Einer Elhauge, the Petrie Professor of Law at Harvard Law School, has been selected as the recipient of the Jerry S. Cohen Award for Antitrust Scholarship for his article “Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory” (123 Harvard Law Review 397, 2009).
Elhauge will receive the award during the gala luncheon at the American Antitrust Institute’s Annual Conference on June 24 at the National Press Club in Washington The Jerry S. Cohen Award for Antitrust Scholarship was created through a trust established in honor of the late Jerry S. Cohen, an outstanding trial lawyer and antitrust writer. It is administered by his former law firm Cohen Milstein Sellers & Toll. The Committee that selected the best antitrust scholarship of 2009 consisted of: Prof. Eleanor Fox of New York University School of Law; Prof. Warren S. Grimes of Southwestern Law School; Ann C. Yahner, Administrative Law Judge for the District of Columbia; Charles P. Goodwin, Partner at Berger & Montague; Daniel A. Small, Partner at Cohen Milstein Sellers & Toll; Robert H. Lande, Venable Professor of Law, University of Baltimore School of Law; and Roger Noll, Professor of Economics Emeritus, Stanford University.
In “Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory,” Elhauge contends that both Chicago School theorists (who have argued that tying cannot create anticompetitive effects because there is only a single monopoly profit) and some Harvard School theorists (who have argued that tying doctrine’s quasi–per se rule is misguided because tying cannot create anticompetitive effects without foreclosing a substantial share of the tied market) are mistaken. Instead, Elhauge asserts that even without a substantial foreclosure share, tying by a firm with market power generally increases monopoly profits and harms consumer and total welfare, absent offsetting efficiencies.
Elhauge is an author of numerous pieces on a range of topics even broader than he teaches, including antitrust (monopolization, predatory pricing, tying, bundled discounts, loyalty discounts, disgorgement, petitioning and state action immunity, the Google Books Settlement, and the Harvard v. Chicago schools of antitrust), public law (statutory interpretation, legislative term limits, the 2000 Presidential election, the implications of interest group theory for judicial review), corporate law (social responsibility and sale of control doctrine), patent law (patent holdup and royalty stacking), the legal profession (the value of litigation and counseling advice), and health law policy (healthcare fragmentation, medical technology assessment, how to make health law a coherent legal field, and how to devise a morally just and cost effective medical system). He served as Chairman of the Antitrust Advisory Committee to the Obama Campaign.
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