Law Commons^™

Should Section 5 Guidelines Focus On Economic Efficiency Or Consumer Choice?, Robert H. Lande

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FTC Commissioner Joshua Wright is right that it would be desirable for the Commission to issue Section 5 antitrust guidelines. This article will demonstrate, however, that the best way to formulate Section 5 guidelines is to focus them on the goal of protecting consumer choice, rather than to embrace Commissioner Wright's proposal to neuter the FTC Act by confining it in an economic efficiency straitjacket. Only if Section 5 guidelines were formulated appropriately would they improve consumer welfare during the Commission's second century.

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 …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

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Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

Ftc V. Intel: Applying The "Consumer Choice" Framework To "Pure" Section 5 Allegations, Robert H. Lande

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This short article analyzes the "pure" Section 5 allegations in the recent FTC complaint against Intel. It first shows that Section 5 of the Federal Trade Commission Act is more encompassing than the Sherman Act and why this breath is in the public interest. It next analyzes allegations from the Intel Complaint, showing why each appears to be in the public interest yet might not be permitted by the Sherman Act. It also discusses other advantages that would arise if these charges were litigated under Section 5 rather than the Sherman Act.

The article notes assertions by Intel and others …

Revitalizing Section 5 Of The Ftc Act Using “Consumer Choice” Analysis, Robert H. Lande

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This paper makes two points. First, Section 5 of the FTC Act, properly construed, is indeed significantly broader and more encompassing than the Sherman Act or Clayton Act. Section 5 violations include incipient violations of the other antitrust laws, and also violations of their policy or spirit.

Second, the best - and probably the only - way to interpret Section 5 in an expansive manner is to do so in a way that also is relatively definite, predictable, principled and clearly bounded. This best can be done if Section 5 is articulated using the consumer choice framework. Without the discipline …

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 …

Beware Buyer Power, Robert H. Lande

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The conventional antitrust wisdom is that buyer side market power or monopsony is so unusual and so rarely anticompetitive that it should not merit more than a scholarly afterthought. Moreover, these brief mentions typically say it is essentially the mirror image of seller power or that, while seller-side power is suspect since it leads to higher consumer prices, buyer-side power is usually benign, because the public should not care which layer of a distribution channel gets any potential savings that can arise. This short article discusses how buyer power can be anticompetitive. It also discusses how buyer power or monopsony …

Ub Viewpoint – Media Mergers, Antitrust Law And Consumer Choice, Robert H. Lande

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No abstract provided.

The Perfect Caper?: Private Damages And The Microsoft Case, Robert H. Lande, James Langenfeld

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As readers of crime novels know, there are many definitions of the perfect caper. Under most, the perpetrator gets to keep its ill-gotten gains and goes unpunished. Even if the perpetrator is arrested and brought to trial, he or she still typically escapes punishment completely due to a variety of unusual circumstances. This is essentially what Professors John E. Lopatka and William H. Page are arguing about Microsoft's actions. They assert that even though Microsoft has violated the antitrust laws, it will not be made to pay for its anticompetitive conduct, at least not by private plaintiffs.

Consumer Choice As The Ultimate Goal Of Antitrust, Robert H. Lande

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The mission of the antitrust laws need to be clarified, and this article asserts that the best way to do this is to interpret and enforce these laws in terms of consumer choice. This reformulation is necessary due to uncertainty and instability that exists in the field. This article will 1. define the consumer choice approach to antitrust or competition law and show how it differs from other approaches; 2. show that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. show that the antitrust case law embodies a concern for optimal …

Consumer Sovereignty: A Unified Theory Of Antitrust And Consumer Protection Law, Neil W. Averitt, Robert H. Lande

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This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two component parts of an overarching unity: effective consumer choice (also called consumer sovereignty).

Consumer choice only is effective when two fundamental conditions are present. There must be a range of consumer options made possible through competition, and consumers must be able to choose effectively among these options. The antitrust laws are intended to …