Antitrust and Trade Regulation Commons^™

Workable Antitrust Policy, Frank H. Easterbrook

Michigan Law Review

One of the schools of thought in the economics of antitrust was called "workable competition." The adherents to this school believed that markets were prone to cartelization and that concentration was death on competition, but that occasionally competition might prove "workable." These scholars were suspicious of almost every industrial practice they saw. One of the manifestations of their work came to be known as the "structure-conduct-performance paradigm." The thesis was that you could tell whether competition was feasible from the structure of the market. If the top four firms had fifty percent or so of the sales, we should abandon …

Consumer Beware Chicago, Eleanor M. Fox

Michigan Law Review

Professor Hovenkamp's article, Antitrust Policy After Chicago, reveals an important truth. Chicago School economics does not provide a superior roadmap to efficiency. I would take the critique one step further and assert: The main gap between Chicago and its critics is not even the design of the roadmap to efficiency. The main gap is social and political philosophy.

Rhetoric And Skepticism In Antitrust Argument, Herbert Hovenkamp

Michigan Law Review

In his essay on Workable Antitrust Policy Judge Easterbrook professes an extraordinary skepticism about economic models in general, and particularly about the ability of courts to use economic models to distinguish the competitive from the anticompetitive. But a profession of skepticism is itself a very powerful rhetorical device; it creates a perception of tough-mindedness, of refusal to yield real-world observations to analytic models or other abstractions, of extreme reluctance to accept any proposition that has not been clearly proven. Further, it is always very easy to be a skeptic, because every position ever taken except perhaps for a few tautologies …

Divestiture As A Remedy In Private Actions Brought Under Section 16 Of The Clayton Act, Paul V. Timmins

Michigan Law Review

This Note argues that private parties should be permitted to bring suits for divestiture under section 16 of the Clayton Act. Part I analyzes the language of section 16 and the relevant legislative history of the Clayton Act and concludes that Congress did not intend to limit the injunctive relief available to private parties. Part II argues that courts should be free to exercise their broad equity powers to grant the most appropriate and effective relief, including divestiture, to an injured plaintiff. Finally, Part III contends that policy considerations disfavor omitting divestiture from the types of equitable remedies that a …

Antitrust Policy After Chicago, Herbert Hovenkamp

Michigan Law Review

This article begins with the premise that nothing - not even an intellectual structure as imposing as the Chicago School - lasts forever. In fact, a certain amount of stagnation is already apparent. Most of the creative intellectual work of the Chicago School has already been done - done very well, to be sure. The new work too often reveals the signs of excessive self-acceptance, particularly of quiet acquiescence in premises that ought to be controversial.

Today the cutting edge of antitrust scholarship is coming, not from protagonists of the Chicago School, but rather from its critics. The critics began …

Modifications Of Antitrust Consent Decrees: Over A Double Barrel, John D. Anderson

Michigan Law Review

This Note will attempt to determine the correct standard of review for all modifications of existing consent decrees. Part I. A. examines the current standards for modifications of consent decrees. It concludes that the APP A does not apply to such orders. Part I. B. then examines the differing standards that are currently applied to defendant-initiated modification motions without the government's consent, government-initiated modification motions without the defendant's consent, and consented-to modifications. Part II argues that these varying standards have little justification since the same substantive concerns exist in all modification cases. Part III explores the two major concerns - …

The Distinction Between The Scope Of Section 2(A) And Sections 2(D) And 2€ Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note argues that sections 2(d) and 2(e) were meant to cover only disguised discriminations not within the scope of section 2(a). If the seller's conduct falls within the scope of section 2(a), that section must be applied regardless of whether or not the conduct also falls within the language of section 2(d) or 2(e). Only when section 2(a) does not apply is recourse available under sections 2(d) and 2(e). Part I of this Note looks at general antitrust policy, the limitations of the Clayton Act that led to the enactment of the Robinson-Patman Act, and the legislative history of …

Redefining The "Cost Of Suit" Under Section Four Of The Clayton Act, Michigan Law Review

Michigan Law Review

This Note explores the possible interpretations of the "cost of suit" provision and the policies which it implicates. It concludes that the Copper Liquor interpretation best advances the goals of the antitrust laws set forth by Congress and the courts. Part I examines the development of the present controversy among the circuits. Part II analyzes and refutes the arguments which have been set forth in support of the traditional rule. Part III explores the policy considerations which underlie private treble damage actions and concludes that the Copper Liquor interpretation of the "cost of suit" provision serves them better than does …

Third World Trade Partnership: Supranational Authority Vs. National Extraterritorial Antitrust--A Plea For "Harmonized" Regionalism, Wolfgang Fikentscher

Michigan Law Review

That "Third World countries" should receive the assistance of the "industrialized nations" in increasing the level of their economic development is a matter beyond dispute. Yet the years following the "economic decade" of the 1970's have made apparent a crisis in the concepts underlying this philosophy of Third World assistance. The nature of this crisis has not yet been fully ascertained, and the following text does not undertake that task. Rather, it starts from the general feeling among experts involved in one way or another with "development aid" that the paths so far followed and the methods so far applied …

