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The Dynamic Competition Paradigm: Insights and Implications
Get PDFDynamic innovation-driven competition is what strong competition policy should favor; yet it is the weaker static efficiency driven competition which animates current competition economics and enforcement action. The shortcomings of the static efficiency approach have resulted in backward looking antitrust actions that underappreciate certain forms of potential competition resulting in errors with respect to the assessment of monopoly power, M&A activity, and complex contracts. This paper exposes the weaknesses of static analysis and calls for a forward-looking capabilitiesbased determination of competitive effects. The proposed framework requires deeper analyses of (supply side) capabilities, both technological and organizational, present and future. It endorses a long-term consumer welfare standard and calls for a multidisciplinary approach that draws on complexity economics, technology management, organizational behavior, and information and computer science. The administrability of the dynamic competition framework will be at hand once the foundation of dynamic competition are more fully embellished and better understood by both economists and lawyers
Are We Not Taking Innovation Seriously? A Discussion of the 2022 Howard Taft Lecture
Get PDFA growing body of research papers, speeches, and litigation challenges focused on innovation competition suggests that antitrust practitioners are taking innovation seriously. This paper provides an overview of the innovation debate, with a commentary on a proposed policy framework to promote competition in high-technology or big-technology industries described by Professor David Teece in his 2022 Taft Lecture. Experts agree that conduct involving harm to innovation competition and mergers that focus on an overlap of future products that do not currently exist cannot easily be understood, if at all, with traditional analyses of historical prices, output, and margins for existing products. The hard part is figuring out what to do instead. Recent cases that focus on harm to innovation competition highlight the need to understand business capabilities and the frontier of new technology in the pled markets. Recent decisions demonstrate that courts are not necessarily swayed by structural presumptions involving large firms in highly concentrated markets as measured by today’s output; instead, courts understand that large dominant firms can be competitive, because of their desire to maintain their lead position. These cases also provide guidance on how to prove (or disprove) a theory of harm involving potential competition
Regulating Democratized Finance: Cryptocurrency, Retail Broker-Dealers and the SEC's Regulatory Perimeter
Get PDFThe SEC has long been faced with the difficult task of regulating financial market innovations, and the rise of fintech has increased the complexities faced by the agency. As fintech entities grew in popularity among retail investors and moved financial markets closer to what some call “democratized finance,” calls for new regulations grew louder. After years of hesitancy, investigation and regulatory uncertainty, the SEC has been increasingly responsive to these calls.
This Note reviews and conceptualizes the SEC’s approach to regulating new developments in financial market access since the agency’s founding in the 1930s. This Note begins with a review of prior SEC approaches to regulation through either enforcement or the promulgation of new regulations, and then reviews how the agency has used these approaches when regulating two prominent fintech segments: online retail-broker dealers and cryptocurrency entities. Lastly, the Note proposes two frameworks to conceptualize historical and contemporary regulatory approaches by the agency. Ultimately, by reviewing prior instances of regulation, contemporary issues and frameworks, this Note aims to give greater clarity to how the SEC has and will continue to regulate financial market innovations, in particular as it relates to “democratized” financial markets. 
Trade Secrets in Biologic Medicine: The Boundary with Patents
Get PDFCan something be both open and secret? That is the conundrum facing society as trade secret rights chafe against patent rights in cutting-edge, biologic medicine. The conflict is unsurprising. Trade secret has emerged as a relatively late bloomer among the family of intellectual property rights and only recently has begun to establish the boundaries of its own space, a process in which it will inevitably knock against other intellectual property doctrines already occupying their own domains. Nor is it surprising that the clash would arise in a fast-moving area of medical science. From insulin products, to cancer treatments, to mRNA vaccines, companies are staking the health of their companies on biologics.
There is a dearth of legal literature on the topic of trade secrets in the biologic space and almost nothing regarding how trade secrets interact with the patent system in that domain. These scientific and legal areas are sufficiently complex that even the most intrepid scholars fear to tread. This article explains in detailed and accessible language how the systems are working together to the detriment of society.
