Issues of Competitive Concern ..................... 74 1. Substitutes Within a Patent Pool ............. 74 2. Exclusive and Nonexclusive Licensing ........ 78 3. Grantbacks ................................ 80 4. Access to Information ...................... 81 TABLE OF CONTENTS v 5. Royalties for the Pool’s Patents ............... 82 6. Requests for Partial-Pool Licenses ............ 83 IV. Conclusion .......................................................... 84 CHAPTER 4: VARIATIONS ON INTELLECTUAL PROPERTY LICENSING PRACTICES ............................................ 87 I. Introduction ......................................................... 87 II. Non-Assertion Clauses ................................................ 88 A. Efficiencies of Non-Assertion Clauses ...................... 89 B. Competitive Concerns Regarding Non-Assertion Clauses .... 90 III. Grantbacks .......................................................... 91 A. Efficiencies of Grantbacks ................................ 92 B. Competitive Concerns Associated with Grantbacks .......... 92 IV. Reach-Through Licensing Agreements .................................. 93 A. Efficiencies of Reach-Through Licensing Agreements ........ 94 B. Competitive Concerns About Reach-Through Licensing Agreements ................................... 95 V. Perspectives on Antitrust Analysis of Licensing Practices .................. 97 VI. The Agencies’ Competitive Concerns and Analyses ....................... 99 VII. Conclusion ......................................................... 102 CHAPTER 5: ANTITRUST ISSUES IN THE TYING AND BUNDLING OF INTELLECTUAL PROPERTY RIGHTS ............................... 103 I. Introduction ........................................................ 103 II. Legal Analyses of Tying and Bundling ................................ 105 III. Tying and Bundling Involving Intellectual Property ..................... 106 A. The Economics of Bundling Involving Intellectual Property .............................................. 107 B. Legal Issues Relevant to Intellectual Property Bundling ..... 108 C. Practical Issues Regarding Intellectual Property Bundling ... 111 D. Suggested Approaches to Improving the Law on Intellectual Property Bundling ........................... 112 IV. Conclusion ......................................................... 114 vi TABLE OF CONTENTS CHAPTER 6: COMPETITIVE ISSUES REGARDING PRACTICES THAT EXTEND THE MARKET POWER CONFERRED BY A PATENT BEYOND ITS STATUTORY TERM ................................... 115 I. Collecting Royalties Beyond the Statutory Term ......................... 116 II. Long Term Contracts Involving Exclusivity ............................. 119 III. Bundling Patents with Trade Secrets ................................... 120 IV. The Agencies’ Analysis .............................................. 122 APPENDICES A. Hearings Participants ................................................ 125 B. Hearings Submissions ............................................... 147 C. Public Comments ................................................... 161 D. Hearings Transcripts ................................................ 167 E. United States Code .................................................. 171 F. Cited Cases and Supporting Documents ................................ 179 G. Publications Cited ................................................... 187 INDEX ......................................................................... 199 ACKNOWLEDGMENTS ......................................................... 210 INTRODUCTION Over the past several decades, rights promote innovation by allowing antitrust enforcers and the courts have intellectual property owners to prevent come to recognize that intellectual others from appropriating much of the property laws and antitrust laws share value derived from their inventions or the same fundamental goals of enhancing original expressions. These rights also consumer welfare and promoting can facilitate the commercialization of innovation. This recognition signaled a these inventions or expressions and significant shift from the view that encourage public disclosure, thereby prevailed earlier in the twentieth century, enabling others to learn from the when the goals of antitrust and protected property. intellectual property law were viewed as incompatible: intellectual property law’s Antitrust laws, in turn, ensure that grant of exclusivity was seen as creating new proprietary technologies, products, monopolies that were in tension with and services are bought, sold, traded, and antitrust law’s attack on monopoly licensed in a competitive environment. In power. Such generalizations are today’s dynamic marketplace, new relegated to the past. Modern technological improvements are understanding of these two disciplines is constantly replacing those that came that intellectual property and antitrust before, as competitors are driven to laws work in tandem to bring