Competition, Integration And Economic Efficiency In The Eec From The Point Of View Of The Private Firm, Michel Waelbroeck

Michigan Law Review

As early as 1956, experts appointed by the six original Member State governments to investigate measures to pursue integration after the failure of the European Defence Community clearly established this link between the abolition of barriers to trade and an increase in the intensity of competition. In what has come to be known as the "Spaak Report," the experts noted the technology gap then separating Europe from the United States and proposed, as a remedial measure, the creation of a ''vast zone of common economic policy, constituting a powerful production unit, and allowing a continued expansion, and increased stability, an …

Civil Enforcement Of Eec Antitrust Law, Francis G. Jacobs

Michigan Law Review

This paper examines whether and to what extent private civil remedies are, as a matter of law, and ought to be, as a matter of policy, available in the courts of the EEC Member States for breach of the antitrust provisions of the Treaty establishing the European Economic Community (the Treaty of Rome). These questions are addressed in Part I. Part II sets the issues in the broader context of the enforcement of the Treaty obligations of Member States. In this way, it is hoped to elucidate the relationship between national law and Community law, and also indirectly to illuminate …

Law And Economy, Michigan Law Review

Michigan Law Review

A Review of Law and Economy by Kelvin Jones

Folded, Spindled, And Mutilated: Economic Analysis And U.S. V. Ibm, Michigan Law Review

Michigan Law Review

A Review of Folded, Spindled, and Mutilated: Economic Analysis and U.S. v. IBM

Recognition Of The National Football League As A Single Entity Under Section 1 Of The Sherman Act: Implications Of The Consumer Welfare Model, Myron C. Grauer

Michigan Law Review

This article argues that Justice Rehnquist has analyzed the operational structure of the NFL in a manner that is consistent with proper antitrust enforcement policy, and expands upon the view that he espoused. It contends that the NFL is analogous to a law firm partnership, with the teams analogous to departments or partners that can make operating rules for the firm without fear of violating section 1 of the Sherman Act. In arriving at the opposite conclusion, both the Oakland Raiders and NASL courts relied on several cases involving player restraints that presupposed that teams in professional sports leagues, such …

The Scope Of Judicial Review Of Consent Decrees Under The Antitrust Procedures And Penalties Act Of 1974, Michigan Law Review

Michigan Law Review

In the wake of this uncertainty, this Note analyzes the proper scope of judicial review of consent decrees. The Note argues that to further the policies embodied in the APP A, courts should undertake intense review of proposed settlements before entering them as final judgments. Both the congressional intent in enacting the APP A and the public's interest in effective enforcement of the antitrust laws support intense judicial review. The Note then demonstrates that the deferential standard that some courts have applied is derived mainly from a case that is inapplicable to the review of consent decrees. Finally, the Note …

Employee Standing Under Section 4 Of The Clayton Act, Michigan Law Review

Michigan Law Review

This Note will focus on the confusion that plagues one category of antitrust standing cases, those in which an employee alleges wrongful discharge for his refusal to participate in a scheme that violates the antitrust laws. Conflicts among the circuits in their analysis and resolution of these employee standing cases have not been definitively settled by the Supreme Court's recent pronouncements on the right to seek recovery under section 4. This Note argues that these recent Supreme Court decisions, as well as the policies behind the antitrust laws, weigh in favor of permitting an employee to maintain a section 4 …

Reforming American Antitrust In Foreign Commerce, James A. Rahl

Michigan Law Review

A Review of Antitrust and American Business Abroad (Second Edition) by James R. Atwood and Kingman Brewster

Controlling Jury Damage Awards In Private Antitrust Suits, Michigan Law Review

Michigan Law Review

This Note takes the position that the courts should better control jury manipulation in private antitrust actions. Part One suggests that manipulation is likely in such actions, and argues that this manipulation off ends the legislative judgment reflected in the trebling provision without leading to more equitable results. Part Two presents two complementary proposals to control jury manipulation of treble damage awards. These proposals aim to induce the jury to return accurate awards based on the economic loss actually suffered by the plaintiff.

Mobility Factors In Antitrust Cases: Assessing Market Power In Light Of Conditions Affecting Entry And Fringe Expansion, William H. Wentz

Michigan Law Review

To assist courts and litigants in developing and utilizing information on mobility factors in a meaningful manner, I have attempted in this Article to outline a basic approach for analyzing the competitive and efficiency significance of mobility factors in a litigative context. In Part I, I lay the necessary foundation: discussing the importance of mobility factors in accepted economic theory, explaining the sources of the current confusion and controversy about "entry barriers" and deriving from the debate areas of fundamental agreement among economists. Building on this common ground, I develop in Part II a basic approach to consideration of mobility …

Antitrust Suits By Targets Of Tender Offers, Frank H. Easterbrook, Daniel R. Fischel

Michigan Law Review

We explore in this Article the basis and consequences of the target's suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor "private attorney general" because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of "antitrust injury" and therefore …