To address the problem, this article argues that a company receiving a patent on a drug product should be required to disclose the full range of trade secrets necessary to make that drug. As the descriptions below will explain, patent applicants are able to satisfy the patent requirement of providing sufficient disclosure that “one skilled in the art can make and use” the invention, without actually providing the information to do so. The surrounding regulatory systems intended to facilitate sharing of clinical trial data suffer the same problem.
As is frequently said in biologics, “the process is the product.” In other words, the only way to define something derived from elements of living organisms is by describing the process of producing it. Thus, lack of process information is particularly problematic with biologics. Being faithful to the theoretical underpinnings of the intellectual property regimes requires a resolution of this problem and the establishment of a more effective boundary line between trade secrets and patents for biologic medicine
Prosecuting Excessive Pricing of Pharmaceuticals Under Competition Law: Evolutionary Development
Get PDFProsecution of pharmaceutical companies for excessive pricing of products under competition law is now a reality. As recently as a decade ago, such prosecutions were virtually nonexistent. That situation has changed dramatically as competition authorities in Europe and South Africa have pursued a significant number of such prosecutions and have levied substantial fines against the
investigated parties. While the United States has traditionally led in policing the pharmaceutical market against anticompetitive misconduct, in this specific arena it has fallen behind, principally because federal courts so far have refused to acknowledge excessive pricing as a cause of action under Section 2 of the Sherman Act.
In a succession of cases European competition authorities have demonstrated concretely the way in which excessive pricing prosecutions may be pursued. This article examines those cases in some detail showing the challenges that competition authorities have faced, and how they have gone about addressing them. The successes in Europe should help put to rest arguments regarding the difficulties in ascertaining how pharmaceutical products are priced, particularly for products no longer covered by patents or regulatory market exclusivity. The South African competition authority is undertaking its second major prosecution of excessive pricing of originator products. The ongoing case involves an essential anticancer medicine the pricing of which has deprived individuals in South Africa of life-saving treatment.
Methodologies for investigating and analyzing abusive pricing are being regularized. This is important because competition authorities around the world should be able to rely on generally accepted standards for pursuing misconduct. This article suggests doctrinal improvements in the form of per se baseline rules for establishing excess with respect to generics, and rule of reason balancing tests for assessing the fairness of pricing practices for originator products and generics not encompassed by per se rules. The continued evolution of excessive pricing doctrine does not depend on these improvements. More important is continuing legal, financial, and political support for the efforts of competition authorities in this area.
Patents, regulatory market exclusivity and other structural features insulate the pharmaceutical market from economic pressures that ordinarily create and recreate an equilibrium that protects consumers. For the pharmaceutical market, there must be a means to redress excessive prices in themselves. Competition law enforcement is an important tool for achieving that redress
Instrumental Jawārī: On Gender, Slavery, and Technology in Medieval Arabic Sources
No full textFemale domestic slaves designated as jawārī (sing. jāriya) featured in a range of medieval Arabic sources, including treatises on the mechanical arts. They appeared, for example, as liquid-serving devices and timekeepers. Scholarship on automated jawārī, however, has been scant; little, in fact, has been written on gender, slavery, and technology in the medieval Middle East. Generally, figurative machines have been framed as either practical, proto-robotic forms or wondrous, elite contrivances. Though seemingly innocuous, these approaches are at risk of reinscribing modern biases. In particular, the utilitarian discourse that sees machines as neutral, useful objects has been shown to manifest a position of mastery, reinforcing a slippage between worker and tool. Yet the hypothesis that the automata were objectifying, framing the jāriya as the object of a patron’s viewpoint, might also partake in the binaries of subject and object, master and slave. To attend to the gendered and class-based politics of automated jawārī requires that we forgo common assumptions about both technology and