Recommended publications
  • The Rule of Law & FTC: Thesis & Antithesis? Some Proposals
    Volume 86 Issue 3 Dickinson Law Review - Volume 86, 1981-1982 3-1-1982 The Rule of Law & FTC: Thesis & Antithesis? Some Proposals John A. Maher Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation John A. Maher, The Rule of Law & FTC: Thesis & Antithesis? Some Proposals, 86 DICK. L. REV. 403 (1982). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol86/iss3/2 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. The Rule of Law & FTC: Thesis & Antithesis? Some Proposals John A. Maher* I. Introduction A. Recent Events December 17, 1980 is a remarkable date for those interested in either quality of government or, more particularly, evolution of the Federal Trade Commission's sense of the unfair.' On that day, the five Commissioners then in office2 purported to renounce Commis- sion reliance on what they apparently regarded as a non-exclusive substantive rule of decision concerning the content of their enabling 3 act's use of "unfair . .acts or practices." That renounced can be said to possess the cachet of Supreme Court approval by reason of a unanimous opinion in FTC.v. Sperry & Hutchinson Co.4 (S&H). * A.B. 1951, University of Notre Dame; LL.B. 1956, LL.M. (Trade Regulation) 1957, New York University; Professor, Dickinson School of Law. Professor Maher currently serves the Banking & Business Law Section of the Pennsylvania Bar Association as chairperson of its antitrust committee and as a member of its committee for reform and recodification of Penn- sylvania's corporation and partnership laws.
    [Show full text]
  • Amazon's Antitrust Paradox
    LINA M. KHAN Amazon’s Antitrust Paradox abstract. Amazon is the titan of twenty-first century commerce. In addition to being a re- tailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and ex- pand widely instead. Through this strategy, the company has positioned itself at the center of e- commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm’s structure and conduct pose anticompetitive concerns—yet it has escaped antitrust scrutiny. This Note argues that the current framework in antitrust—specifically its pegging competi- tion to “consumer welfare,” defined as short-term price effects—is unequipped to capture the ar- chitecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are height- ened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have re- warded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible.
    [Show full text]
  • Antitrust Status of Farmer Cooperatives
    USDA Antitrust Status of Farmer Cooperatives: United States Department of Agriculture The Story of the Capper- Rural Business- Volstead Act Cooperative Service Cooperative Information Report 59 Abstract The Capper-Volstead Act provides a limited exemption from antitrust liability for agricultural producers who market the products they produce on a cooperative basis. Without Capper-Volstead, farmers who agree among themselves on the pric es they'll accept for their products and other terms of trade would risk being held in violation of antitrust law. Even with the exemption, agricultural producers are not free to unduly enhance the prices they charge, consolidate with or collaborate in anticompetitive conduct with nonproducers, or engage in conduct with no legitimate business purpose that is intended to reduce competition. Keywords: cooperative, antitrust, Capper-Volstead Act, law ________________________________________ Antitrust Status of Farmer Cooperatives: The Story of the Capper-Volstead Act Donald A. Frederick Program Leader Law, Policy & Governance Rural Business-Cooperative Service U.S. Department of Agriculture Cooperative Information Report 59 September 2002 RBS publications and information are available on the Internet. The RBS w eb site is: http://www.rurdev.usda.gov/rbs Preface Antitrust law poses a special challenge to agricultural marketing associations. Certain conduct by independent business people-- agreeing on prices, terms of sale, and whom to sell to--violates the Sherman Act and other antitrust statutes. And these are the very types of collaborative activities that agricultural producers conduct through their marketing cooperatives. Since 1922, the Capper-Volstead Act has provided a limited antitrust exemption for agricultural marketing associations. Producers, through qualifying associations, can agree on prices and other terms of sale, select the extent of their joint marketing activity, agree on common marketing practices with other cooperatives, and achieve substantial market share and influence.
