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Abstract:
E. Hoffmann-La Roche Ltd. v. Empagran S.A. concerned a private antitrust suit for damages against a global vitamins cartel. The central issue in the litigation was whether foreign plaintiffs injured by the cartel's conduct abroad could bring suit in U.S. court, an issue that was ultimately resolved in the negative. We take a welfarist perspective on this issue and inquire whether optimal deterrence requires U.S. courts to take subject matter jurisdiction under U.S. law for claims such as those in Empagran. Our analysis considers, in particular, the arguments of various economist amici in favor of jurisdiction and arguments of the U.S. and foreign government amici against jurisdiction. We explain why the issue is difficult to resolve, and identify several economic concerns that the amici do not address, which may counsel against jurisdiction. We also analyze the legal standard enunciated by the Supreme Court and applied on remand by the D.C. Circuit, and we argue that its focus on independent harms and proximate causation is problematic and does not provide an adequate economic foundation for resolving the underlying legal issues.

Abstract:
E. Hoffmann-La Roche Ltd. v. Empagran S.A. concerned a private antitrust suit for damages against a global vitamins cartel. The central issue in the litigation was whether foreign plaintiffs injured by the cartel's conduct abroad could bring suit in U.S. court, an issue that was ultimately resolved in the negative. We take a welfarist perspective on this issue and inquire whether optimal deterrence requires U.S. courts to take subject matter jurisdiction under U.S. law for claims such as those in Empagran. Our analysis considers, in particular, the arguments of various economist amici in favor of jurisdiction and arguments of the U.S. and foreign government amici against jurisdiction. We explain why the issue is difficult to resolve, and identify several economic concerns, which the amici did not address, that may counsel against jurisdiction. We also analyze the legal standard enunciated by the Supreme Court and applied on remand by the DC Circuit, and we argue that its focus on independent harms and proximate causation is problematic and does not provide an adequate economic foundation for resolving the underlying legal issues. A revised version of this paper is in ANTITRUST STORIES from Foundation Press, edited by Daniel Crane and Eleanor Fox and in Competition Law & Economics 309 (2007).

Abstract:
The concept of technological opportunity is examined and the following three categories of technological opportunity sources are discussed: (1) advances in scientific understanding and technique which expand the pool of technological opportunities, (2) technological advances that originate in other industries, and (3) positive feedback from a specific industry's own technological advances. Data gathered from 650 responses to the Yale Survey on Industrial Research and Development undertaken in 1983-1984 are used to measure the sources of technological opportunity and to ascertain inter-industry differences of technological opportunities. The participants were high-level R&D managers, representing 130 lines of business, who were asked to respond as informed observers on the typical situation in their field. Results suggest systematic differences between the role of science as a pool of knowledge and the role of new discoveries. Generally, university-based research in a field is not considered by the respondents to be as important to technological advances as is the overall body of science in the field. One field seen as the exception to this is biological sciences. The industries with technologies based in the biological sciences seem to be fed by new scientific developments from university-based agricultural and medical research to a substantial degree. Many industries highly value the contribution made to their technological progress by firms located somewhere else in the production chain. Specifically, contributions from suppliers of materials and production equipment were seen as extremely valuable. In addition to the importance of these extra-industry sources of technological advances, firms within the industry were seen as playing a vital role in generating technological progress. Finally, both university and government research were found to stimulate and complement industrial research and development. The differing sources of technology opportunities across industries may help to explain the different rates of technological progress. (SFL)

Technologies, Technology innovation, R&D, Science, Technology acquisition, Academic research, University-industry relations, Interindustry relations, Colleges & universities, Technology transfer, Innovation process