Antitrust and Trade Regulation Commons^™

Understanding And Defending Against Medical Professional Peer Review Antitrust Claims, Daniel M. Warner

University of Baltimore Law Review

No abstract provided.

Are Antitrust "Treble" Damages Really Single Damages?, Robert H. Lande

All Faculty Scholarship

This Article will show that antitrust violations do not actually give rise to "treble" damages. When viewed correctly, antitrust damages awards are approximately equal to, or are in fact less than, the actual damages caused by antitrust violations.

The article demonstrates this by analyzing the relatively quantifiable harms from antitrust violations, modeling the issues under both deterrence and compensation frameworks. It calculates rough estimates of those factors that affect the magnitude of the antitrust damages multiplier actually awarded. These adjustments to the "treble" damages multiplier arise from: (1) the lack of prejudgment interest; (2) the effects of the statute of …

Chicago Takes It On The Chin: Imperfect Information Could Play A Crucial Role In The Post-Kodak World, Robert H. Lande

All Faculty Scholarship

This article briefly describes the revolutionary potential of the Supreme Court's Kodak decision. It discusses the dramatic changes in antitrust that would occur if the field took concepts such as imperfect information, lock-in effects, strategic behavior, and other post-Chicago ideas seriously.

Among the effects of this decision could be:

(1) Imperfect information could substitute for traditional market share-based market power and reveal that a market that structurally appeared competitive in fact was behaving anticompetitively. Market share-based safe harbors are more likely to be inappropriate.

(2) This imperfect information-based market power also can lead to relatively direct harm to consumers by …

Countervailing Power—Different Rules For Different Markets? Conduct And Context In Antitrust Law And Economics, Barbara Ann White

All Faculty Scholarship

The focus of modern applications of economic reasoning to antitrust concerns has been on the more subtle efficiency or procompetitive dimensions of the scrutinized conduct. When any of these characteristics are discovered, the courts tend to find no antitrust violation.

Two major difficulties arise with this approach. First, efficiency or procompetitive aspects can almost always be uncovered in any corporate enterprise, creating the potential for legitimizing almost all business behavior. Second, the legal conclusions courts reach are typically couched in terms of the business practice itself; therefore, once upheld, that practice is implicitly validated for other unrelated marketplace scenarios. Indiscriminate …

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

All Faculty Scholarship

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 …

More Lessons From Japan: End Industrywide Collective Bargaining?, Robert H. Lande, Richard O. Zerbe Jr.

All Faculty Scholarship

The number of books and articles discussing Japanese management techniques with an eye to transplanting them to the United States is staggering. Americans understandably are impressed by Japanese efficiency and like to think the adoption of some of their techniques will aid our own industries. Often these proposals seem fanciful and fail to recognize the many differences between the two countries, their economic systems and cultures.

Commentary: Implications Of Professor Scherer's Research For The Future Of Antitrust, Robert H. Lande

All Faculty Scholarship

One way to test the accuracy of Professor Scherer's research is to compare it to the best previous work in the area. Prior to his current article the best analysis of the state of economic thinking and knowledge during antitrust's formative period was presented twelve years ago by—Professor Scherer. This was a skeletal precurser to the well-documented version that he now presents, but his overall conclusions are identical. During the twelve years since his conclusions were presented in the Yale Law Journal no one has demonstrated that his research is in any way faulty or misleading, even though many have …

Price Effects Of Horizontal Mergers, Alan A. Fisher Ph.D., Frederick I. Johnson Ph.D., Robert H. Lande

All Faculty Scholarship

When should the government challenge a merger that might increase market power but also generate efficiency gains? The dominant belief has been that the government and courts should evaluate these mergers solely in terms of economic efficiency. Congress, however, wanted the courts to stop any merger significantly likely to raise prices. Substantially likely efficiency gains should therefore affect the legality of mergers to the extent that they are likely to prevent price increases. This standard is more strict than the economic efficiency criterion, because the latter would permit mergers substantially likely to lead to higher prices, if sufficient efficiency gains …

Comments: Antitrust Liability For Bad Faith Assertion Of Trade Secrets, Michael D. Oliver

University of Baltimore Law Review

No abstract provided.

When Should States Challenge Mergers: A Proposed Federal/State Balance, Robert H. Lande

All Faculty Scholarship

This article critically analyzes the current system of United States merger enforcement, under which both federal and State antitrust enforcers scrutinizes and potentially can challenge any merger that affects interstate commerce. This article develops and proposes an alternative, a voluntary division of responsibility patterned after the European Union's approach. Under this alternative federal enforcers normally would defer to State enforcers for certain specified mergers, and State enforcers normally would defer to federal enforcers for other specified mergers.