    [Show full text]
  • Caspar Weinberger and the Reagan Defense Buildup
    The University of Southern Mississippi The Aquila Digital Community Dissertations Fall 12-2013 Direct Responsibility: Caspar Weinberger and the Reagan Defense Buildup Robert Howard Wieland University of Southern Mississippi Follow this and additional works at: https://aquila.usm.edu/dissertations Part of the American Studies Commons, Military History Commons, Political History Commons, and the United States History Commons Recommended Citation Wieland, Robert Howard, "Direct Responsibility: Caspar Weinberger and the Reagan Defense Buildup" (2013). Dissertations. 218. https://aquila.usm.edu/dissertations/218 This Dissertation is brought to you for free and open access by The Aquila Digital Community. It has been accepted for inclusion in Dissertations by an authorized administrator of The Aquila Digital Community. For more information, please contact [email protected]. The University of Southern Mississippi DIRECT RESPONSIBILITY: CASPAR WEINBERGER AND THE REAGAN DEFENSE BUILDUP by Robert Howard Wieland Abstract of a Dissertation Submitted to the Graduate School Of The University of Southern Mississippi In Partial Fulfillment of the Requirements For the Degree of Doctor of Philosophy December 2013 ABSTRACT DIRECT RESPONSIBILITY: CASPAR WEINBERGER AND THE REAGAN DEFENSE BUILDUP by Robert Howard Wieland December 2013 This dissertation explores the life of Caspar Weinberger and explains why President Reagan chose him for Secretary of Defense. Weinberger, not a defense technocrat, managed a massive defense buildup of 1.5 trillion dollars over a four year period. A biographical approach to Weinberger illuminates Reagan’s selection, for in many ways Weinberger harkens back to an earlier type of defense manager more akin to Elihu Root than Robert McNamara; more a man of letters than technocrat.
    [Show full text]
  • Welfare, Achievement, and Self-Sacrifice
    WELFARE, ACHIEVEMENT, AND SELF-SACRIFICE BY DOUGLAS W. PORTMORE JOURNAL OF ETHICS & SOCIAL PHILOSOPHY VOL. 2, NO. 2 | SEPTEMBER 2007 URL: WWW.JESP.ORG COPYRIGHT © DOUGLAS W. PORTMORE 2007 JOURNAL OF ETHICS & SOCIAL PHILOSOPHY | VOL. 2, NO. 2 WELFARE, ACHIEVEMENT, AND SELF-SACRIFICE Douglas W. Portmore Welfare, Achievement, and Self-Sacrifice Douglas W. Portmore* ANY PHILOSOPHERS HOLD that the achievement of one’s goals can contribute to one’s welfare apart from whatever inde- pendent contributions that the objects of those goals, or the proc- M 1 esses by which they are achieved, make. Call this the Achievement View, and call those who accept it achievementists. Below, I argue that achievementists should accept both (a) that one factor that affects how much the achieve- ment of a goal contributes to one’s welfare is the amount that one has in- vested in that goal, and (b) that the amount that one has invested in a goal is a function of how much one has personally sacrificed for its sake, not a func- tion of how much effort one has put into achieving it. So I will, contrary to at least one achievementist (viz., Keller 2004, 36), be arguing against the view that the greater the amount of productive effort that goes into achieving a goal, the more its achievement contributes to one’s welfare. Furthermore, I argue that the reason that the achievement of those goals for which one has personally sacrificed matters more to one’s welfare is that, in general, the re- demption of one’s self-sacrifices in itself contributes to one’s welfare.