Enjoining The Application Of The British Protection Of Trading Interests Act In Private American Antitrust Litigation, Michigan Law Review

Michigan Law Review

This Note argues that American courts should mitigate the impact of the PTIA on American antitrust litigation by enjoining British defendants from pursuing their rights under the Act. Part I examines the Act's principal effects on antitrust enforcement and the settlement process, and concludes that these effects are serious enough to warrant judicial intervention. Part II establishes a court's power to issue transnational antisuit injunctions, and considers the propriety of doing so. After briefly rejecting two practical objections to such injunctions - that they are impossible to enforce and will provoke international retaliation - Part II analyzes the doctrine of …

Disclosure Of Grand Jury Materials Under Clayton Act Section 4f(B), Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that the latter courts are correct: Congress never intended to abrogate or modify rule 6(e)'s "particularized need" standard when it enacted section4F(b). Part I discusses whether Congress intended section 4F(b) to require the Attorney General to disclose grand jury materials to state attorneys general upon request, thereby abrogating rule 6(e)'s explicit prohibition against such disclosure. Part II examines the statutory language and legislative history of section). 4F(b) to determine whether Congress intended section 4F(b) to modify rule 6(e)'s "particularized need" standard. Finally, Part III evaluates the policies affected by liberalized disclosure of grand …

International Antitrust, James A. Rahl

Michigan Law Review

A Review of United States, Common Market and International Antitrust: A Comparative Guide by Barry E. Hawk

Contribution And Antitrust Policy, Michigan Law Review

Michigan Law Review

This Note examines the contribution controversy from an antitrust policy perspective. Part I summarizes the Professional Beauty, Abraham Construction, and Olson Farms decisions and sketches the major provisions of the Bayh Bill and the ABA Statute. Part II discusses four antitrust policy goals that figure prominently in both Circuit Court decisions and Congressional debate: fairness, deterrence, promotion of settlement, and reduced complexity of litigation. Part III argues that none of the rigid contribution rules proposed since Professional Beauty achieves the optimal balance of these policy goals. The Note concludes that a flexible rule permitting courts to assess the propriety …

Monopolistic Competition, Second Best, And The Antitrust Paradox: A Review Article, Richard S. Markovits

Michigan Law Review

A Review of The Antitrust Paradox: A Policy at War with Itself by Robert H. Bork

Bribery And Brokerage: An Analysis Of Bribery In Domestic And Foreign Commerce Under Section 2 ( C ) Of The Robinson-Patman Act, Michigan Law Review

Michigan Law Review

This Note first analyzes the substantive and jurisdictional criteria of section 2(c) to evaluate the possible and the desirable scope of its applicability to commercial bribery. The Note next asks whether this statute reaches bribery of domestic and foreign government officials and concludes that where the requirements of section 2(c) are otherwise met and where the person accepting the bribe is acting administratively rather than politically, the statute could be applied to bribery of agents of domestic governments. However, a wholesale application of section 2( c) to bribery of foreign government agents would leave American competitors in foreign commerce defenseless …

Vertical Distribution Restraints After Sylvania: A Postscript And Comment, Martin B. Louis

Michigan Law Review

The Supreme Court's decision last term in Continental T. V., Inc. v. GTE Sylvania Inc. demonstrates once again the difficult antitrust problem posed by vertical distribution restraints and the Court's continuing inability to resolve it satisfactorily. Vertical distribution restraints consist of terms imposed by a manufacturer on its distributors limiting their freedom to redistribute goods. Such restraints vary widely in their details, but the basic forms involve restraints on the prices at which goods are distributed, the customers to whom they can be distributed, and the locations from which or territories in which they can be distributed. These restraints assist …

Price Discrimination Law And Economic Efficiency, Edward H. Cooper

Michigan Law Review

The Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C. § 13), undertakes to outlaw price "discrimination" upon proof of threatened injury to competition, and subject to specified defenses. Lawyers often bewail the fact that administration of this statute frequently fails to conform to an economist's notion of discrimination. For the most part, the complaints are addressed to the clear fact that, as drafted and interpreted, the statute wreaks unnecessary damage. In the name of protecting competition, competition and economic efficiency are often curtailed.

Antitrust Law: An Economic Perspective, Thomas E. Kauper

Michigan Law Review

A Review of Antitrust Law: An Economic Perspective by Richard A. Posner

Intra-Enterprise Conspiracy Under Section 1 Of The Sherman Act: A Suggested Standard, Michigan Law Review

Michigan Law Review

Section I of this Note analyzes the cases in which the Supreme Court has implied a doctrine of intra-enterprise conspiracy. Section II then sets forth the theoretical and practical difficulties that such a doctrine entails. Section III, in turn, considers previous proposals for limiting the scope of the intra-enterprise conspiracy doctrine and examines their deficiencies. Finally, section IV presents an alternative analysis of the intra-enterprise conspiracy issue and proposes a standard for determining when application of section 1 of the Sherman Act to parent-subsidiary relations is inappropriate.