Chicago's False Foundation: Wealth Transfers (Not Just Efficiency) Should Guide Antitrust, Robert H. Lande

All Faculty Scholarship

My role today will be comparable to the small child's in the classic story of the Emperor's new clothes; I too have a simple truth to tell. The sole goal of antitrust is not to enhance economic efficiency. Increased economic efficiency is not even the primary goal of the antitrust laws. The main purpose of the antitrust laws is to prevent firms from acquiring and using market power to force consumers to pay more for their goods and services. Congress was primarily concerned that corporations would use market power "unfairly" to extract wealth from consumers. These wealth transfers were of …

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

All Faculty Scholarship

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?

A Framework For Evaluating The Antitrust Legacy Of The Reagan Administration, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Antitrust Synthesis, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Panel Discussion On Self-Regulation, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Book Reviews: "Antitrust Law And Economics": Responding To An Ivory Tower Critique, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Monopoly Power And Market Power In Antitrust Law, Thomas G. Krattenmaker, Robert H. Lande, Steven C. Salop

All Faculty Scholarship

This article seeks an answer to a question that should be well settled: for purposes of antitrust analysis, what is 'market power' and/or 'monopoly power'? The question should be well settled because antitrust law requires proof of actual or likely market power or monopoly power to establish most types of antitrust violations.

Examination of key antitrust law opinions, however, shows that courts define 'market power' and 'monopoly power' in ways that are both vague and inconsistent. We conclude that the present level of confusion is unnecessary and results from two different but related errors:

(1) the belief or suspicion that …

Do The Doj Vertical Restraints Guidelines Provide Guidance?, Alan A. Fisher Ph.D., Frederick I. Johnson, Robert H. Lande

All Faculty Scholarship

Vertical restraints come in a glittering menu of exceptional variety, including resale price maintenance (RPM), tying, exclusive dealing, requirements contracts, "best efforts" clauses, full-line forcing, airtight and nonairtight exclusive territories, customer restrictions, areas of primary responsibility, profit-passover provisions, restrictions on locations of outlets, and dual distribution. Firms sometimes combine vertical restraints into packages. The great variety of individual and combined vertical restraints complicates the discovery of market effects. Indeed, identifying what restraint(s) a given firm is using at any particular time can be difficult.

An Anti-Antitrust Activist?; Podium, Robert H. Lande

All Faculty Scholarship

No abstract provided.

New Forces Chip Away At Agencies' Policy Of Antitrust Abandonment, Joe Sims, Robert H. Lande

All Faculty Scholarship

Antitrust is at a crossroads. the federal agencies are dominated by the economic approach of the Chicago school, but congress and the states are expressing sharp dissent.

The End Of Antitrust—Or A New Beginning?, Joe Sims, Robert H. Lande

All Faculty Scholarship

Antitrust is in one of its periodic states of decline. Historically, it has rebounded from these valleys to rise to even higher peaks of enthusiastic public and political popularity. The first period of substantial antitrust activity began 15 years after the passage of the Sherman Act, and lasted into the 1920s. The Great Depression saw antitrust at its lowest, followed by Thurman Arnold's aggressive tenure, but World War II was hardly a period of great antitrust enthusiasm. The 1950 Celler-Kefauver amendment to section 7 began the golden age of antitrust, a period that lasted until the middle 1970s. So far, …

Casenotes: Antitrust — Parent Corporation And Its Wholly Owned Subsidiary Are Incapable Of Conspiring With Each Other Under Section One Of The Sherman Act. Copperweld Corp. V. Independence Tube Corp., 104 S. Ct. 2731 (1984), Linda T. Penn

University of Baltimore Law Review

No abstract provided.

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

All Faculty Scholarship

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.

Vertical Restraints Guidelines: A Step Forward, Joe Sims, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Doj Adds Revisionist Dollop To '82 Merger Guidelines, Joe Sims, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Efficiency Considerations In Merger Enforcement, Alan A. Fisher Ph.D., Robert H. Lande

All Faculty Scholarship

This is one of the first articles to demonstrate that the primary goal of antitrust is neither exclusively to enhance economic efficiency, nor to address any social or political factor. Rather, the overriding intent behind the merger laws was to prevent prices to purchasers from rising due to mergers (a wealth transfer concern). This is the first article to show how to analyze mergers with this goal in mind. Doing so challenges the fundamental underpinnings of Williamsonian merger analysis (which assumes mergers should be evaluated only in terms of net efficiency effects).

In this and three related articles we re-do …

Afterword: Could A Merger Lead To Both A Monopoly And A Lower Price?, Alan A. Fisher Ph.D., Robert H. Lande, Walter Vandaele

All Faculty Scholarship

This article demonstrates that significant net efficiencies from a merger could cause prices to decrease, even if the merger results in a monopoly. The article also shows that a price focus would require substantially more efficiencies to justify an otherwise anticompetitive merger than would an efficiency focus (in other words, it re-does the Williamsonian merger tradeoff, using price to consumers instead of net efficiencies as its focus). We demonstrate this by calculating how large the necessary efficiency gains would have to be to prevent price increases under different market conditions.

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

All Faculty Scholarship

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 …