    [Show full text]
  • Academia and Law, 63-64 Administrative Law Judges (Aljs), 54, 86
    INDEX academia and law, 63-64 administrative law judges (ALJs), 54, 86, 153-54 advertising, 72 and children, 77 corrective, 52-53 industry study, 54-55 Joe Camel campaign, 167-68 Aleinikoff, T. Alexander, 184 American Bar Association Antitrust Law Section, 42,43,44,45, 93, 108-109, 138 Commission to Study the FTC, 42-50 second Kirkpatrick Commission Report, 84, 124 Anthony, Sheila, 163 AOL (America On Line), 140, 147-48 Areeda, Phillip E., 68, 71 Areen, Judith, 100, 101, 108, 184 Arnold & Porter, 30, 52, 60, 92, 178, 180, 182, 187 Ashenfeld, Orley, 143 Askanaga, Mary, 123 Association of American Law Schools (AALS), 67 automobile industry, 75-76 Baer, William J., 89-90, 124, 135, 160, 171 Baker, Jonathan, 124 Bar Association of the District of Columbia, 93-94 Bartel, Paul, 81 Bator, Paul, 64, 68, 70, 71 Baxter, William, 91 Beard, Dita, 87 Beechnut/Heinz, 142, 145-46 Bernstein, Jodie, 51-52, 124, 128, 133, 135, 139, 154, 165, 167, 171 Bar Association of the District of Columbia, 93, 94 and Food and Drug Administration (FDA), 173 identity theft measures, 176-77 review process changes, 169-70 Bernstein, Lewis, 28 Bingaman, Anne, 116-17,121, 137 Black, Charles, 19 Blake, Harlan, 39,40,43, 62 Boast, Molly, 171 Boies, David, 125, 156, 157 -AI- Bok, Betty, 43 Bork, Robert, 3 8, 120 BP/Arco, 148-49 Brandeis, Louis D., 125 Brennan, William J., 5, 100 Breyer, Stephen, 60, 68, 71, 152 Brown, Charles, 157 Browne, John, 148 Buc, Nancy, 5 1,56 Bureau of Consumer Protection. See Federal Trade Commission Burson, Charles, 119 Bush, George, 121, 179 Bush, George W., 163, 179, 180 Califano, Joseph, 33,61,68, 100, 106 Calkins, Stephen, 124 cartels, 128-30 Carter, James E.
    [Show full text]
  • In the United States Court of Appeals for the Eleventh
    Case: 15-14160 Date Filed: 03/04/2019 Page: 1 of 74 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-14160 ________________________ D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06012-GAP-TBS QUALITY AUTO PAINTING CENTER OF ROSELLE, INC., Traded as Prestige Auto Body, Plaintiff-Appellant, versus STATE FARM INDEMNITY COMPANY, STATE FARM GUARANTY INSURANCE COMPANY, et al., Defendants-Appellees. ________________________ No. 15-14162 ________________________ D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06013-GAP-TBS ULTIMATE COLLISION REPAIR, INC., Case: 15-14160 Date Filed: 03/04/2019 Page: 2 of 74 Plaintiff-Appellant, versus STATE FARM INDEMNITY COMPANY, STATE FARM GUARANTY INSURANCE COMPANY, et al., Defendants-Appellees. ________________________ No. 15-14178 ________________________ D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:14-cv-06018-GAP-TBS CAMPBELL COUNTY AUTO BODY, INC., Plaintiff-Appellant, versus STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants-Appellees. ________________________ No. 15-14179 ________________________ D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 2 Case: 15-14160 Date Filed: 03/04/2019 Page: 3 of 74 6:14-cv-06019-GAP-TBS LEE PAPPAS BODY SHOP, INC., DAVID C. BROSIUS, d.b.a. Martins Auto Body Works, Inc., ART WALKER AUTO SERVICES, INC., WHITEFORD COLLISION AND REFINISHING, INC., Plaintiffs-Appellants, versus STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al, Defendants-Appellees. ________________________ No. 15-14180 ________________________ D.C. Docket Nos. 6:14-md-02557-GAP-TBS, 6:15-cv-06022-GAP-TBS CONCORD AUTO BODY, INC., Plaintiff-Appellant, versus STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, STATE FARM FIRE & CASUALTY COMPANY, et al, 3 Case: 15-14160 Date Filed: 03/04/2019 Page: 4 of 74 Defendants-Appellees.
