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Articles 31 - 60 of 90
Full-Text Articles in Law
Sector-Specific Competition Enforcement At The Fcc, Jonathan Baker
Sector-Specific Competition Enforcement At The Fcc, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
This comment explains how and why sector-specific enforcement by the Federal Communications Commission (FCC) complements generalist competition enforcement by the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC), to the benefit of competition in the communications industry. It illustrates ways in which a sector-specific agency such as the FCC can foster competition by comparing merger reviews by the FCC and DOJ in the wake of the 1996 Telecommunications Act.
Comcast/Nbcu: The Fcc Provides A Roadmap For Vertical Merger Analysis, Jonathan Baker
Comcast/Nbcu: The Fcc Provides A Roadmap For Vertical Merger Analysis, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
The FCC’s analysis of the Comcast-NBCU transaction fills a gap in the contemporary treatment of vertical mergers by providing a roadmap for courts and litigants addressing the possibility of anticompetitive exclusion. The FCC identified the factors any judicial or administrative tribunal would likely consider today in analyzing whether a vertical merger would lead to anticompetitive input or customer foreclosure, and a range of economic methods potentially relevant to applying that template to the facts of a transaction. Notwithstanding the difference between administrative adjudication under a public interest standard and judicial decision-making under the Clayton Act, the legal framework and economic …
Using Competition Law To Promote Access To Knowledge, Sean Flynn
Using Competition Law To Promote Access To Knowledge, Sean Flynn
Contributions to Books
One of the points of convergence among the many strands of the A2K movement is resistance to the one-size-fits-all ratcheting up of intellectual property provisions around the world. The resistance is grounded in analysis showing that intellectual property rules often create social costs that far outweigh their intended benefits. Much of the A2K movement’s advocacy for limitations of intellectual property rights is located within the field of intellectual property law – promoting the inclusion and use of balancing mechanisms within the laws granting intellectual property rights. But intellectual property rights are also shaped and limited by their interaction with other …
Preserving A Political Bargain: The Political Economy Of The Non-Interventionist Challenge To Monopolization Enforcement, Jonathan Baker
Preserving A Political Bargain: The Political Economy Of The Non-Interventionist Challenge To Monopolization Enforcement, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
The antitrust rules governing exclusionary conduct by dominant firms are among the most controversial in U.S. competition policy. During the first decade of the twenty-first century, they were debated in three arenas, involving legal policy, economic policy, and politics. In each arena, the dispute mainly arose as criticism of traditional standards by advocates of less intervention. Viewed through a political economy lens, the controversy can be understood as a potential challenge to an informal political bargain reached during the 1940s by which competition was adopted as national economic policy in preference to regulation or laissez-faire. From this perspective, and applying …
International Disparities Panel, Sean Flynn
International Disparities Panel, Sean Flynn
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray
Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray
American University Law Review
No abstract provided.
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek
American University Law Review
Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …
'Dynamic Competition' Does Not Excuse Monopolization, Jonathan Baker
'Dynamic Competition' Does Not Excuse Monopolization, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
This comment on a forthcoming article by Keith Hylton and David Evans explains why considerations of "dynamic competition" do not argue against antitrust enforcement. While the prospect of achieving monopoly may foster innovation, that observation misleads as to appropriate antitrust policy unless qualified by the observation that the push of competition generally spurs innovation more than the pull of monopoly. Moreover, the longstanding doctrinal rule that mere monopoly pricing is not illegal should not be read as demonstrating that antitrust law values monopolies for their role in promoting innovation.
Efficiencies And High Concentration: Heinz Proposes To Acquire Bech-Nut (2001), Jonathan Baker
Efficiencies And High Concentration: Heinz Proposes To Acquire Bech-Nut (2001), Jonathan Baker
Contributions to Books
This chapter discusses the FTC’s court challenge, in 2001, to the proposed merger of two baby food producers, Heinz and Beech-Nut. The chapter describes the economic issues at stake in the litigation, with a particular focus on the possibility that efficiencies could justify a merger in an industry in which post-merger concentration would be high.
