Law Commons^™

A Traditional And Textualist Analysis Of The Goals Of Antitrust: Efficiency, Preventing Theft From Consumers, And Consumer Choice, Robert H. Lande

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This Article ascertains the overall purpose of the antitrust statutes in two very different ways. First, it performs a traditional analysis of the legislative history of the antitrust laws by analyzing relevant legislative debates and committee reports. Second, it undertakes a textualist or "plain meaning" analysis of the purpose of the antitrust statutes, using Justice Scalia's methodology. It does this by analyzing the meaning of key terms as they were used in contemporary dictionaries, legal treatises, common law cases, and the earliest U.s. antitrust cases, and it does this in light of the history of the relevant times.

Both approaches …

Consumer Choice As The Best Way To Describe The Goals Of Competition Law, Robert H. Lande

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This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly:

1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches;
2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice;
3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer …

Of Myths And Evidence: An Analysis Of 40 U.S. Cases For Countries Considering A Private Right Of Action For Competition Law Violations, Robert H. Lande, Joshua P. Davis

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This article assesses some of the benefits of private enforcement of the United States antitrust laws by analyzing forty large recent, successful private cases. It should help in assessing the desirability and efficacy of private enforcement - information that may prove useful to jurisdictions contemplating a private right of action for competition cases.

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

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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 …

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

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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.

The Chicago School's Foundation Is Flawed: Antitrust Protects Consumers, John B. Kirkwood, Robert H. Lande

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Chicago School antitrust policy rests on the premise that the purpose of the antitrust laws is to promote economic efficiency. That foundation is flawed. The fundamental goal of antitrust law is to protect consumers.

This essay defines the relevant economic concepts, summarizes the legislative histories, and analyzes recent case law. 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 deprives them of the benefits of competition and transfers their wealth to firms with market power. When conduct presents a conflict between the welfare …

Using The "Consumer Choice" Approach To Antitrust Law, Neil W. Averitt, Robert H. Lande

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The current paradigms of antitrust law - price and efficiency - do not work well enough. They were an immense improvement over their predecessors, and they have served the field competently for a generation, producing reasonably accurate results in most circumstances. Accumulated experience has also revealed their shortcomings, however. They are hard to fully understand and are not particularly transparent in their application. Moreover, in a disturbingly large number of circumstances they are unable to handle the important issue of non-price competition.

In this article we suggest replacing the older paradigms with the somewhat broader approach of "consumer choice." The …

The Size Of Cartel Overcharges: Implications For U.S. And Ec Fining Policies, John M. Connor, Robert H. Lande

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The purpose of this article is to examine whether the current cartel fine levels of the European Union (EU) and the United States are at the optimal levels. We collected and analyzed the available information concerning the size of the overcharges caused by hard-core pricing fixing, bid rigging, and market allocation agreements. Data sets of United States cartels were assembled and examined. These cartels overcharged an average of 18% to 37%, depending upon the data set and methodology employed in the analysis and whether mean or median figures are used. Separate data sets for European cartels also were analyzed, which …

What Do Exit Polls And Flu Vaccine Shortages Have In Common?, Albert A. Foer, Robert H. Lande, F.M. Scherer

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What do exit polls and flu vaccine shortages have in common? Both involve situations where society has come to rely excessively on too few entities. When even one company makes a mistake society can suffer significantly. This short piece advocates that we abandon our almost laissez faire tolerence towards high concentration, and rely upon competition, rather than on monopoly or a small number of producers.

No Wonder They Dislike Us: Us Admonishes Europe For Protecting Itself From Microsoft's Predation, Albert A. Foer, Robert H. Lande

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This short article applauds the European Commission for holding that Microsoft violated European competition laws, and admonishes the U.S. for criticizing the Europeans for protecting themselves from Microsoft's anticompetitive activity.

Ub Viewpoint – Aol/Microsoft Settlement Could Harm Consumers, Robert H. Lande

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No abstract provided.

The European Union’S Microsoft Case: No Time For Jingoism, Albert A. Foer, Robert H. Lande

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No abstract provided.

