Law Commons^™

The Future Of International Antitrust And Improving Antitrust Agency Capacity, Daniel D. Sokol

NULR Online

No abstract provided.

The Analysis Of Market Dominance And Restrictive Practices Under German Antitrust Law In Light Of Ec Antitrust Law, Anca Daniela Chirita

Anca Daniela Chirita

This article analyses key features of the German Act Against Restraints of Competition (section 19), including the more severe provisions of section 20, and aims to discuss the economic freedom of competition approach to the abuse of a dominant market position. Furthermore, the article details with specific examples of abuse in cases heard by the Federal Cartel Office, with particular focus upon predatory pricing, cross-subsidisation, rebates, exclusive contracts, tying and bundling, refusal abuses, hindrance and abuse of economic dependence. Emphasis is placed upon differences in the implementation of antitrust law and upon answering the question of whether more severe rules …

China And India Competition Laws: A Comparison, Giulia Piombi

Giulia Piombi

No abstract provided.

Essential Facilities And Trinko: Should Antitrust And Regulation Be Combined?, Timothy J. Brennan

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The Supreme Court's 2004 decision in Trinko represented a radical change from prior doctrine ensuring that antitrust laws applied in regulated industries. The change resulted from a failure to appreciate that regulation and antitrust can be complements. Regulation can boost the value of antitrust by creating incentives to refuse to deal in order to reap monopoly profit otherwise proscribed by regulation. Ironically, the essential facilities doctrine rejected by the Trinko court and the Trinko decision …

The Bell System Divestiture: Background, Implementation, And Outcome, Joseph H. Weber

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

By 1982, the Bell System had operated an integrated telecommunications network connecting almost everyone in the United States for almost 100 years. That system had been designed and operated as a monopoly, but by the 1960s, new technologies were being developed which led to pressure to allow competitive entry. After many incremental changes, the Bell System divestiture--complete separation of long-distance service and manufacturing fiom local service provision-was finally adopted as a way of implementing this …

Will Access Regulation Work?, Gerald R. Faulhaber

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The FCC is transitioning from a rate regulation regime to an access regime. A rate regulation regime gives all customers full access to network facilities (common carrier) at regulated rates-generally, rate base rate of return regulation. An access regime is one in which all competitors are given full access to incumbents' networks, with little or no retail rate regulation, thereby allowing competition (over incumbents' networks) to discipline the market. Is this a good idea? Is …

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Did At&T Die In Vain? An Empirical Comparison Of At&T And Bell Canada, Eli M. Noam

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Did the Divestiture of AT&T achieve its purpose? It is helpful to turn to Canada, whose telecommunications industry and regulation were similar but which did not experience a divestiture. Since AT&T was split up in 1982-4, national telecom market concentration in the U.S. has bounced back to a national duopoly structure, with an HHI concentration index of 2,986, higher than for Canada's similar national duopoly with an HHI of 2,463. Local telecom wireline competition is …

The Decline And Fall Of At&T: A Personal Recollection, Richard A. Posner

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

In his luncheon talk at the conference, presented here in slightly revised form, Judge Posner discusses his personal involvement with the events that led up the Justice Department's major antitrust suit against AT&T that culminated in the breakup of the telephone monopoly. The stages of his involvement included participation in the work of President Johnson's Task Force on Communications Policy, consulting for AT&T in the lawsuit itself, and his negative advice to the chairman of …

An Oligopoly Analysis Of At&T'S Performance In The Wireline Long- Distance Markets After Divestiture, Paul W. Macavoy

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

The antitrust law books promise competition from breaking up the monopoly firm in a Sherman Act case remedy. Not in this case; the question is what "kind" of oligopoly.

Toward A Unified Theory Of Access To Local Telephone Networks, Daniel F. Spulber, Christopher S. Yoo

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Over the past several decades, regulatory authorities have imposed an increasingly broad array of access requirements on local telephone providers. In so doing, policymakers typically applied previous approaches to access regulation without fully considering whether the regulatory justifications used in favor of those previous access requirements remained valid. They also allowed each access regime to be governed by a different pricing methodology and set access prices in a way that treated each network component as …

The At&T Consent Decree: In Praise Of Interconnection Only, Richard A. Epstein

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

This article examines the consequences of the Bell consent decree of 1982. In the short run, the decree sought to end the AT&T's Corporate domination of the telecommunications network. But it did so in an overambitious way that chose to break up the basic system into constituent parts even though the preferred remedy was a more modest initiative that would have opened the network up to interconnection by rival carriers. In charting the wrong path, …

Are Regulators Forward-Looking? The Market Price Of Copper Versus The Regulated Price Of Mandatory Access To Unbundled Local Loops In Telecommunications Networks, Jerry A. Hausman, J. Gregory Sidak, Timothy J. Tardiff

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

Around the world, since 1996, regulators have mandated that incumbent local exchange carriers (ILECs) offer competitors access to their network at regulated prices that reflect forward-looking cost. Regulated prices for unbundled network elements are based on total element long-run incremental cost (TELRIC), which in turn is calculated using engineering models that estimate the costs of a hypothetical carrier employing the most efficient telecommunications technology currently available and the lowest cost network configuration, given the existing …

Reexamining The Legacy Of Dual Regulation: Reforming Dual Merger Review By The Doj And The Fcc, Philip J. Weiser

Federal Communications Law Journal

"The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective."' Conference held at the University of Pennsylvania Law School on April 18-19, 2008.

