Table of Contents

Discretionary Authority and Prioritizing in Government Agencies

Maarten Pieter Schinkel, University of Amsterdam - Amsterdam Center for Law & Economics (ACLE), Tinbergen Institute - Tinbergen Institute Amsterdam (TIA)
Lukáš Tóth, University of Amsterdam - Amsterdam Center for Law & Economics (ACLE)
Jan Tuinstra, University of Amsterdam - Department of Quantitative Economics (KE), Tinbergen Institute

U.S. Court Issues Concerning Ruling on Drug Patent Settlements (Loestrin)

Michael A. Carrier, Rutgers University School of Law - Camden

A Review Is Needed : Why India's Antitrust Regulator Should Scrutinize the Facebook-WhatsApp Merger

Avirup Bose, Competition Commission of India

Facilitating Medical Product Development Through Voluntary Data Sharing: A Look at the Legal Issues

Aliza Y. Glasner, Georgetown University - The O'Neill Institute for National and Global Health Law
Erin E. Wilhelm, Georgetown University Medical Center
Lawrence O. Gostin, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
Ira Shoulson, Georgetown University


ANTITRUST: ANTITRUST LAW & POLICY eJOURNAL

"Discretionary Authority and Prioritizing in Government Agencies" Free Download
Amsterdam Center for Law & Economics Working Paper No. 2014-06
Amsterdam Law School Research Paper No. 2014-65

MAARTEN PIETER SCHINKEL, University of Amsterdam - Amsterdam Center for Law & Economics (ACLE), Tinbergen Institute - Tinbergen Institute Amsterdam (TIA)
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LUK?Š TÓTH, University of Amsterdam - Amsterdam Center for Law & Economics (ACLE)
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JAN TUINSTRA, University of Amsterdam - Department of Quantitative Economics (KE), Tinbergen Institute
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Government agencies typically have a certain freedom to choose among different possible courses of action. This paper studies agency decision-making on priorities in a principal-agent framework with multi-tasking. The agency head (the principal) has discretion over part of the agency's budget to incentivize his staff (agents) in the pick-up of cases. The head is concerned with society's benefits from the agency's overall performance, but also with the organization's public image as formed from pursuing high-profile cases and various non-case specific activities. Based on their talent and the contracts offered by the head, staff officials choose which type of task to pursue: complex major, yet difficult to complete cases with an uncertain outcome, or basic minor and simple cases with a high probability of success. The size of the agency's discretionary budget influences not only the scale, but also the type of tasks it will engage in. Social welfare is non-monotonic and discontinuous in the agency's budget. Small changes in the budget may cause extensive restructuring from major to minor tasks, or vice versa. A budget cut can increase welfare more than too little extra budget would. For lower binding budgets, the head continues to sub-optimally incentivize work on complex tasks, when the agency should have shifted down to simpler tasks. In determining the discretionary space of the agency head, the budget-setter can limit the extraction of resources, but thereby also reduces the benefits from the head's superior information on how to incentivize the officials. Antitrust authorities serve as one illustration of policy implications for institutional design, including optimal budgeting and agency mergers.

"U.S. Court Issues Concerning Ruling on Drug Patent Settlements (Loestrin)" Free Download
e-Competitions Bulletin, No. 69705, October 2014

MICHAEL A. CARRIER, Rutgers University School of Law - Camden
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In In re Loestrin 24 FE Antitrust Litigation, the U.S. District Court for the District of Rhode Island issued a concerning ruling on drug patent settlements. The court misapplied the Supreme Court’s landmark decision in FTC v. Actavis, granting a motion to dismiss plaintiffs’ challenge to a settlement that had allegedly delayed generic entry.

In this short article, I summarize the case and then discuss six concerns with the opinion: (1) an improper framework, (2) an excessively high bar confronting plaintiffs, (3) a restriction of Actavis to cash payments, (4) the neglect of Actavis holdings, (5) the casting of blame on the Supreme Court, and (6) a disregard of pleading standards. If this decision stands and is adopted by other courts, patent litigants will gladly accept the roadmap the court provided to “evade Sherman Act scrutiny.?

"A Review Is Needed : Why India's Antitrust Regulator Should Scrutinize the Facebook-WhatsApp Merger" Free Download
Competition Law Insight, July 2014

AVIRUP BOSE, Competition Commission of India
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This short article argues why the Competition Commission of India should elect to review the Facebook-WhatsApp merger, even if the transaction does not technically breach the monetary and asset thresholds, prescribed under the provisions of the Indian Competition Act, 2002. In doing so, the article attempts to highlight the existing enforcement gap in the merger control jurisprudence of India and discusses the concept of a catch-all ‘regulatory jurisdiction,’ which should be adopted by the Commission to review mergers having overwhelming public consequences for Indian consumers.

"Facilitating Medical Product Development Through Voluntary Data Sharing: A Look at the Legal Issues" Free Download

ALIZA Y. GLASNER, Georgetown University - The O'Neill Institute for National and Global Health Law
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ERIN E. WILHELM, Georgetown University Medical Center
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LAWRENCE O. GOSTIN, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
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IRA SHOULSON, Georgetown University
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The generation, dissemination, and sharing of research data are key ingredients in contributing to scientific progress and the public good. Data sharing has been encouraged to facilitate open science within the clinical research enterprise, improve the development of drugs and devices, and benefit public health. To date, the subject has received considerable attention in the media and scientific literature, however focused mainly on philosophical arguments. Of the empirical research that exists, much of it has focused on data sharing among academic investigators in the field of life science, including biomedical research, medicine, and genetics. A number of commentaries and editorials have dealt with the ethical repercussions when researchers choose not to share data; others have discussed real or perceived legal barriers to data sharing. These barriers include (1) compromised intellectual property rights and unfair advantages to competitors, (2) risk of increased product liability, (3) issues of collusion under antitrust laws, and (4) risks to research participant privacy.

This report examines the legal issues that may pose barriers to data sharing. The report provides a helpful guide to those in the biomedical community who wish to engage in data sharing. In each section, the authors provide an overview of the legal issue, including the statutes and other background, and suggest approaches for surmounting legal issues.

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Antitrust: Antitrust Law & Policy eJournal

JAMES R. ATWOOD
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JONATHAN B. BAKER
Professor of Law, American University - Washington College of Law

MAXWELL M. BLECHER
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Professor, University of Chicago - Booth School of Business, National Bureau of Economic Research (NBER)

FRANK H. EASTERBROOK
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Executive Director, Networks, Electronic Commerce, and Telecommunications Institute, Professor of Economics, New York University - Leonard N. Stern School of Business - Department of Economics

EINER R. ELHAUGE
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ELEANOR M. FOX
Professor of Law, New York University School of Law

HERBERT J. HOVENKAMP
Professor, University of Iowa - College of Law

LOUIS KAPLOW
Professor of Law, Harvard Law School, National Bureau of Economic Research (NBER)

DANIEL L. RUBINFELD
Professor, University of California at Berkeley - School of Law, National Bureau of Economic Research (NBER), NYU Law School

CARL SHAPIRO
University of California, Berkeley - Haas School of Business