Collusion Over Rules, Robert H. Lande, Howard P. Marvel

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Many instances of anticompetitive collusion are designed not to affect prices and output directly, but rather to shape the rules under which competition takes place. They help to cushion competitors from hard competition through such "rules" as restraints on advertising, sham ethical codes, or bans on discounts, coupons, "free" services, or extended hours of operation. Instead of collusion directly over outcomes, firms attuned to the strategic impact of their activities often agree on ways in which to shape their environments in order to soften competition and to insulate themselves from hard competition in ways that will lead to higher prices. …

The Three Types Of Collusion: Fixing Prices, Rivals, And Rules, Robert H. Lande, Howard P. Marvel

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Collusion can profitably be classified into three distinct types. In our classification, "Type I" collusion is the familiar direct agreement among colluding firms (a cartel) to raise prices or, equivalently, restrict output. Alternatively, firms can collude to disadvantage rivals in ways that causes those rivals to cut output. We term this "Type II" collusion. Its indirect effect is an increase in market prices.

A number of important collusion cases neither direct manipulation of prices or output, nor direct attacks on rivals. Examples include Supreme Court cases such as National Society of Professional Engineers v. US, Bates v. State Bar of …

The Evolution Of United States Antitrust Law: The Past, Present, And (Possible) Future, Albert A. Foer, Robert H. Lande

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As the world’s nations rapidly move from systems in which central planning and monopoly are replaced by free markets,2 it becomes increasingly valuable to consider the histories of competition policy experienced in different nations, on a comparative basis.3 In this article, we focus on the history of antitrust in the United States, the first nation to develop and fully-articulate a competition policy, drawing out themes that may be useful to other countries as they contemplate the shape and direction of their own competition regimes. We show that the American competition policy has reflected an underlying stability and bi-partisanship, but that …

Creating Competition Policy For Transition Economies: Introduction, Robert H. Lande

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This is an introduction to a symposium on Creating Competition for Transition Economies. This article provides an overview of the topic, and also briefly introduces the authors of the articles in the symposium; William Kovacic, Eleanor Fox, Spencer Weber Waller, Malcolm Coate, and Armando Rodriguez.

Black And White Thinking In The Gray Areas Of Antitrust: The Dismantling Of Vertical Restraints Regulation, Barbara Ann White

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In this Article I present a two-pronged analysis of vertical restraints, one in law and one in economics. By tracing the checkered legal history of vertical restraints, I show the marked changes recent antitrust decisions have wrought, in particular, by comparing the legal standards expressed by the Supreme Court in Monsanto Co. v. Spray-Rite Service Corp. with those in Business Electronics Corp. v. Sharp Electronics Corp and Atlantic Richfield Co. (ARCO) v. USA Petroleum Co. If through the latter two cases the Court has, for all practical purposes, created a category of per se legality for vertical price restraints, which …

The Rise And (Coming) Fall Of Efficiency As The Ruler Of Antitrust, Robert H. Lande

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The debate over the legitimate goals of antitrust is ceaseless and its practical resolution influenced by politics. The answer often given in the past, and particularly during the Warren Court era when a heavy emphasis was placed on social and political factors, contrasts sharply with the consensus view during the Reagan Administration that only economic efficiency counts. Since antitrust moves in cycles, a natural question arises—will antitrust continue to stand upon a foundation of efficiency, return to the old social and political perspective, or embrace some third view of its proper direction?

Reducing Unions' Monopoly Power: Costs And Benefits, Robert H. Lande, Richard O. Zerbe Jr.

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There is a fundamental conflict between labor law and antitrust law. The antitrust laws reflect the powerful idea that competition should usually dictate the way our economy is organized, to the benefit of the economy as a whole, including workers. But the labor exemption to the antitrust laws suggests a different policy: workers should have the right to eliminate competition for wages, hours, and working conditions.

Wealth Transfers As The Original And Primary Concern Of Antitrust: The Efficiency Interpretation Challenged, Robert H. Lande

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Chicago School antitrust policy rests upon the premise that the sole purpose of antitrust is to promote economic efficiency. This article shows that this foundation is flawed. The fundamental purpose of antitrust is to protect consumers. To protect purchasers from paying supracompetitive prices when they buy goods or services. This is the "wealth transfer," "theft", "consumer welfare" or "purchaser protection" explanation for antitrust.

The article shows that the efficiency view originated in a detailed analysis of the legislative history of the Sherman Act undertaken by Robert Bork. Bork purported to show that Congress only cared about enhancing economic efficiency.

To …