A central challenge for competition policy merger review is to structure the analysis of merger remedies so that the antitrust agencies play an effective and central role, with regulatory agencies complementing-as opposed to overlapping or contradicting--their judgments. At present, the U.S. system sometimes veers towards a worst-case scenario where federal antitrust authorities-the FTC and DOJ-impose regulatory remedies that overlap with regulatory policy and regulatory agencies perform duplicative merger reviews and impose remedies unrelated to the …

Wherefore Art Thou Guidelines? An Empirical Study Of White-Collar Criminal Sentencing And How The Gall Decision Effectively Eliminated The Sentencing Guidelines, S. Patrick Morin

The University of New Hampshire Law Review

[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff …

Toward A Unified Theory Of Access To Local Telephone Systems, Daniel F. Spulber, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

One of the most distinctive developments in telecommunications policy over the past few decades has been the increasingly broad array of access requirements regulatory authorities have imposed on local telephone providers. In so doing, policymakers did not fully consider whether the justifications for regulating telecommunications remained valid. They also allowed each access regime to be governed by its own pricing methodology and set access prices in a way that treated each network component as if it existed in isolation. The result was a regulatory regime that was internally inconsistent, vulnerable to regulatory arbitrage, and unable to capture the interactions among …

The Enduring Lessons Of The Breakup Of At&T: A Twenty-Five Year Retrospective, Christopher S. Yoo

Faculty Scholarship at Penn Carey Law

On April 18-19, 2008, the University of Pennsylvania Law School hosted a landmark conference on “The Enduring Lessons of the Breakup of AT&T: A Twenty-Five Year Retrospective.” This conference was the first major event for Penn’s newly established Center for Technology, Innovation, and Competition, a research institute committed to promoting basic research into foundational frameworks that will shape the way policymakers think about technology-related issues in the future. The breakup of AT&T represents an ideal starting point for reexamining the major themes of telecommunications policy that have emerged over the past quarter century. The conference featured a keynote address by …

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 …

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

All Faculty Scholarship

The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that …

Publicidad Desleal. Publicidad Comparativa. ¿Dónde Está El Límite?, Gabriel Martinez Medrano

Gabriel Martinez Medrano

No abstract provided.

Schumpeterian Competition And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

Joseph Schumpeter's vision of competition saw it as a destructive process in which effort, assets and fortunes were continuously destroyed by innovation. One possible implication is that antitrust's attention on short-run price and output issues is myopic: what seems at first glance to be a monopolistic exclusionary practice might really be an innovative enterprise with enormous payoffs in the long run. While this may be the case, three qualifications are critical. First, one must not confuse the prospect of innovation with the scope of the intellectual property laws; their excesses and special interest capture cast serious doubt on the proposition …

'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.

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

Unilateral Refusals To Deal And The Antitrust Modernization Commission Report, Keith N. Hylton

Faculty Scholarship

The Antitrust Modernization Commission recommends that refusals to deal with rivals in the same market should rarely, if ever, be unlawful. I will focus on the principles that should determine the legal standard governing unilateral refusals to deal. A legal test that is strongly biased in favor of defendants, as the Commission recommends, is desirable as a default rule and especially in cases in which the essential facility at the core of the refusal to deal dispute is efficiency enhancing. However, there is another set of cases in which the defendant gains control of an essential market portal. In these …

Why The Filed Rate Doctrine Should Not Imply Blanket Judicial Deference To Regulatory Agencies, Jim Rossi

Vanderbilt Law School Faculty Publications

The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility …

The Walker Process Doctrine: Infringement Lawsuits As Antitrust Violations, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

Antitrust law's Walker Process doctrine permits a patent infringement defendant to show that an improperly maintained infringement action constitutes unlawful monopolization or an unlawful attempt to monopolize. The infringement defendant must show both that the lawsuit is improper, which establishes the conduct portion of the violation and generally satisfies tort law requirements, and also that the structural prerequisites for the monopolization offense are present. The doctrine also applies to non-patent infringement actions and has been applied by the Supreme Court to copyright infringement actions. Walker Process itself somewhat loosely derives from the Supreme Court's Noerr-Pennington line of cases holding that …

Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande

All Faculty Scholarship

This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

Governing Guns, Opposing Opium: A Theory Of Internationally Regulated Goods, Asif Efrat

Cornell Law Faculty Working Papers

The paper examines a significant phenomenon overlooked by the trade literature: internationally regulated goods. Contrary to the general trend of trade liberalization, specific goods, such as drugs, small arms, and antiquities, have come under increasing international control in recent decades through a set of global regulatory agreements. I argue that these goods are unique in that they involve transnational negative externalities. Whereas certain countries benefit from the trade in these goods, the trade inflicts negative effects on other countries. Examples of such negative externalities include fatalities and refugee flows resulting from rampant gun violence, high crime rates associated with widespread …

World War 4.0: The Intel Antitrust Wars, Robert H. Lande

All Faculty Scholarship

This short piece gives an overview of antitrust actions filed around the world against Intel for allegedly undertaking anticompetitive actions in the market for X 86 PC chips.

Unilateral Refusals To Deal, Vertical Integration, And The Essential Facility Doctrine, Herbert J. Hovenkamp

Faculty Scholarship at Penn Carey Law

Where it applies, the essential facility doctrine requires a monopolist to share its "essential facility." Since the only qualifying exclusionary practice is the refusal to share the facility itself, the doctrine comes about as close as antitrust ever does to condemning "no fault" monopolization. There is no independent justification for an essential facility doctrine separate and apart from general Section 2 doctrine governing the vertically integrated monopolist's refusal to deal. In its Trinko decision the Supreme Court placed that doctrine about where it should be. The Court did not categorically reject all unilateral refusal to deal claims, but it placed …