State action antitrust immunity for public hospitals: it depends on what you mean by "foreseeable"

The Supreme Court's refusal to hear an appeal from the Fifth Circuit's ruling on the application of state action antitrust immunity doctrine leaves a split in the circuits as to the proper test to apply to determine antitrust immunity for public hospitals. The circuits have either adopted a "foreseeable conduct from state policy" approach or a "policy from foreseeable conduct" approach. This Article analyzes the approaches and demonstrates that the "foreseeable conduct from state policy" approach is the better of the two methods.     

Contesting anticompetitive actions taken in the name of the state: state action immunity and health care markets

The so-called state action doctrine is a judicially created formula for resolving conflicts between federal antitrust policy and state policies that seem to authorize conduct that antitrust law would prohibit. Against the background of recent commentaries by the federal antitrust agencies, this article reviews the doctrine and discusses its application in the health care sector, focusing on the ability of states to immunize anticompetitive actions by state licensing and regulatory boards, hospital medical staffs, and public hospitals, as well as anticompetitive mergers and agreements. Although states are free, as sovereign governments, to restrict competition, the state action doctrine requires that "the state itself" make the decision to do so. Partly on the basis of problems in the political environment, the article criticizes courts for using a mere "foreseeability" test to decide whether a state legislature sufficiently authorized competitors to act in contravention of clear federal policy: "Few things are more foreseeable than that a trade or profession empowered to regulate itself will produce anticompetitive regulations."     

Antitrust, health care quality, and the courts

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.     

Managing medical staff disability issues: liability of private hospitals under ADA Titles I and III

This Article examines the extent to which private hospital are liable for discrimination against medical staff members with disabilities, under the Americans with Disabilities Act ("ADA"). Specifically, the discussion focuses on the ways in which Title I, covering employment relationships, and Title III, covering places of public accommodation, apply to hospitals and their medical staff physicians. With respect to Title I, the author focuses on possible liability with respect to independent contractor physicians who have staff privileges at a hospital. The focus with respect to Title III involves claims filed by physicians against hospitals as places of public accommodation. The author concludes that the courts have applied the ADA in a manner broader than intended by Congress, and that private hospitals should assume that both Title I and Title III are applicable to staff privilege decisions. Therefore, any action that adversely affects a disabled physician should be supported by well-documented, objective evidence of a nondiscriminatory reason for that action.     

Dagher redux: searching for the missing pieces

The most relevant question for any joint venture is, when does the relationship become a jointventure and not simply a price-fixing cartel? With respect to this question, this Article juxtaposes Texaco, Inc. v. Dagher, 126 S. Ct. 1276 (2006), against years of contrary precedent. In Dagher, the Court altered the seemingly settled foundation of antitrust law by changing its view on past holdings and abandoning the ancillary effects doctrine. The Article provides an outline of key holdings prior to Dagher, as well as a discussion of the issues that can arise as joint ventures are formed. Additionally, the authors examine how the decision altered the foundation of joint venture law in the United States. In particular, the Article exposes several important antitrust concerns relating to joint ventures that the Supreme Court did not address in Dagher. Perhaps the most perplexing issue of Dagher is whether the venture at issue would have survived analysis under the Federal Trade Commission's "continuum" approach.     

The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition

A World Trade Organization (WTO) dispute panel has decided theWTO’s first antitrust case. It resolved the matter infavour of the United States’ claim that Mexico had anticompetitivelyfacilitated exploitative prices and a cartel that raised theprice of terminating cross-border telephone calls in Mexicoand thereby harmed trade and competition. The case is Mexico– Measures Affecting Telecommunications Services (April2004) (‘the Mexican telecom case’). This essay arguesthat if the WTO’s antitrust clause was in fact triggered(which is a point of contention), Mexico’s conduct violatedits obligations. Furthermore, it argues that the GATS antitrustobligation in the telecommunications sector should be acknowledgedas occupying an important place at the intersection of trade,competition and industrial policies. Antitrust law is the otherside of the coin of liberal trade law. Antitrust law opens marketsby prohibiting private and other commercial restraints, whiletrade law opens markets by prohibiting public restraints. BeforeMexican telecom, no legal discipline was regarded as copiousor flexible enough to address combined public and private restraints.In particular, nations were allowed free rein to privilege nationalchampions that harmed competition in and out of their country,imposing costs on outsiders as well as on their own people.A positive reading of the antitrust clause helps to fill thegap.     

