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Full-Text Articles in Law
Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert
Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert
Faculty Publications
"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market …
Defining Unreasonably Exclusionary Conduct: The 'Exclusion Of A Competitive Rival' Approach, Thom Lambert
Defining Unreasonably Exclusionary Conduct: The 'Exclusion Of A Competitive Rival' Approach, Thom Lambert
Faculty Publications
Unreasonably exclusionary conduct, the element common to monopolization and attempted monopolization offenses under Section 2 of the Sherman Act, remains essentially undefined. Federal courts, including the U.S. Supreme Court, have purported to define the term, but the definitions they have offered are so indeterminate as to be, in the words of one prominent commentator, “not just vague but vacuous.” Seeking to fill the void left by the courts, antitrust scholars have in recent years proposed four universal definitions of unreasonably exclusionary conduct. Each, however, is deficient: One would fail to deter a substantial amount of anticompetitive conduct, and the other …
Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert
Appropriate Liability Rules For Tying And Bundled Discounting, Thom Lambert
Faculty Publications
This article asserts a comprehensive response to Elhauge’s provocative arguments. With respect to tying, the article shows that governing Supreme Court precedent does not deem the non-foreclosure “power” effects of the practice to be anticompetitive and that those effects are unlikely to reduce social welfare in the long run, especially after accounting for dynamic efficiencies. With respect to bundled discounting, the article shows that Elhauge’s proposed liability rule is both inapposite to consumer harm and inadministrable and that both “linked” market foreclosure and a form of below-cost pricing are necessary for anticompetitive harm and should therefore be prerequisites to antitrust …
The Roberts Court And The Limits Of Antitrust, Thom Lambert
The Roberts Court And The Limits Of Antitrust, Thom Lambert
Faculty Publications
This article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.
Tweaking Antitrust's Business Model , Thom Lambert
Tweaking Antitrust's Business Model , Thom Lambert
Faculty Publications
This essay evaluates Hovenkamp's suggestions, concluding that most are sound, that a few might be slightly revised to enhance their effectiveness or administrability, and that a couple are downright unwise. In particular, the essay criticizes Hovenkamp's call for abandonment of the indirect purchaser rule and his proposed test for identifying exclusionary conduct under Section 2 of the Sherman Act.
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Faculty Publications
A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.
Antitrust And Employer Restraints In Labor Markets, Robert H. Jerry Ii
Antitrust And Employer Restraints In Labor Markets, Robert H. Jerry Ii
Faculty Publications
This Article argues that the Sherman Act regulates concerted employer activity in the labor market only if such activity restrains or attempts to restrain the product market. After discussing the legislative history of the Act, the Article examines and synthesizes two conflicting lines of cases. Finally, the Article suggests how courts should dispose of challenges to employer conduct and posits the basis for a unified theory of labor-antitrust law.