    [Show full text]
  • War and Sacrifice in the Post-9/11 Era
    Social & Demographic Trends October 5, 2011 The Military-Civilian Gap War and Sacrifice in the Post-9/11 Era FOR FURTHER INFORMATION, CONTACT Pew Social & Demographic Trends Tel (202) 419-4372 1615 L St., N.W., Suite 700 Washington, D.C. 20036 www.pewsocialtrends.org PREFACE America’s post-9/11 wars in Afghanistan and Iraq are unique. Never before has this nation been engaged in conflicts for so long. And never before has it waged sustained warfare with so small a share of its population carrying the fight. This report sets out to explore a series of questions that arise from these historical anomalies. It does so on the strength of two nationwide surveys the Pew Research Center conducted in the late summer of 2011, as the 10th anniversary of the start of the war in Afghanistan approached. One survey was conducted among a nationally representative sample of 1,853 military veterans, including 712 who served on active duty in the period after the Sept. 11, 2001 terrorist attacks. The other was among a nationally representative sample of 2,003 American adults. The report compares and contrasts the attitudes of post-9/11 veterans, pre-9/11 veterans and the general public on a wide range of matters, including sacrifice; burden sharing; patriotism; the worth of the wars in Afghanistan and Iraq; the efficiency of the military and the effectiveness of modern military tactics; the best way to fight terrorism; the desirability of a return of the military draft; the nature of America’s place in the world; and the gaps in understanding between the military and civilians.
    [Show full text]
  • Buyer Power: Is Monopsony the New Monopoly?
    COVER STORIES Antitrust , Vol. 33, No. 2, Spring 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Buyer Power: Is Monopsony the New Monopoly? BY DEBBIE FEINSTEIN AND ALBERT TENG OR A NUMBER OF YEARS, exists—or only when it can also be shown to harm consumer commentators have debated whether the United welfare; (2) historical case law on monopsony; (3) recent States has a monopoly problem. But as part of the cases involving monopsony issues; and (4) counseling con - recent conversation over the direction of antitrust siderations for monopsony issues. It remains to be seen law and the continued appropriateness of the con - whether we will see significantly increased enforcement Fsumer welfare standard, the debate has turned to whether the against buyer-side agreements and mergers that affect buyer antitrust agencies are paying enough attention to monopsony power and whether such enforcement will be successful, but issues. 1 A concept that appears more in textbooks than in case what is clear is that the antitrust enforcement agencies will be law has suddenly become mainstream and practitioners exploring the depth and reach of these theories and clients should be aware of developments when they counsel clients must be prepared for investigations and enforcement actions on issues involving supply-side concerns. implicating these issues. This topic is not going anywhere any time soon.
    [Show full text]
  • Aztec Human Sacrifice
    EIGHT AZTEC HUMAN SACRIFICE ALFREDO LOPÉZ AUSTIN, UNIVERSIDAD NACIONAL AUTÓNOMA DE MÉXICO, ANO LEONARDO LÓPEZ LUJÁN, INSTITUTO NACIONAL DE ANTROPOLOGíA E HISTORIA Stereotypes are persistent ideas of reality generally accepted by a social group. In many cases, they are conceptions that simplify and even caricaturize phenomena of a complex nature. When applied to societies or cultures, they l11ayinclude value judgments that are true or false, specific or ambiguous. If the stereotype refers to orie's own tradition, it emphasizes the positive and the virtuous, and it tends to praise: The Greeks are recalled as philosophers and the Romans as great builders. On the other hand, if the stereotype refers to another tradition , it stresses the negative, the faulty, and it tends to denigrate: For many, Sicilians naturally belong to the Mafia, Pygrnies are cannibals, and the Aztecs were cruel sacrificers. As we will see, many lines of evidence confirm that hurnan sacrifice was one the most deeply rooted religious traditions of the Aztecs. However, it is clear that the Aztecs were not the only ancient people that carried out massacres in honor of their gods, and there is insufficient quantitative inforrnation to determine whether the Aztecs were the people who practiced hu- man sacrifice 1110stoften. Indeed, sacred texts, literary works, historie documents, and especially evidence contributed by archaeology and physical anthropology, enable religious historians to determine that the practice of hurnan sacrifice was common in most parts of the ancient world. For exarnple, evidence of sacrifice and can n iba lism has emerged in l11any parts ofEurope, dating to the Neolithic and Bronze Ages.