objectification. The notion of instrumentality—here defined as the quality of serving as an instrument (āla) in a process of carrying and transmitting—may prove helpful in this regard. Jawārī, it turns out, were portrayed as instrumental figures in various other domains, including in domestic and spiritual contexts. Ṣūfī saints’ encounters with inspired jawārī, for example, foregrounded the female servant as a vector of divine wisdom. Like the engineer’s prototypes, these narratives were the product of a male, patriarchal viewpoint, oscillating between demeaning and valorizing effects; as such, they fortified some of the norms that made jawārī representable, notably as hypervisible, mediating agents. At the same time, these representations expose the limits of utilitarian, apolitical approaches to technology while positing jawārī as vehicles—more than objects—of instrumentality
Scaling Refrains: Political Ecology of Monophony and Silences of an In-Between Place
Get PDFWithin and beyond the 1950s environmental framework, the global awareness toward the anthropogenic environmental impact and risk has stimulated critical discussions of the interrelations of human, nature, and material productive forces with an expansion of the planetary scale interrelations and place imaginaries as multiplicities. Parallel to the global transformation of risk societies, Turkiye has been dealing with environmental risks that transform its ecologies in acoustical and political senses. However, the historical and recently manifested discourses about sound and soundscapes have remained contingencies of the national singular narratives. By attending to the rhizomatic multiplicities in soundscapes along with the changing environmental definitions of sense of place, in this article, I examine refrains and investigate the fundamental question of why a particular acoustic ecology is recognized in singular forms and monophonies that are representative of this place imaginary independent of the forces in a material sense. Via the new terms that I coin, origin-essence and impetus, I further analyze refrains’ role in constructing communal imaginaries centered around inter- and intra-nationality to present the ongoing modern silences, narratives of Islamic and secular binary divisions, and the monophony of soundscapes of Turkiye. In doing so, I examine post-Covid-19 mosque recitations and broadcasts in Ankara in relation to the mosque calls’ role in preventing the July 15th, 2016 military coup d’etat attempt, the historical dichotomy of makam and scale in relation to European colonialism and Turkish cosmopolitanism, and the significance of refrains in Béla Bartók’s and Adnan Saygun’s ethnomusicological research in Central Anatolia
calliope listens amongst her selves
No full textVideo (12:01) with edited output of a study whereby recordings taken from 3 propagated instances of the Monstera deliciosa plant, Calliope, were fed into a 3trinsRGB video synthesizer. The original recordings are layered to accompany the video, which in all is a speculative document of a network organism's practice of listening to itself
Creating Third Spaces of Learning for Post-Capitalism: Lessons from Educators, Artists andActivists
No full textThe Impact of a Brief Humanizing Intervention on Prejudice Towards Transgender Individuals
Get PDFTransgender individuals face an abundance of stigma and prejudice from society, making them vulnerable to discrimination, violence, increased stress, and mental health deterioration (Hughto et al., 2015). This study looked at the extent to which a brief humanizing intervention can decrease prejudice against transgender individuals using methods designed to reduce social desirability bias. Unlike past work, the current study implemented a control group that was not subjected to any intervention. Participants (N=302) were randomly assigned to one of three conditions: the control condition, the transman letter condition, and the musician letter condition. Only cisgender participants within the gender binary were used in the analysis (N=293). The humanizing intervention involved having participants read a letter written by a transgender man in which he comes out to his parents. The musician letter condition involved having participants read a letter written by a young man telling his parents that he is quitting college to pursue a career in music. The control condition did not include any letter. Participants then responded to various dependent measures such as attitudes towards transgender individuals and empathy. Few effects of the intervention were observed, which were inconsistent with past research. However, the results of this study showed an impact on participants’ perception of how parents should react to their children coming out and a decrease in the standard gender differences in empathy. Thus, the results offer a nuanced understanding of the extent to which humanizing interventions can reduce prejudice towards transgender individuals