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Full-Text Articles in Law

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton Jul 2019

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition ...


Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop Apr 2019

Analyzing Vertical Mergers To Avoid False Negatives: Three Recent Case Studies, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes three recent vertical mergers: a private antitrust case attacking the consummated merger of Jeld-Wen and Craftmaster Manufacturing Inc. (“CMI”) that was cleared by the DOJ in 2012 but subsequently litigated and won by the plaintiff, Steves & Sons in 2018; and two recent vertical merger matters investigated and cleared (with limited remedies) by 3-2 votes by the Federal Trade Commission in early 2019 -- Staples/Essendant and Fresenius/NxStage. There are some factual parallels among these three matters that make it interesting to analyze them together. First, the DOJ’s decision to clear Jeld-Wen/CMI merger appears to be a clear false ...


The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop Oct 2018

The At&T/Time Warner Merger: How Judge Leon Garbled Professor Nash, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

The US District Court in the AT&T/Time Warner vertical merger case has issued its opinion permitting the merger. At of this writing in August 2018, the Department of Justice (DOJ) has appealed to the DC Circuit and filed its brief, as have several Amici. I was disappointed that the DOJ was unable to prove its case to the satisfaction of Judge Leon, the trial judge. Notwithstanding the court’s confidence that the merger is procompetitive, I remain concerned that it will have anti- competitive effects, both on its own and following the subsequent vertical mergers in the TV ...


The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop Jun 2015

The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for ...


The Appropriate Legal Standard And Sufficient Economic Evidence For Exclusive Dealing Under Section 2: The Ftc’S Mcwane Case, Steven C. Salop, Sharis A. Pozen, John R. Seward Aug 2014

The Appropriate Legal Standard And Sufficient Economic Evidence For Exclusive Dealing Under Section 2: The Ftc’S Mcwane Case, Steven C. Salop, Sharis A. Pozen, John R. Seward

Georgetown Law Faculty Publications and Other Works

The FTC recently found McWane, Inc. liable for unlawful monopoly maintenance by a 3-1 majority. The dispute among the FTC Commissioners raises important and interesting issues regarding the law and economics of exclusive dealing and the proper evaluation of the competitive effects of exclusionary conduct. Commissioner Wright’s Dissent proposes and utilizes a new legal standard that requires the plaintiff to show “clear evidence” of harm to competition before shifting the burden to the defendant to show procompetitive efficiency benefits. This burden of proof and production on the plaintiff is much higher than showing “probable effect” based on a preponderance ...


A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein Jan 2013

A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein

Articles

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not ...


Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp Dec 2012

Comparative Antitrust Federalism: Review Of Cengiz, Antitrust Federalism In The Eu And The Us, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This brief essay reviews Firat Cengiz’s book Antitrust Federalism in the EU and the US (2012), which compares the role of federalism in the competition law of the European Union and the United States. Both of these systems are “federal,” of course, because both have individual nation-states (Europe) or states (US) with their own individual competition provisions, but also an overarching competition law that applies to the entire group. This requires a certain amount of cooperation with respect to both territorial reach and substantive coverage.

Cengiz distinguishes among “markets,” “hierarchies,” and “networks” as forms of federalism. Markets are the ...


The Market As A Legal Concept, Justin Desautels-Stein Jan 2012

The Market As A Legal Concept, Justin Desautels-Stein

Articles

In the wake of the recent financial crisis of 2008, and in the run-up to what some are calling a perfect fiscal storm, there is no shortage of commentary on the need for fundamental market reform. Though there are certainly disagreements about where the real problems are and what to do, almost all the commentary remains wedded to an old and entirely false image of “free competition.” Of course, there is hardly consensus about whether markets require the heavy hand of regulative control, or are better left to regulate themselves, but a belief in the distinction between these two images ...


White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller Jan 2008

White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller

Faculty Scholarship

In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that ...


Modularity, Vertical Integration, And Open Access Policies: Towards A Convergence Of Antitrust And Regulation In The Internet Age, Joseph Farrell, Philip J. Weiser Jan 2003

Modularity, Vertical Integration, And Open Access Policies: Towards A Convergence Of Antitrust And Regulation In The Internet Age, Joseph Farrell, Philip J. Weiser

Articles

Antitrust law and telecommunications regulation have long adopted different stances on whether to mandate open access to information platforms. This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in evaluating this basic policy choice, suggesting how they can be integrated in an effective manner. In particular, the authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms and facilitate a true convergence between antitrust and regulatory policy.


Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans Jan 1987

Legal Factors In The Acquisition Of A United State Corporation: Litigation By Hostile Targets, Johan E. Droogmans

LLM Theses and Essays

Acquisitions of United States corporations have become increasingly complex takeover contests, where bidders and target corporations are forced into offensive and defensive litigation strategies to protect their respective interests. Targets often assert that the bidders have violated federal or state securities laws, federal antitrust laws, federal margin regulations, federal and state regulatory systems, and federal anti-racketeering laws. These lawsuits are primarily based on the principal federal regulation of takeovers in section 14(a) of the Securities and Exchange Act of 1934 and the Williams Act. Target litigation is customary, but entails certain disadvantages; a lawsuit rarely stops an offer, is ...


Sentencing Antitrust Offenders: Reconciling Economic Theory With Legal Theory, Kenneth G. Dau-Schmidt Jan 1984

Sentencing Antitrust Offenders: Reconciling Economic Theory With Legal Theory, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

This Article evaluates two different economic models of criminal law as applied to the enforcement of antitrust laws. The author argues that economic models which propose antitrust punishment be limited to fines and then to fines that are levied against only business entities, are deficient because they account for only the general deterrent effect of punishment and include a value of criminal benefit for the offender, a value not shared by society. He presents, as an alternative, a model that accounts for benefits afforded by incarceration such as the signaling of what is a criminal offense, changes in the criminal ...


Interlocks In Corporate Management And The Antitrust Laws, Arthur H. Travers, Jr. Jan 1968

Interlocks In Corporate Management And The Antitrust Laws, Arthur H. Travers, Jr.

Articles

No abstract provided.


An Examination Of The Cab's Merger Policy, Arthur H. Travers, Jr. Jan 1967

An Examination Of The Cab's Merger Policy, Arthur H. Travers, Jr.

Articles

No abstract provided.


Comment, The Consent Decree In Antitrust Enforcement--Analysis And Criticism, J. Dennis Hynes Jan 1960

Comment, The Consent Decree In Antitrust Enforcement--Analysis And Criticism, J. Dennis Hynes

Articles

No abstract provided.