美国反托拉斯法生成进路研究——以规制铁路公司垄断为线索

19世纪下半叶是美国反托拉斯法生成的重要时期。这一时期铁路公司垄断成为社会普遍关注的焦点。面对此,联邦和州采取了不同的措施,其中州承担了反铁路公司垄断的主要任务,初步形成了州反托拉斯法的制度框架,为联邦反托拉斯法的生成奠定了基础。在这一历史进程中,对公用事业垄断的规制、州反托拉斯法的建设以及《谢尔曼法》背后利益的关注,构成了解读反托拉斯法生成进路的三个结点。     

格式条款标准化的垄断协议认定

传统的逆向选择模型将低质量格式条款的生成归因于需求端的认知缺陷;共谋模型将低质量维持原因解释为供给端的共谋,为反垄断法介入提供依据。格式条款标准化的横向垄断协议认定应满足《反垄断法》第13条规定的形式要件与效果要件,采用一般举证规则作为分析模式,由原告证明其"协议、决定或协同行为"形式及反竞争效果。形式要件以"形式与反竞争效果的尽可能耦合"为逻辑起点,应基于市场力的持久性与显著性标准加以重构。反竞争效果要件以对竞争的实质限制为标准,参照美国法实践,可通过质量或交易自由限制路径证成。     

美国反垄断法豁免中的诺尔——本灵顿原则评析

诺尔——本灵顿原则是由美国联邦最高法院通过几个案例确立的联邦反垄断法中的一个原则,其主要含义是:根据《美国宪法第一修正案》的规定,即使竞争者通过游说政府而改变法律将会削弱竞争,其行为也不违反反垄断法。诺尔——本灵顿原则是协调《谢尔曼法》的重要目标与公民请愿权利和各级政府有效决策之间关系的产物。诺尔——本灵顿原则对中国的反垄断法执法也有一定启发意义,在执法过程应当全面协调经营者的竞争利益与其他经营者的宪法权利、与政府行为的关系。     

Certificate-of-need in an antitrust context

Recent cases such as National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City have found that certificate-of-need (CON) legislation did not intend to remove antitrust considerations. This note discusses the exemptions from antitrust provided by the state action doctrine of Parker v. Brown as well as the Noerr-Pennington doctrine, both of which appear to protect provider input into the CON process. Providing information that assists decision-making must be carefully distinguished from providing data that serve the interests of physicians and hospitals.     

A primer on US antitrust claims against patentees under Walker Process

Legal context: In the wake of two recent cases from the Federal Circuit onthe subject, this article provides an introduction to the WalkerProcess doctrine under US law. Under the doctrine, a patenteewho knowingly enforces a patent procured by intentional fraudon the patent office may lose its immunity to antitrust claims,should it act to enforce its patent. Key points: Walker Process fraud refers to a knowing and deliberate fraudperpetrated on the patent office as opposed to mere acts ofinequitable conduct. Proving that a patent applicant engagedin Walker Process fraud does not by itself prove liability foran antitrust violation. The accused infringer must still provethe individual elements of an antitrust claim. Antitrust claimsbased on Walker Process fraud require significant time and resourcesto litigate. Practical significance: With the allure of mandatory treble damages and attorney's fees,antitrust claims based on Walker Process fraud can serve asa potent counterclaim for an accused infringer's arsenal. Butthe legal requirements and resources needed to successfullylitigate these claims to a conclusion may temper their effectivenessfor the typical patent-infringement suit.     

Doctors and hospitals: an antitrust perspective on traditional relationships

Under new pressures for cost containment, hospitals are increasingly asserting interests that conflict with those of physicians. Professor Havighurst argues that legal rules under which practitioners have challenged denials of hospital admitting privileges should be clarified in order that hospitals can more effectively carry out their new cost-containment and other responsibilities. He invokes antitrust law's "essential-facilities" doctrine to protect those abused by their competitors on a hospital staff, but he contends that, if a hospital participates in decisionmaking as an independent actor--even though it acts in concert with its physicians--, antitrust courts should lower the level of scrutiny to a point at which most challenges can be dismissed summarily. He analogizes restraints imposed by hospitals on competition between health professionals to vertical restraints of other kinds, and draws conclusions critical of doctrine traditionally applicable to the latter.     

Pharma on the hot seat

The pharmaceutical industry has been receiving greater scrutiny lately due in large part to the many public and private legal enforcement actions taken against pharmaceutical manufacturers. These enforcement actions, along with legal developments such as the OIG Compliance Guidance for Pharmaceutical Manufacturers, the Sarbanes-Oxley Act's statutory guidelines for public corporations, the HIPAA privacy regulations, and the Medicare Modernization Act, have the potential to encourage the pharmaceutical industry to self-regulate beyond the bounds currently required by the law. After a brief overview of enforcement actions and compliance programs directed toward the pharmaceutical industry, this Article reviews a similar situation the hospital industry faced when Medicare promulgated major reimbursement modifications. The Article proposes that the pharmaceutical industry, in the face of such intense scrutiny and uncertainty, should implement more rigorous self-regulation. Without more stringent self-regulation, this intense interest in the pharmaceutical industry may result in a regulatory push that establishes unanticipated and cumbersome measures for the industry.     

