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Consumer Welfare & The Rule Of Law: The Case Against The New Populist Antitrust Movement, Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout, Joshua D. Wright 2020 Pepperdine University

Consumer Welfare & The Rule Of Law: The Case Against The New Populist Antitrust Movement, Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout, Joshua D. Wright

Pepperdine Law Review

Populist antitrust notions suddenly are fashionable again. At their core is the view that antitrust law is responsible for a myriad of purported socio-political problems plaguing society today, including but not limited to rising income inequality, declining wages, and increasing economic and political concentration. Seizing on Americans’ fears about changes to the modern US economy, proponents of populist antitrust policies assert the need to fundamentally reshape how we apply our nation’s competition laws in order to implement a variety of prescriptions necessary to remedy these perceived social ills. The proposals are varied and expansive but have the unifying theme ...


The Economics Of Antitrust Bundling, Rajeev R. Bhattacharya 2020 Pepperdine University

The Economics Of Antitrust Bundling, Rajeev R. Bhattacharya

The Journal of Business, Entrepreneurship & the Law

This article explains the economics and antitrust of bundling. I first show that popular arguments such as demand complementarities, economies of scope, and price discrimination are not sufficient. I then detail potentially anticompetitive factors such as leverage and opacity. I then use simple examples to show how variation in consumer valuations explains bundling and is not anticompetitive. Finally, I explore other business judgment rule explanations for bundling.


Antitrust Law In The New Economy By Mark R Patterson, Thomas Dicsi 2020 Osgoode Hall Law School of York University

Antitrust Law In The New Economy By Mark R Patterson, Thomas Dicsi

Osgoode Hall Law Journal

THE DRAFTERS OF THE SHERMAN ANTITRUST ACT of 1890 would understandably be perplexed by the complexity of modern economic systems. These drafters, including the Act’s namesake, US Senator John Sherman, were operating in a world where protectionist economics dominated. Karl Marx had just recently completed his critique of untethered capitalism, Das Kapital, and international trade was largely confined to the exchange of raw materials. These drafters were responding to an issue very topical to the late-nineteenth century— John D. Rockefeller’s monopoly over American oil. The situation came to a head in 1882 when Samuel Dodd, the attorney to ...


How Much You Talk Matters: Cheap Talk And Collusion In A Bertrand Oligopoly Game, Jun Yeong Lee, Elizabeth Hoffman 2020 Iowa State University

How Much You Talk Matters: Cheap Talk And Collusion In A Bertrand Oligopoly Game, Jun Yeong Lee, Elizabeth Hoffman

Economics Working Papers

This study investigates the impact of cheap talk on price in a repeated Bertrand oligopoly experiment. Each participant plays 20 rounds. Participants are placed in three-person bidding groups where the lowest bid wins. During the first 10 rounds, participants are not allowed to communicate with each other. All three-person groups converged to the zero-profit equilibrium in the first 10 periods. We then play another 10 rounds where participants can text with one another using an instant message system. Some groups were allowed to text before every round, some to text before every other round, some to text every third round ...


Fascism And Monopoly, Daniel A. Crane 2020 University of Michigan Law School

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

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 Branch, this ...


Stealth Commoditization: The Misuse Of Smartphone Antitrust, Jonathan M. Barnett 2020 University of Southern California

Stealth Commoditization: The Misuse Of Smartphone Antitrust, Jonathan M. Barnett

University of Southern California Legal Studies Working Paper Series

This contribution condenses the author’s previous detailed analyses of antitrust and patent policies in global smartphone markets. The discussion comprises three elements. First, it identifies the key constituencies in the smartphone ecosystem and the role each constituency plays in the technology supply chain. Second, it describes how courts’ and regulators’ interventions in the smartphone market rest on empirically unsubstantiated theories of competitive harm while advancing the private interests of producer-firms and producer-jurisdictions in reduced technology input costs. Third, it shows how this implicit renegotiation of licensing arrangements between innovators and implementers endangers the legal infrastructure of reliable intellectual property ...


