Authors of two outstanding articles were presented with the Jerry S. Cohen Award for Antitrust Scholarship at the American Antitrust Institute's Annual Conference today. The Cohen Award 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 the law firm he founded, Cohen Milstein Sellers & Toll PLLC.
Michal S. Gal and Alan D. Miller were honored for their article “Patent Challenge Clauses: A New Antitrust Offense?”, 102 Iowa L. Rev. 1477 (2017), in which they argue that patent challenge clauses, which prohibit licensees from challenging the validity of the patents underlying their license agreement, should be illegal under antitrust law. They justify this conclusion under both existing doctrine as laid out by the Supreme Court in FTC v. Actavis, Inc. and under normative welfare-maximization principles. In doing so, they explain why current contract law responses to these clauses do not go far enough.
Economists Phillip Johnson, Edward Leamer, and Jeffrey Leitzinger were honored for their article “Statistical Significance and Statistical Error in Antitrust Analysis,” 81 Antitrust L.J. 641 (2017), where, noting the central role that regression analysis plays in proof of antitrust impact and estimation of damages, they discuss the intellectual foundations of statistical significance thresholds, alternative ways of viewing “significance,” loss tradeoffs associated with inferential decision making, and the nature of evidentiary burdens (both implicit in conventional statistical significance levels and explicit in legal standards). They recommend that statistical significance should be evaluated against the backdrop of other evidence, recognizing the risk not only of false positives, but also of false negatives.
The award is given each year to the best antitrust writing during the prior year that is consistent with the following standards established by the Board of Trustees of the Jerry S. Cohen Memorial Fund. To be considered eligible and selected for the Award, submissions should reflect a concern for principles of economic justice; the dispersal of economic power; and the maintenance of effective limitations upon economic power or the federal statutes designed to protect society from various forms of anticompetitive activity. Submissions should reflect an awareness of the human and social impacts of economic institutions upon individuals, small businesses and other institutions necessary to the maintenance of a just and humane society—the values and concerns that Jerry S. Cohen dedicated his life and work to fostering. Submissions may address substantive, procedural or evidentiary matters that reflect these values and concerns.
The award selection committee has also conferred six category awards, as follows:
- Best State Action Immunity Article: Rebecca Haw Allensworth, “Foxes at the Henhouse: Occupational Licensing Boards Up Close,” 105 Calif. L. Rev. 1567 (2017)
- Best Antitrust and Healthcare Article: Michael A. Carrier, “Sharing, Samples, and Generics: An Antitrust Framework,” 103 Cornell L. Rev. 1 (2017)
- Best Vertical Restraints Article: Thomas K. Cheng, “A Consumer Behavioral Approach to Resale Price Maintenance,” 12 Va. L. & Bus. Rev. 1 (2017)
- Best Cartel Article: Christopher R. Leslie, “Foreign Price-Fixing Conspiracies,” 67 Duke L.J. 557 (2017)
- Best Antitrust and Mergers Article: Jaime S. King & Erin C. Fuse Brown, “The Anti-Competitive Potential of Cross-Market Mergers in Health Care,” 11 St. Louis U. J. Health L.& Pol’y 43 (2017)
- Best Antitrust Book: Peter C. Carstensen, Competition Policy and the Control of Buyer Power: A Global Issue (2017)
The award committee consisted of Zachary Caplan, Beth Farmer, Warren Grimes, John Kirkwood, Robert Lande, Christopher Leslie, Roger Noll, and Dan Small.