Antitrust and Trade Regulation Commons^™

A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun

Faculty Scholarship

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …

Brandeisian Banking, Kathryn Judge

Faculty Scholarship

Banking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the …

Do Legal Origins Predict Legal Substance?, Anu Bradford, Yun-Chien Chang, Adam S. Chilton, Nuno Garoupa

Faculty Scholarship

There is a large body of research in economics and law suggesting that the legal origin of a country – that is, whether its legal regime is based on English common law or French, German, or Nordic civil law – profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly …

The Curse Of Bigness: New Deal Supplement, Tim Wu

Faculty Scholarship

This is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.

It is meant to be read together with the larger volume, but can also be read separately.

Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …

Amazon – An Infrastructure Service And Its Challenge To Current Antitrust Law, Lina M. Khan

Faculty Scholarship

This chapter maps out facets of Amazon’s power. In particular, it traces the sources of Amazon’s growth and analyzes the potential effects of its dominance. Doing so enables us to make sense of the company’s business strategy and illuminates anticompetitive aspects of its structure and conduct. This analysis reveals that the current framework in antitrust — specifically its equating competition with “consumer welfare,” typically measured through short- term effects on price and output — fails to capture the architecture of market power in the 21st- century marketplace. In other words, the potential harms to competition posed by Amazon’s dominance are …

The “Protection Of The Competitive Process” Standard, Tim Wu

Faculty Scholarship

The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”

After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, Tim Wu

Faculty Scholarship

The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?

I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws. …

Scalia And Antitrust, Keith N. Hylton

Faculty Scholarship

Ask almost anyone in Massachusetts, or in any other predominantly liberal American state, what they think about Justice Antonin Scalia, and you are bound to hear comments, not a few of them derisory, about original intent as an approach to constitutional law. This was true long before his death on February 13, 2016, and is still true today. The theory of originalism, the notion that the Constitution should be interpreted in accordance with the intent of its framers, had become so closely associated with Scalia that the man had become the living embodiment of the theory.

Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec

Faculty Scholarship

In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.

Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, …

Elhauge On Tying: Vindicated By History, Barak D. Richman, Steven W. Usselman

Faculty Scholarship

No abstract provided.

The Lawful Acquisition And Exercise Of Monopoly Power And Its Implications For The Objectives Of Antitrust, Keith N. Hylton, David S. Evans

Faculty Scholarship

The antitrust laws of the United States have, from their inception, allowed firms to acquire significant market power, to charge prices that reflect that market power, and to enjoy supra-competitive returns. This article shows that this policy, which was established by the U.S. Congress and affirmed repeatedly by the U.S. courts, reflects a tradeoff between the dynamic benefits that society realizes from allowing firms to secure significant rewards, including monopoly profits, from making risky investments and engaging in innovation; and the static costs that society incurs when firms with significant market power raise price and curtail output. That tradeoff results …

Reply To Grimes: Illusory Distinctions And Schisms In Tying Law, Keith N. Hylton, Michael Salinger

Faculty Scholarship

We applaud Professor Grimes's thoughtful analysis of the D.C. Circuit's decision in United States v. Microsoft (Microsoft III) and of our article. Professor Grimes has entered into precisely the debate that we argued should lay the foundation for the law on tying. In addition, one of Professor Grimes's themes is that the issues of tying law cannot be viewed in isolation but, instead, within a coherent philosophy of antitrust. We agree with him on that principle.

Procompetitive Theories Of Vertical Control, Andy C.M. Chen, Keith N. Hylton

Faculty Scholarship

In this paper, we survey procompetitive theories of vertical arrangements, and examine how these theories could be organized to aid interpretation of antitrust law. Given the ever-expanding body of literature in this area, this is a daunting task which we cannot hope to complete in a single article. Nevertheless, we find a market-structure based survey a helpful approach. We have introduced various procompetitive theories in connection with the market structures in which they are likely to be applicable, though we do not claim they could only operate within a specific market context. Our approach should aid antitrust courts in setting …