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Full-Text Articles in Law
Criminal Enforcement Of Section 2 Of The Sherman Act: An Empirical Assessment, Daniel A. Crane
Criminal Enforcement Of Section 2 Of The Sherman Act: An Empirical Assessment, Daniel A. Crane
Law & Economics Working Papers
The Biden Justice Department has announced that it may begin to bring criminal monopolization cases under Section 2 of the Sherman Act, a practice that the Department has not employed in almost half a century. The Department's leadership has justified this idea by asserting that it used to be common practice for the Antitrust Division to bring such cases. This Article presents the findings of an empirical study of all of the Justice Department's antitrust case filings. It finds that the Justice Depart brought 175 criminal monopolization cases between 1903 and 1977, but that only 20 of these involved unilateral …
A Case For Higher Corporate Tax Rates, Edward G. Fox, Zachary D. Liscow
A Case For Higher Corporate Tax Rates, Edward G. Fox, Zachary D. Liscow
Law & Economics Working Papers
In this report, Fox and Liscow argue that, while conventional wisdom holds that we should lower taxes on corporations because of international competition, two recent changes militate in favor of higher corporate taxes, which would close the deficit, fund social programs, and reduce inequality. First, changes in tax law have increasingly targeted the corporate tax at economic “rents,” the supersized returns that businesses receive when they enjoy advantages like market power. Because taxing rents is progressive and does little to harm economic activity, a higher rate is justified. Second, shifts in the American economy have allowed companies to earn more …
Fascism And Monopoly, Daniel A. Crane
Fascism And Monopoly, Daniel A. Crane
Law & Economics Working Papers
The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Unit, this Article assesses the historical …
Search Neutrality As An Antitrust Principle, Daniel A. Crane
Search Neutrality As An Antitrust Principle, Daniel A. Crane
Law & Economics Working Papers
Google's perceived dominance in Internet search, and the perception that Google exploits this dominance to favor its own websites and service, has led to call for a mandatory legal requirement of "search neutrality." This essay argues that a general principle of search neutrality ignores the realities of Internet search and would stymie search innovation.
Rethinking Merger Efficiencies, Daniel A. Crane
Rethinking Merger Efficiencies, Daniel A. Crane
Law & Economics Working Papers
The two leading merger systems—those of the United States and the European Union—treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power. The implicit asymmetry principle has important systemic effects for merger control. Not only does it stand in the way of some socially desirable mergers, but it may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry and none of the plausible justifications is normatively …
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Law & Economics Working Papers
The law of exclusionary vertical restraints—contractual or other business relationships between vertically related firms—is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices including predatory pricing, tying, exclusive dealing, price discrimination, and bundling are treated very differently based on formalistic distinctions that bear no relationship to the practices’ exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors, foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …
Predation Analysis And The Ftc’S Case Against Intel, Daniel A. Crane
Predation Analysis And The Ftc’S Case Against Intel, Daniel A. Crane
Law & Economics Working Papers
The Federal Trade Commission's pending antitrust case against Intel challenges a number of Intel's discounting and rebating practices. The Commission appears poised to apply a cost-price test to the challenged practices, but proposes to include "fixed sunk costs" in the appropriate measure of cost. This paper explains the importance of using cost-price screens to assess unilaterally imposed prices and analyzes the futility of including sunk costs in the relevant cost measure.
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-09 Financial Crisis?, Daniel A. Crane
Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-09 Financial Crisis?, Daniel A. Crane
Law & Economics Working Papers
This introductory essay for a symposium on antitrust enforcement during economic crises provides a brief historical overview of the failures of antitrust enforcement during major economic crises and wars in the first half of the twentieth century. It then considers the reasons that historical narrative breaks off in the second half of the twentieth century and asks whether there is evidence of its revival during the recent economic crisis.
Reflections On Section 5 Of The Ftc Act And The Ftc’S Case Against Intel, Daniel A. Crane
Reflections On Section 5 Of The Ftc Act And The Ftc’S Case Against Intel, Daniel A. Crane
Law & Economics Working Papers
This paper explores the policy implications of the FTC's decision to file its enforcement action against Intel under Section 5 of the FTC Act and declare that it has the power to go further under Section 5's "unfair competition" prong than it could under Section 2 of the Sherman Act. It argues that Intel is an inappropriate case for the Commission to make a bid for Section 5 independence since none of the Commission's institutional advantages over Article III courts justifies a departure from ordinary Section 2 norms in this case. Indeed, the Intel case has the potential to set …