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Antitrust

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Full-Text Articles in Law

Taking Antitrust Away From The Courts, Ganesh Sitaraman Mar 2019

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Ganesh Sitaraman

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of ...


Is Antitrust's Consumer Welfare Principle Imperiled?, Herbert J. Hovenkamp Jan 2019

Is Antitrust's Consumer Welfare Principle Imperiled?, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust’s consumer welfare principle stands for the proposition that antitrust policy should encourage markets to produce output as high as is consistent with sustainable competition, and prices that are accordingly as low. Such a policy does not protect every interest group. For example, it opposes the interests of cartels or other competition-limiting associations who profit from lower output and higher prices. It also runs counter to the interest of less competitive firms that need higher prices in order to survive. Market structure is relevant to antitrust policy, but its importance is contingent rather than absolute – that is, market structure ...


Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton Jan 2019

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition ...


Energy Competition: From Commodity To Boutique & Back, James W. Coleman Jan 2019

Energy Competition: From Commodity To Boutique & Back, James W. Coleman

Faculty Scholarship

Energy products such as power, gas, and oil have long been the world’s premier commodities. Consumers demand that power and fuel are available when they want it and they prefer to pay less for it. Few know or care where their fuel or power comes from. So for years energy companies believed that efforts to differentiate their products were mostly ineffective — they were re-signed to compete on price in fierce global commodity markets. But in recent years, a new focus on regulating how energy commodities are produced has begun to splinter previously integrated energy markets, creating markets for boutique ...


Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp Dec 2018

Whatever Did Happen To The Antitrust Movement?, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasing calls for a new antitrust “movement.” The goals of this movement have been variously defined as combating industrial concentration, limiting the economic or political power of large firms, correcting the maldistribution of wealth, control of high profits, increasing wages, or protection of small business. High output and low consumer prices are typically unmentioned.

In the 1960s the great policy historian Richard Hofstadter lamented the passing of the antitrust “movement” as one of the “faded passions of ...


Prophylactic Merger Policy, Herbert J. Hovenkamp Dec 2018

Prophylactic Merger Policy, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

An important purpose of the antitrust merger law is to arrest certain anticompetitive practices or outcomes in their “incipiency.” Many Clayton Act decisions involving both mergers and other practices had recognized the idea as early as the 1920s. In Brown Shoe the Supreme Court doubled down on the idea, attributing to Congress a concern about a “rising tide of economic concentration” that must be halted “at its outset and before it gathered momentum.” The Supreme Court did not explain why an incipiency test was needed to address this particular problem. Once structural thresholds for identifying problematic mergers are identified there ...


Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop Nov 2018

Revising The Vertical Merger Guidelines (Ftc Hearings), Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This slide deck was the author’s presentation at the FTC Hearings on Vertical Mergers (November 1, 2018). The deck sets out a summary of the author’s economic analysis and proposed revisions to the U.S. Vertical Merger Guidelines.


The Duality Of Provider And Payer In The Current Healthcare Landscape And Related Antitrust Implications, Julia Kapchinskiy Oct 2018

The Duality Of Provider And Payer In The Current Healthcare Landscape And Related Antitrust Implications, Julia Kapchinskiy

San Diego Law Review

Health care landscape has changed with the introduction of the ACA and will keep changing due to the proposed repeal. The only constant is the desire of health plans and providers to maximize profits and minimize costs, which is attainable through consolidation. This Comment advocates a revision of the existing antitrust guidelines that would (1) recognize unique nature of health care market, (2) be independent from the current or proposed legislation to the maximum possible extent, and (3) reflect the insurer-provider duality, which heavily influences the quality and accessibility of the healthcare for the consumer.


Price Discrimination & Intellectual Property, Michael Meurer, Ben Depoorter Oct 2018

Price Discrimination & Intellectual Property, Michael Meurer, Ben Depoorter

Faculty Scholarship

This chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination ...


The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop Oct 2018

The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV ...