House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp 2020 University of Pennsylvania Law School

House Judiciary Inquiry Into Competition In Digital Markets: Statement, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This is a response to a query from the Judiciary Committee of the U.S. House of Representatives, requesting my views about the adequacy of existing antitrust policy in digital markets.

The statutory text of the United States antitrust laws is very broad, condemning all anticompetitive restraints on trade, monopolization, and mergers and interbrand contractual exclusion whose effect “may be substantially to lessen competition or tend to create a monopoly.” Federal judicial interpretation is much narrower, however, for several reasons. One is the residue of a reaction against excessive antitrust enforcement in the 1970s and earlier. However, since that time ...


Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande 2020 University of Baltimore School of Law

Submission Of Robert H. Lande To House Judiciary Antitrust Subcommittee Investigation Of Digital Platforms, Robert H. Lande

All Faculty Scholarship

The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms:

1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My ...


Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley 2020 Georgetown University Law Center

Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. 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).


Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel 2020 Harvard University's Berkman Klein Center for Internet & Society

Libra: A Concentrate Of "Blockchain Antitrust", Thibault Schrepel

Michigan Law Review Online

Blockchains promise to decentralize the economy, bypassing trusts in favor of decentralized communities. The World Economic Forum predicts that 10 percent of the global gross domestic product will be stored on block-chain by 2027. Gartner further prophesizes that blockchain will create $3.1 trillion worth of business value by 2030. Even if that prediction turns out to be too optimistic, blockchain’s legal implications cannot be neglected.


Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop 2020 University of Southern California School of Law

Asymmetric Stakes In Antitrust Litigation, Erik Hovenkamp, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level--a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem ...


Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch 2020 Cleveland State University

Sherman's Missing "Supplement": Prosecutorial Capacity, Agency Incentives, And The False Dawn Of Antitrust Federalism, Daniel E. Rauch

Cleveland State Law Review

When the Sherman Act passed in 1890, it was widely expected that it would operate primarily as a "supplement" to vigorous state-level antitrust enforcement of state antitrust statutes. This did not happen. Instead, confounding the predictions of Congress, the academy, and the trusts themselves, state antitrust enforcement overwhelmingly failed to take root in the years between 1890 and the First World War. To date, many scholars have noted this legal-historical anomaly. None, however, have rigorously or correctly explained what caused it. This Article does.

Using historical and empirical research, this Article establishes that the best explanation for the early failure ...


Due Process In Antitrust Enforcement Through The Lens Of Comparative Law, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang 2020 University of Pennsylvania Law School

Due Process In Antitrust Enforcement Through The Lens Of Comparative Law, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

Faculty Scholarship at Penn Law

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and ...


The 2020 Vertical Merger Guidelines: A Suggested Revision (March 26, 2020), Steven C. Salop 2020 Georgetown University Law Center

The 2020 Vertical Merger Guidelines: A Suggested Revision (March 26, 2020), Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The FTC and DOJ requested comments on their draft Vertical Merger Guidelines in January 2020. This article is a complete alternative set of suggested Vertical Merger Guidelines that reflects and supplements the approach explained in the comments submitted by the author along with Jonathan. Baker, Nancy Rose and Fiona Scott Morton, as well as their other comments, and might be read in conjunction with those comments. This suggested revision of the Agencies’ draft expands the list of potential competition harms and provides illustrative examples. It expands and unifies the discussion and treatment of potential competitive benefits. It deletes the quasi-safe ...