Merger To Monopoly To Serve A Single Buyer: Comment, Jonathan Baker
Merger To Monopoly To Serve A Single Buyer: Comment, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation, Jonathan Baker
Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
The relationship between competition and innovation is the subject of a familiar controversy in economics, between the Schumpeterian view that monopolies favor innovation and the opposite view, often associated with Kenneth Arrow, that competition favors innovation. Taking their cue from this debate, some commentators reserve judgment as to whether antitrust enforcement is good for innovation. Such misgivings are unnecessary. The modern economic learning about the connection between competition and innovation helps clarify the types of firm conduct and industry settings where antitrust interventions are most likely to foster innovation. Measured against this standard, contemporary competition policy holds up well. Today's …
Market Definition: An Analytical Overview, Jonathan Baker
Market Definition: An Analytical Overview, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
This essay surveys important issues in antitrust market definition. It identifies settings in which market definition is useful, and evaluates methods of defining markets. It considers whether markets should be defined with respect to demand substitution only or whether supply substitution also should count. It addresses practical issues in defining markets, including the probative value of various types of evidence, how much buyer substitution is too much, application of the market definition algorithm of the Horizontal Merger Guidelines, the Cellophane fallacy, and the advantages and disadvantages of defining submarkets. It also evaluates several controversial approaches to market definition, including price …
A Turning Point In Merger Enforcement: Federal Trade Commission V. Staples, Jonathan B. Baker, Robert Pitofsky
A Turning Point In Merger Enforcement: Federal Trade Commission V. Staples, Jonathan B. Baker, Robert Pitofsky
Contributions to Books
This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC's successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.
Understanding Single-Firm Behavior: Empirical Perspectives Session, Jonathan Baker, Luke Froeb, Robert Marshall, Wally Mullin, David Reitman, F. Michael Scherer, Clifford Winston
Understanding Single-Firm Behavior: Empirical Perspectives Session, Jonathan Baker, Luke Froeb, Robert Marshall, Wally Mullin, David Reitman, F. Michael Scherer, Clifford Winston
Presentations
In 2006 and 2007, the Antitrust Division and the Federal Trade Commission (FTC) cohosted hearings on single-firm conduct and antitrust law. For more information, consult the hearings information page or contact the Legal Policy Section at singlefirmconduct@usdoj.gov.
Economic Evidence In Antitrust: Defining Markets And Measuring Market Power In Paolo Buccirossi, Jonathan Baker, Timothy Bresnahan
Economic Evidence In Antitrust: Defining Markets And Measuring Market Power In Paolo Buccirossi, Jonathan Baker, Timothy Bresnahan
Articles in Law Reviews & Other Academic Journals
This paper addresses an important aspect of the interdisciplinary collaboration between law and economics: the use antitrust courts can and should make of empirical industrial organization economics, in light of the expansion of empirical knowledge generated during the last few decades. First we show how courts can apply what economists have learned about identification of alternative theories of industry structure and firm strategy to the problems of defining markets and determining whether market power has been exercised. We emphasize that the same analytic issues arise regardless of whether the evidence on these concepts is quantitative or qualitative. Second we show …
Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru
Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru
Articles in Law Reviews & Other Academic Journals
Professional sports organizations' relationships with their players are, like other employer-employee relationships, subject to scrutiny under the antidiscrimination mandates embedded in Title VII of the Civil Rights Act of 1964. Professional sports organizations are, however, unique among employers in many respects. Most notably, unlike other employers, professional sports organizations attract avid supporters who identify deeply with the teams and their players. To the extent an organization racially discriminates, therefore, such discrimination creates the risk that fans will identify with the homogenous or racially disproportionate roster that results. The consequences of such race-based team identification are wide-reaching and potentially tragic. Through …
Competition Policy As A Political Bartain, Jonathan Baker
Competition Policy As A Political Bartain, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
Competition policy in the U.S. may be understood as a self-enforcing political bargain emerging from a repeated political interaction between two large and diffuse interest groups, consumers and producers. Absent such a bargain, regulatory policy would fluctuate between pro-producer policies that tolerate the exercise of market power and pro-consumer policies that systematically redistribute surplus from producers to consumers. This perspective is consistent with the broad contours of the historical U.S. experience with antitrust, particularly with the continuity in antitrust enforcement and decline in the political salience of competition policy since the 1940s. The adoption of Chicago school views during the …
Balancing Deterrence, Comity Considerations, And Judicial Efficiency: The Use Of The D.C. Circuit's Proximate Cause Standards For Determining Subject Matter Jurisdiction Over Extraterritorial Antitrust Cases, Stephanie Casy
American University Law Review
No abstract provided.
Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn
Dispelling Myths: A Real World Perspective On Trinko, Sean Flynn
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker
Two Modern Antitrust Moments: A Comment On Fenton And Kwoka, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Introduction To Symposium On Integrating New Economic Learning With Antitrust Doctrine, Jonathan Baker
Introduction To Symposium On Integrating New Economic Learning With Antitrust Doctrine, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker
Roundtable With Former Directors Of The Bureau Of Economics, Jonathan Baker
Presentations
The roundtable commemorates the 100th anniversary of the FTC's predecessor agency, the Bureau of Corporations. It was sponsored by the FTC's Bureau of Economics (BE) and focused on BE history and contributions of BE and economic analysis to antitrust and consumer protection enforcement, and to research and economic knowledge and policy. BE was featured because the original functions of the Bureau of Corporations were to collect information, to conduct industry and policy research, to prepare reports at the request of the Congress and the President. The panelists for the roundtable consisted of former BE Directors and Acting Directors from the …
Why Did The Antitrust Agencies Embrace Unilateral Effects, Jonathan Baker
Why Did The Antitrust Agencies Embrace Unilateral Effects, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Economists' Roundtable, Jonathan Baker, Philip Nelson, Janusz Ordover, Dennis Carlton
Economists' Roundtable, Jonathan Baker, Philip Nelson, Janusz Ordover, Dennis Carlton
Presentations
Moderator for the Economists' Roundtable
Competitive Price Discrimination: The Exercise Of Market Power Without Anticompetitive Effects (Comment On Klein And Wiley), Jonathan Baker
Competitive Price Discrimination: The Exercise Of Market Power Without Anticompetitive Effects (Comment On Klein And Wiley), Jonathan Baker
Articles in Law Reviews & Other Academic Journals
A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's proposal …
Mavericks, Mergers, And Exclusion: Proving Coordinated Competitive Effects Under The Antitrust Laws, Jonathan Baker
Mavericks, Mergers, And Exclusion: Proving Coordinated Competitive Effects Under The Antitrust Laws, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Symposium: Antitrust At The Millennium (Part Ii), Jonathan Baker
Symposium: Antitrust At The Millennium (Part Ii), Jonathan Baker
Articles in Law Reviews & Other Academic Journals
This issue features Part II of the Antitrust Law Journal's Symposium on Antitrust at the Millennium. As with Part I, which appeared in Volume 68, Issue 1 (2000), most Symposium authors use a decision or other significant text from antitrust's past as a springboard to discuss some aspect of antitrust's future. This group of Symposium essays is being published in the wake of a U.S. election that has shifted control of the Executive Branch of the federal government from Democrats to Republicans. Yet the broad themes and challenges pursed by Symposium authors are likely to remain central to antitrust regardless …
New Horizons In Cartel Detection, Jonathan Baker
New Horizons In Cartel Detection, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Should Concentration Be Dropped From The Merger Guidelines?, Jonathan Baker, Steven Salop
Should Concentration Be Dropped From The Merger Guidelines?, Jonathan Baker, Steven Salop
Articles in Law Reviews & Other Academic Journals
As members of the ABA Antitrust Section's Task Force on Fundamental Theory, we are pleased to provide a briefdiscussion of the appropriate role of market concentration in the review of mergers under the antitrust laws. Thispaper, organized in four main parts, will offer some suggestions for revising the Department of Justice and FederalTrade Commission Horizontal Merger Guidelines. A final section of this work will analyze whether it would bepreferable to conduct merger analysis by applying Professor Michael E. Porter's business strategy framework ratherthan the Merger Guidelines.
Stepping Out In An Old Brown Shoe: In Qualified Praise Of Submarkets, Jonathan Baker
Stepping Out In An Old Brown Shoe: In Qualified Praise Of Submarkets, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.