Antitrust's Unconventional Politics, Daniel A. Crane Sep 2018

Antitrust's Unconventional Politics, Daniel A. Crane

Articles

Antitrust law stands at its most fluid and negotiable moment in a generation. The bipartisan consensus that antitrust should solely focus on economic efficiency and consumer welfare has quite suddenly come under attack from prominent voices calling for a dramatically enhanced role for antitrust law in mediating a variety of social, economic, and political friction points, including employment, wealth inequality, data privacy and security, and democratic values. To the bewilderment of many observers, the ascendant pressures for antitrust reforms are flowing from both wings of the political spectrum, throwing into confusion a conventional understanding that pro-antitrust sentiment tacked left and ...


Taking Antitrust Away From The Courts, Ganesh Sitaraman Sep 2018

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of ...


Vertical Merger Enforcement Actions: 1994–July 2018, Steven C. Salop, Daniel P. Culley Aug 2018

Vertical Merger Enforcement Actions: 1994–July 2018, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

This is a revised version of our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 58 vertical matters beginning in 1994 through July 2018. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 Journal of Antitrust Enforcement 1 (2016).


Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain Aug 2018

Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain

San Diego Law Review

In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is ...


Serial Collusion By Multi-Product Firms, Michael Meurer, William Kovacic, Robert Marshall Aug 2018

Serial Collusion By Multi-Product Firms, Michael Meurer, William Kovacic, Robert Marshall

Faculty Scholarship

We provide empirical evidence that many multi-product firms have each participated in several cartels over the past 50 years. Standard analysis of cartel conduct, as well as enforcement policy, is rooted in the presumption that each cartel in which a given firm participates is a singular activity, independent of other cartel conduct by the firm. We argue that this analysis is deficient in many respects in the face of serial collusion by multi-product firms. We offer policy recommendations to reign in serial collusion, including a mandatory coordinated effects review for any merger involving a serial colluder, regardless of the apparent ...


Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras Aug 2018

Taking It To The Limit: Shifting U.S. Antitrust Policy Toward Standards Development, Jorge L. Contreras

Utah Law Faculty Scholarship

In November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too ...


Intellectual Property And The Economics Of Product Differentiation, Christopher S. Yoo Jul 2018

Intellectual Property And The Economics Of Product Differentiation, Christopher S. Yoo

Faculty Scholarship at Penn Law

The literature applying the economics of product differentiation to intellectual property has been called the most important development in the economic analysis of IP in years. Relaxing the assumption that products are homogeneous yields new insights by explaining persistent features of IP markets that the traditional approaches cannot, challenging the extent to which IP allows rightsholders to earn monopoly profits, allowing for sources of welfare outside of price-quantity space, which in turn opens up new dimensions along which intellectual property can compete. It also allows for equilibria with different welfare characteristics, making the tendency towards systematic underproduction more contingent and ...


The Policy Challenge Of Artificial Intelligence, James Bessen Jul 2018

The Policy Challenge Of Artificial Intelligence, James Bessen

Faculty Scholarship

New "artificial intelligence" (AI) technology promises to bring dramatic social and economic changes, demanding major policy changes. In intellectual property and antitrust law, AI will exacerbate a damaging trend: across all major sectors of the economy, proprietary information technology is increasing the market dominance of large firms. This trend might not seem like bad news, but it is evidence of a slowdown in the spread of technical knowledge throughout the economy. The result is rising industry concentration, slower productivity growth and growing wage inequality. The key challenge to IP and antitrust policy will be counter this trend yet maintain innovation ...


Rwu First Amendment Blog: David Logan's Blog: Media Centralization Imperils Marketplace Of Ideas 04-05-2018, David A. Logan Apr 2018

Rwu First Amendment Blog: David Logan's Blog: Media Centralization Imperils Marketplace Of Ideas 04-05-2018, David A. Logan

Law School Blogs

No abstract provided.


Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan Apr 2018

Law School News: 'Marketplace Of Ideas' Imperiled (04-05-2018), David A. Logan

Life of the Law School (1993- )

No abstract provided.


Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari Mar 2018

Healthcare Mergers And Acquisitions In An Era Of Consolidation: A Review And A Call For Agency Collaboration In Antitrust Enforcement, Anna Molinari

Pepperdine Law Review

Healthcare companies are consolidating at an alarming rate. From hospitals, to providers’ offices, to insurance companies, there are increasingly fewer consumer choices and more monopolies, which calls for heightened antitrust enforcement. Interestingly, antitrust enforcement authority in the healthcare industry is shared between the Federal Trade Commission (FTC), which presides over hospital and provider mergers, and the Department of Justice (DOJ), which presides over health insurance mergers. Although the FTC has challenged many hospital and provider mergers, the DOJ has only challenged six health insurance mergers. Furthermore, last year, the DOJ ultimately approved all health insurance mergers. In 2017, in United ...


Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp Feb 2018

Anticompetitive Mergers In Labor Markets, Ioana Marinescu, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Mergers of competitors are conventionally challenged under the federal antitrust laws when they threaten to lessen competition in some product or service market in which the merging firms sell. Mergers can also injure competition in markets where the firms purchase. Although that principle is widely recognized, very few litigated cases have applied merger law to buyers. This article concerns an even more rarefied subset, and one that has barely been mentioned. Nevertheless, its implications are staggering. Some mergers may be unlawful because they injure competition in the labor market by enabling the post-merger firm anticompetitively to suppress wages or salaries ...


Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, Stephanie M. Greene Feb 2018

Regulating The Ncaa: Making The Calls Under The Sherman Antitrust Act And Title Ix, Stephanie M. Greene

Maine Law Review

The National Collegiate Athletic Association (NCAA) is a powerful force in shaping the intercollegiate athletic programs of some 1200 public and private colleges. Courts have recognized the NCAA as an entity that serves the important and admirable functions of maintaining the amateur status of intercollegiate athletics and the integrity of the educational process for the student-athlete, while providing a fair and equitable competitive environment. Most of the NCAA's rules and regulations are promulgated to promote and maintain these goals. Nevertheless, both student-athletes and coaches have challenged NCAA rules in the courts, claiming that certain rules discriminate on the basis ...


Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro Jan 2018

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective ...


Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp Jan 2018

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...


Progressive Antitrust, Herbert J. Hovenkamp Jan 2018

Progressive Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Several American political candidates and administrations have both run and served under the “progressive” banner for more than a century, right through the 2016 election season. For the most part these have pursued interventionist antitrust policies, reflecting a belief that markets are fragile and in need of repair, that certain interest groups require greater protection, or in some cases that antitrust policy is an extended arm of regulation. This paper argues that most of this progressive antitrust policy was misconceived, including that reflected in the 2016 antitrust plank of the Democratic Party. The progressive state is best served by a ...


Reasonable Patent Exhaustion, Herbert J. Hovenkamp Jan 2018

Reasonable Patent Exhaustion, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is ...


Extending Employee Protections To Gig-Economy Workers Through The Entrepreneurial Opportunity Test Of Fedex Home Delivery, Peter Gibbins Jan 2018

Extending Employee Protections To Gig-Economy Workers Through The Entrepreneurial Opportunity Test Of Fedex Home Delivery, Peter Gibbins

Washington University Journal of Law & Policy

This note by Peter Gibbins explores the legal challenges both companies and workers face in the “gig-economy” – the digital marketplace of companies like Uber, Lyft, Taskrabbit, and more. Specifically, Gibbins highlights the problems inherent in classifying workers as “independent contractors” as opposed to employees. The classification of “independent contractor” significantly limits the rights and protections workers receive, while providing companies flexibility and increased savings by reducing or eliminating employee benefits. While unionization may help workers negotiate better working conditions, pay, and benefits, independent contractors attempting to organize face significant legal hurdles under the National Labor Relations Act and antitrust laws ...


Antitrust And Inequality: The Problem Of Super-Firms, Shi-Ling Hsu Jan 2018

Antitrust And Inequality: The Problem Of Super-Firms, Shi-Ling Hsu

Scholarly Publications

Increasing concern about economic inequality has coincided with an unsettling ascendancy of some large, technologically integrated “super-firms,” which have grabbed large market shares in multiple markets, and cast doubt upon the future viability of a wide range of businesses, many of which have been important local and regional employers. It is thus unsurprising that these two trends have knocked together in public discourse, and that antitrust law been proposed as one way of helping to remedy economic inequality. This essay notes that antitrust law is generally a poor fit for reducing economic inequality, but one aspect is worthy of note ...


The Uncertainty Of Sun Printing, George M. Cohen Jan 2018

The Uncertainty Of Sun Printing, George M. Cohen

Touro Law Review

No abstract provided.