Redeeming The Supreme Court: The Structure Behind The Baseball Trilogy And The Scope Of The Baseball Antitrust Exemption, Christian L. Neufeldt 2020 Harvard University, Extension School

Redeeming The Supreme Court: The Structure Behind The Baseball Trilogy And The Scope Of The Baseball Antitrust Exemption, Christian L. Neufeldt

Journal of Intellectual Property Law

This article conducts a systematic, methodological, and historical analysis of the baseball trilogy to elucidate its underlying structure. It adds to the existing scholarship by analyzing the later decisions in the context of their predecessors and exposing the interplay within the baseball trilogy. As a result, this article argues, against nearly universal opposition, that the Supreme Court issued well-considered opinions in each case and created a logical structure that underlies the entire trilogy. This article then scrutinizes the different approaches taken by the lower courts to delimitate the baseball antitrust exemption. It uses its structural findings on the baseball trilogy ...


Designing Regulation For Mobile Financial Markets, Ilya Beylin 2020 University of California, Irvine School of Law

Designing Regulation For Mobile Financial Markets, Ilya Beylin

UC Irvine Law Review

Prior scholarship advocates for international harmonization of financial regulation as a solution to the problem of cross-border regulatory arbitrage. The scholarship is theoretical and rests on the contention that financial institutions can simply depart from an unfavorable regulatory regime. This Paper contributes an empirical foundation to the concern that financial institutions relocate following regulation, while also deeply qualifying claims that effective regulation requires international harmonization.

Using experience from swap markets following the Dodd-Frank Act, this Article provides the first empirical evidence that financial institutions migrate in response to derivatives regulation. This Article shows that U.S. banks substantially shifted inter-bank ...


The Race To The Middle, William Magnuson 2020 Texas A&M University School of Law

The Race To The Middle, William Magnuson

Notre Dame Law Review

How does federalism affect the quality of law? It is one of the fundamental questions of our constitutional system. Scholars of federalism generally fall into one of two camps on the question. One camp argues that regulatory competition between states leads to a “race to the bottom,” in which states adopt progressively worse laws in order to pander to powerful constituencies. The other camp, conversely, argues that regulatory competition leads to a “race to the top,” incentivizing states to adopt progressively better laws in the search for more desirable outcomes for their constituencies. Despite their apparent differences, however, both the ...


The Inefficiency Of Quasi–Per Se Rules: Regulating Information Exchange In Eu And U.S. Antitrust Law, Kenneth KHOO, Jerrold Tsin Howe SOH 2020 Singapore Management University

The Inefficiency Of Quasi–Per Se Rules: Regulating Information Exchange In Eu And U.S. Antitrust Law, Kenneth Khoo, Jerrold Tsin Howe Soh

Research Collection School Of Law

It is well understood that the exchange of information between horizontal competitors can violate competition law provisions in both the European Union (EU) and the United States, namely, article 101 of the Treaty on the Functioning of the European Union and section 1 of the Sherman Act. However, despite ostensible similarities between EU and U.S. antitrust law concerning interfirm information exchange, substantial differences remain. In this article, we make a normative argument for the U.S. antitrust regime's approach, on the basis that the United States’ approach to information exchange is likely to be more efficient than the ...


Recommendations And Comments On The Draft Vertical Merger Guidelines, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton 2020 American University Washington College of Law

Recommendations And Comments On The Draft Vertical Merger Guidelines, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

These recommendations and comments respond to the request by the Federal Trade Commission and the Department of Justice’s Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. We commend the agencies for updating the 1984 non-horizontal merger guidelines by recognizing the substantial advances in economic thinking about vertical mergers in the thirty-five years since those guidelines were issued. Our comments emphasize four issues: (i) the treatment of the elimination of double marginalization (“EDM”), particularly that the draft vertical merger guidelines appear inappropriately to make proof of cognizability part of the agencies burden and that they appear ...


The Firm Exemption And The Hierarchy Of Finance In The Gig Economy, Sanjukta Paul, Nathan Tankus 2020 University of St. Thomas, Minnesota

The Firm Exemption And The Hierarchy Of Finance In The Gig Economy, Sanjukta Paul, Nathan Tankus

University of St. Thomas Law Journal

No abstract provided.


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