Law Commons^™

Antitrust & Corruption: Overruling Noerr, Tim Wu

Faculty Scholarship

We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels.

Since …

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …

The Curse Of Bigness: New Deal Supplement, Tim Wu

Faculty Scholarship

This is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.

It is meant to be read together with the larger volume, but can also be read separately.

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s competition regime: the …

The “Protection Of The Competitive Process” Standard, Tim Wu

Faculty Scholarship

The antitrust law should return to a standard more realistic and suited to the legal system – the “protection of the competitive process.” It posits a basic question for law enforcement and judges. Given complained-of conduct, is that conduct actually part of the competitive process, or is it a sufficient deviation as to be unlawful? In this view, antitrust law aims to create a body of common-law rules that punish and therefore deter such disruptions – hence “protecting the competitive process.”

Competition Law Around The World From 1889 To 2010: The Competition Law Index, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Competition laws have become a mainstay of regulation in market economies today. At the same time, past efforts to study the drivers or effects of these laws have been hampered by the lack of systematic measures of these laws across a wide range of years or countries. In this paper, we draw on new data on the evolution of competition laws to create a novel Competition Law Index (the “CLI”) that measures the stringency of competition regulation from 1889 to 2010. We then employ the CLI to examine trends in the intensity of competition regulation over time and across key …

After Consumer Welfare, Now What? The "Protection Of Competition" Standard In Practice, Tim Wu

Faculty Scholarship

The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?

I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws. …

The American Express Opinion, Tech Platforms & The Rule Of Reason, Tim Wu

Faculty Scholarship

This paper makes two points. First, it describes the opinion as creating a mirror-image of the "per se" rulings, this time favoring defendants instead of plaintiffs. Second, however, it points out the narrowness of the decision. If the American Express opinion had created rules for all two-sided platforms it would have fundamentally changed much of antitrust law, by reaching so much of American commerce. For the concept of a two-sided platform is open-ended enough to conceivably describe businesses as diverse as malls, sports leagues, real estate agents, stock exchanges, and most tech platforms. However, the American Express opinion is narrower …

Competition Law Gone Global: Introducing The Comparative Competition Law And Enforcement Datasets, Anu Bradford, Adam S. Chilton, Chris Megaw, Nathaniel Sokol

Faculty Scholarship

Competition law has proliferated around the world. Due to data limitations, however, there is little systematic information about the substance and enforcement of these laws. In this paper, we address that problem by introducing two new datasets on competition law regimes around the world. First, we introduce the Comparative Competition Law Dataset, which codes competition laws in 130 jurisdictions between 1889 to 2010. Second, we introduce the Comparative Competition Enforcement Dataset, which provides data on competition agencies’ resources and activities in 100 jurisdictions between 1990 and 2010. These datasets offer the most comprehensive picture of competition law yet assembled and …

"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu

Faculty Scholarship

Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of …

Does Google Content Degrade Google Search? Experimental Evidence, Michael Luca, Tim Wu, Sebastian Couvidat, Daniel Frank

Faculty Scholarship

While Google is known primarily as a search engine, it has increasingly developed and promoted its own content as an alternative to results from other websites. By prominently displaying Google content in response to search queries, Google is able to use its dominance in search to gain customers for this content. This may reduce consumer welfare if the internal content is inferior to organic search results. In this paper, we provide a legal and empirical analysis of this practice in the domain of online reviews. We first identify the conditions under which universal search would be considered anticompetitive. We then …

When The Wto Works, And How It Fails, Anu Bradford

Faculty Scholarship

This Article seeks to explain when an international legal framework like the WTO can facilitate international cooperation and when it fails to do so. Using an empirical inquiry into different agreements that the WTO has attempted to facilitate — specifically, intellectual property and antitrust regulation — it reveals more general principles about why the WTO can facilitate agreement in some situations and not in others. Comparing the successful conclusion of the TRIPS Agreement and the failed attempts to negotiate a WTO antitrust agreement indicates that international cooperation is likely to emerge when the interests of powerful states align and when …

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of …

Economic Development, Competition Policy, And The World Trade Organization, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

At the recent WTO ministerial meeting in Doha, Qatar, WTO members called for the launch of negotiations on disciplines relating to competition, on the basis of explicit consensus on modalities to be agreed at the 5th WTO ministerial in 2003. Discussions in WTO since 1997 have revealed little support for ambitious multilateral action. Proponents of WTO antitrust disciplines currently propose an agreement that is limited to ‘core principles’ – nondiscrimination, transparency, and provisions banning ‘hard core’ cartels. We argue that an agreement along such lines will create compliance costs for developing countries while not addressing the anticompetitive behavior of firms …

The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

The Agreement on Government Procurement (GPA) – originally negotiated during the Tokyo Round – was renegotiated for the second time during the Uruguay Round. It is one of the WTO's so-called Plurilateral Agreements, in that its disciplines apply only to those WTO Members that have signed it. In contrast to most of the other Tokyo Round codes – e.g., the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping – the GPA could not be 'multilateralized'. With the reintroduction of agriculture and textiles and clothing into the GATT, procurement has therefore become the major 'hole' …