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Full-Text Articles in Law
Balancing Effects Across Markets, Daniel A. Crane
Balancing Effects Across Markets, Daniel A. Crane
Articles
In Philadelphia National Bank (PNB), the Supreme Court held that it is improper to weigh a merger's procompetitive effects in one market against the merger's anticompetitive effects in another. The merger in question, which ostensibly reduced retail competition in the Philadelphia area, could not be justified on the grounds that it increased competition against New York banks and hence perhaps enhanced competition in business banking in the mid-Atlantic region. I will refer to the Supreme Court's prohibition on balancing effects across markets as a "market-specificity" rule. Under this rule, efficiencies that may counterbalance anticompetitive aspects must be specific to …
Market Power Without Market Definition, Daniel A. Crane
Market Power Without Market Definition, Daniel A. Crane
Articles
Antitrust law has traditionally required proof of market power in most cases and has analyzed market power through a market definition/market share lens. In recent years, this indirect or structural approach to proving market power has come under attack as misguided in practice and intellectually incoherent. If market definition collapses in the courts and antitrust agencies, as it seems poised to do, this will rupture antitrust analysis and create urgent pressures for an alternative approach to proving market power through direct evidence. None of the leading theoretic approaches—such as the Lerner Index or a search for supracompetitive profits—provides a robust …
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles
Articles
The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …
Does Monopoly Broth Make Bad Soup?, Daniel A. Crane
Does Monopoly Broth Make Bad Soup?, Daniel A. Crane
Articles
There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories. Reflecting a …
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane
Articles
The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …
Pangloss Responds, Daniel A. Crane
Pangloss Responds, Daniel A. Crane
Articles
I am afraid that William Shieber and I are speaking past each other. I agree wholeheartedly with his assertion that anyone who believes that political appointees do not exert a considerable influence over the antitrust agencies is naïve. However, Technocracy and Antitrust does not advance the Panglossian view that the antitrust agencies are apolitical, if by that we mean that robotic machines devoid of human perspective or ideological commitment churn out scientifically predetermined antitrust results.
The Standard Oil Decision: The Rule Of Reason, Horace Lafayette Wilgus
The Standard Oil Decision: The Rule Of Reason, Horace Lafayette Wilgus
Articles
After twenty-one years the Sherman Anti Trust Act has been applied to the typical combination restraining interstate commerce, which that act was designed to prevent.