    [Show full text]
  • Panel Consisting of Robert Pitofsky, Professor of Law, Georgetown University Law Center, Washing- Ton, Dc; Cass R
    572 PANEL CONSISTING OF ROBERT PITOFSKY, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHING- TON, DC; CASS R. SUNSTEIN, PROFESSOR, UNIVERSITY OF CHICAGO LAW SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, CHICAGO, IL; AND MARTHA MATTHEWS, STAFF AT- TORNEY, NATIONAL CENTER FOR YOUTH LAW, AND FORMER LAW CLERK TO JUDGE STEPHEN G. BREYER, SAN FRAN- CISCO, CA STATEMENT OF ROBERT PITOFSKY Mr. PITOFSKY. Thank you, Senator Kennedy. It is a privilege to be invited to testify in these important hearings. I believe that Steve Breyer from all points of view is an outstand- ing nominee to the Supreme Court. I will concentrate today, how- ever, on that part of his record dealing with economic regulation and particularly his record in antitrust. That record has been sub- ject to very thoughtful questions by Senator Metzenbaum and oth- ers on the committee, and subject to some criticism by witnesses who testified a little earlier today. I recognize two themes in the criticism. One is sort of a numbers game approach that Judge Breyer is supposed to have decided an unusual number of cases in favor of defendants in antitrust cases, and then there has been some criticism of specific decisions. As far as the numbers game is concerned, first of all, if people are going to use the numbers game approach, they ought to get their numbers right. The claim is—I nave heard it repeatedly today—that he decided 16 consecutive cases against the defendant. Actually, the score was 14 to 2, and I cited two cases for the plain- tiff in my prepared testimony.
    [Show full text]
  • Antitrust and Deregulation Abstract
    HOWARD SHELANSKI Antitrust and Deregulation abstract. Because regulation works alongside antitrust law to govern market structure and economic conduct in the United States, deregulatory cycles can create gaps in competition enforce- ment. Antitrust is sometimes portrayed as just another form of government intervention that a deregulatory administration should also diminish. This Feature argues that policy makers should resist that political logic. Instead, antitrust should become stronger as regulation becomes weaker. Antitrust as a countercyclical force to deregulation will most directly help to protect consumers from enforcement gaps that result as competition-related rules recede. But antitrust enforcement in deregulating markets can also help to demonstrate where antitrust can govern markets more effectively and efficiently than regulation; it canovide pr the federal courts with an opportunity to clarify recent Supreme Court decisions on the boundary between antitrust and regulation; and it can better inform ongoing policy debates about the effectiveness of antitrust by providing a more accurate view of what antitrust enforcement can accomplish with its existing legal and analytic framework. Not only is each of these benefits of countercyclical antitrust enforcement important in its own right, but together they can lead to better policy choices between antitrust and regula- tory solutions as political cycles change over time. author. Professor of Law, Georgetown University; Partner, Davis Polk & Wardwell LLP. The author previously served as Administrator of the White House Office of Information and Regula- tory Affairs and as Director of the Federal Trade Commission’s Bureau of Economics. The author is grateful to Jonathan Sallet, Scott Hemphill, Catherine Waddams, Erik Herron, workshop par- ticipants at the University of East Anglia, and participants in the conference on “Unlocking the Promise of Antitrust Enforcement” at American University for helpful comments.
    [Show full text]