Law Commons^™

A Comment On Markovits's Welfare Economics And Antitrust, Keith N. Hylton

Faculty Scholarship

I criticize two features of the new book by Richard Markovits. One is the notion that ethics or moral judgments should be part of our analysis of antitrust. The other is the notion that market definition is incoherent.

Jurisdiction Beyond Our Borders: United States V. Alcoa And The Extraterritorial Reach Of American Antitrust, 1909–1945, Laura Phillips Sawyer

Scholarly Works

Chapter in the book Antimonopoly and American Democracy by Daniel A. Crane and William J. Novak, eds., Oxford University Press, 2023.

In 1945, Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: it narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional …

The Slogans And Goals Of Antitrust Law, Herbert J. Hovenkamp

All Faculty Scholarship

This is a comparative examination of the slogans and goals most advocated for antitrust law today – namely, that antitrust should be concerned with “bigness,” that it should intervene when actions undermine the “competitive process,” or that it should be concerned about promoting some conception of welfare. “Bigness” as an antitrust concern targets firms based on absolute size rather than share of a market, as antitrust traditionally has done. The bigness approach entails that antitrust cannot be concerned about low prices, or the welfare of consumers and labor. Nondominant firms could not sustain very high prices or cause significant reductions …

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Prosecuting Excessive Pricing Of Pharmaceuticals Under Competition Law: Evolutionary Development, Frederick M. Abbott

Scholarly Publications

Prosecution of pharmaceutical companies for excessive pricing of products under competition law is now a reality. As recently as a decade ago, such prosecutions were virtually nonexistent. That situation has changed dramatically as competition authorities in Europe and South Africa have pursued a significant number of such prosecutions and have levied substantial fines against the investigated parties. While the United States has traditionally led in policing the pharmaceutical market against anticompetitive misconduct, in this specific arena it has fallen behind, principally because federal courts so far have refused to acknowledge excessive pricing as a cause of action under Section 2 …

Merger Enforcement Statistics: 2001-2020, Logan Billman, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article summarizes merger enforcement data for the period between 2001 and 2020, using a database created by the authors. The database lists the identity and outcome of every transaction that received a second request during this 20-year period. The database also lists the identity and outcome of every challenge to an already-consummated merger during the period. To our knowledge, it is the only complete database for the listing and outcomes of all such transactions. The goal of creating the database is to provide further information on merger enforcement, which hopefully can inform policy and spur additional analysis. We describe …

Worker Welfare And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The important field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history labor has been viewed as a competitive threat, and the debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.

Antitrust interest in labor markets is properly focused on two things. The smaller …

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol

Faculty Articles

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

Algorithmic Personalized Wages, Zephyr Teachout

Faculty Scholarship

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.

Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …

Race-Ing Antitrust, I. Bennett Capers, Gregory Day

Faculty Scholarship

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Section 5 In Action: Reinvigorating The Ftc Act And The Rule Of Law, Lina M. Khan

Faculty Scholarship

The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.

This is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s …

Coercive Rideshare Practices: At The Intersection Of Antitrust And Consumer Protection Law In The Gig Economy, Christopher L. Peterson, Marshall Steinbaum

Utah Law Faculty Scholarship

This Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition …

The Role Of Secondary Algorithmic Tacit Collusion In Achieving Market Alignment, Maurice E. Stucke, Ariel Ezrachi

Scholarly Works

The antitrust risks associated with the use of the same hub’s pricing algorithm by many sellers are now well-accepted. But what if many rivals use several different hubs for dynamic pricing? The common assumption is that in such instances, competition among the pricing hubs would support competition among the sellers. However, in this paper we argue differently and introduce the concept of secondary algorithmic tacit collusion, which leads to anticompetitive effects, independent of the conditions on the primary market. This phenomenon may lead to the evils of price-fixing but on far a wider scale. Contrary to traditional tacit collusion, this …

Addressing Personal Data Collection As Unfair Methods Of Competition, Maurice E. Stucke

Scholarly Works

Enforcers, policymakers, scholars, and the public are concerned about Google, Apple, Facebook, Amazon, and recently Microsoft and their influence. That influence comes in part from personal data. These companies are “data-opolies,” in that they are powerful firms that control our data. The data comes from their vital ecosystems of interlocking online platforms and services, which attract users; sellers; advertisers; website publishers; and software, app, and accessory developers.

The public sentiment is that a few companies, in possessing so much data, possess too much power. Something is amiss. Cutting across political lines, many Americans think Big Tech’s economic power is a …

Antitrust Worker Protections: Rejecting Multi-Market Balancing As A Justification For Anticompetitive Harms To Workers, Laura Alexander, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

Anticompetitive conduct toward upstream trading partners may have the effect of benefiting downstream consumers even as the conduct harms the firms’ workers or suppliers. Defendants may attempt to justify their upstream conduct—and may rely on the ancillary restraints doctrine in doing so—on the grounds that the restraints create efficiencies benefitting ` purchasers, rather than focusing solely on the impact of the restraint on the workers or suppliers in the upstream market. Such balancing of harms against out-of-market benefits achieved by a different group should be rejected by antitrust doctrine generally, and specifically in the case of harms to workers. This …