反垄断请求的可仲裁性问题研究——以美国为视角

本文以美国为视角,对反垄断请求的可仲裁性问题进行了探讨。文章概述了美国法院在这一问题上的态度,讨论了《纽约公约》的相关规定以及美国的有关立法和司法实践,论及了《谢尔曼法》和AmericanSafety等案件,并对美国法院审理三菱汽车公司一案的判决予以重点研究,分析了该案判决对国际商事仲裁所产生的深远影响。     

The Family and Medical Leave Act of 1993--Wage and Hour Division, Department of Labor. Interim final rule; request for comments

This document contains interim regulations implementing the Family and Medical Leave Act of 1993 called ("FMLA" or "the Act"). The Act is effective on August 5, 1993, six months from the date of its enactment. Where a collective bargaining agreement is in effect on August 5, 1993, the Act is effective when the collective bargaining agreement terminates or February 5, 1994, whichever is earlier. The purpose of these regulations is to set forth the requirements of Title I and Title IV of the Act. Title I applies to covered private employers and public agencies (except for most of the Federal Government, which is governed by Title II). Title IV of the Act primarily concerns the relationship between FMLA and other laws, as well as collective bargaining agreements and other employer plans and programs.     

论公司、企业人员受贿犯罪主体的立法完善

《刑法》第163条规定了公司、企业人员受贿罪,但这一规定,仅将犯罪主体规定为公司、企业的工作人员,而没有将其他单位的人员包括在内,因此会导致非公司、企业的单位人员利用职务上的便利收受贿赂的行为无法处理。这一漏洞需要通过修改《刑法》对公司、企业受贿罪的规定,扩大其犯罪主体的范围来解决。     

论反垄断法的伦理基础

对反垄断伦理的研究能够给反垄断提供更加深刻的解释力。竞争正义是反垄断法的伦理基石,反垄断法研究必须解答何谓正义的竞争这一问题。竞争自由是竞争正义的前提条件,竞争效率是反垄断法的核心理念,竞争公平是反垄断法永恒的价值追求。     

“机关”不宜规定为单位犯罪的主体

机关应否规定为单位犯罪的主体,在1996年修订《刑法》时即存在争论。我国1997年《刑法》第30条明文规定"机关"可以作为单位犯罪的主体,但争论并未因此而停止。通过对"机关应否规定为单位犯罪主体的争论"和"机关规定为单位犯罪主体的得失"的评析,可以看出将国家机关规定为单位犯罪的主体弊大于利,因而虽有规定,却没有执行,实际成为置而不用。据此,"机关"不宜规定为单位犯罪的主体,《刑法》第30条中的"机关"一词还是取消为好。     

The Damage Done: Cocaine Methods in Detroit

The pro-competitive antitrust doctrine has originated in the free-market economies of Western capitalist countries but with economic transformations in Eastern Europe the doctrine ceased to be an exclusive Western concept. Using the example of the Polish law on combating Trust in the National Economy of 1987, the author demonstrates the spread of the antitrust doctrine from capitalism to socialism. Apart from these changes, the doctrine has been spreading on the international level because increasingly it has found application not only within particular countries but also with regard to trade and commerce between and among countries. The multidimensional nature of the antitrust doctrine has important implications for combating both domestic and international antitrust crime. The efficiency of efforts to combat abuse of a dominant market position, limiting access to the market or other forms of restraining competition will depend increasingly on the degree to which organs responsible for fighting antitrust crimes are willing to benefit from the multi-dimensional nature of the antitrust doctrine.     

The economic analysis of antitrust consents

Henry G. Manne, our friend, Mentor, and colleague, was a pioneer in the economic analysis of law. By consistently challenging the notion that existing institutions were well understood, he expanded the domain of economics to new and fertile ground. In that spirit, our goal in this article is to bring out of the shadows an institution that has thus far evaded the light of economic analysis: antitrust consents. In our view, competition authorities around the world should be asking themselves what ratio of litigation to settlement is optimal for their agency. Over the last 35 years, the United States Federal Trade Commission and the Antitrust Division of the Department of Justice have shifted dramatically toward greater reliance upon consent decrees than upon litigation to resolve antitrust disputes. As an aid to national competition agencies considering the desirability of adopting a similar approach, we focus upon the importance of economic analysis in evaluating movement along the continuum from a law enforcement model to a regulatory model of agency behavior. We draw upon the U.S. experience to substantiate our claim that the costs associated with a shift toward the regulatory model, including the potential distortion in the development of substantive antitrust doctrine, may be under-appreciated and discernable only in the long run. We acknowledge that consent decrees can and should be an important tool in an antitrust agency’s toolkit for resolving antitrust disputes. We contend, however, that a full economic analysis of reliance primarily upon consent decrees is necessary to inform each competition agency’s strategic decision about the optimal mix of law enforcement and regulatory techniques.