Antitrust and Trade Regulation Commons^™

Modern Economic Analysis And Antitrust Law: A Guide, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This book presents a modern economics approach to antitrust law. It expands upon and supplements traditional legal analysis of antitrust law and policy. It does so by analyzing antitrust legal standards and case law through the lenses of industrial organization economics and decision theory. The work is intended to be a comprehensive introductory guide for students, practitioners, and anyone else interested in learning the core of modern antitrust economics. Understanding the economics of antitrust and decision theory and applying that reasoning to specific cases and issues are critical steps for successfully studying and practicing antitrust law and policy. It treats …

[Early Bird] The Texas Common Ownership Litigation: Sustainability, Competition, And The Boundaries Of Asset Manager Capitalism, Federico Ghezzi

Yearbook of Antitrust and Regulatory Studies

This article analyzes the recent attempt by the Texas Attorney General to invoke the common ownership doctrine as a new antitrust weapon against large institutional investors allegedly engaged in coordinated ESG strategies. The case represents a peculiar reversal of the traditional logic of the theory: rather than being used to constrain horizontal shareholdings that may reduce competition, common ownership is deployed here to challenge collective action aimed at promoting environmental sustainability. The paper situates this development within the broader debate on the anticompetitive effects of horizontal ownership, briefly examining the economic assumptions underlying the theory, the limits of its empirical …

Concentration And Coordination: Antitrust Perspectives On Single-Family Rentals, Margaret Traubert

University of Cincinnati Law Review

No abstract provided.

From Tech To Table: Moving Sustainable Proteins Beyond Marketplace Bottlenecks, Andy Fitch, Cynthia Hanawalt

Sabin Center for Climate Change Law

Climate advocates may hope to see dramatic commercial breakthroughs over the next several decades that reshape emissions-intensive components of our everyday lives, such as our dietary choices, household energy use, and transportation habits. Yet transforming these consumer sectors will require not only scientific ingenuity and entrepreneurial ambition, but also nimble competition policy to address complex market dynamics.

Sustainable food production likely necessitates substantial departure from traditional livestock-management practices. Agricultural production currently generates about one-third of global greenhouse gas emissions (“GHGs”). Animal livestock account for the largest share, while occupying roughly 40% of the Earth’s habitable land, much of which could …

China Samr’S Review Process In Cross-Border Technology M&A, Gabriel A. Paknia

Honors Scholar Theses

China's State Administration for Market Regulation (SAMR) holds discretionary authority over the merger review process. This paper examines whether SAMR's review of technology and semiconductor transactions since the governing body's inception in 2018 reflects political-economic incentives beyond what competitive harm analysis alone would explain. The paper is broken into three core pillars: accessing SAMR's regulatory code to identify how flexibility to exercise discretion is codified, scrutinizing SAMR's full adverse outcome record for overrepresentation of technology and semiconductor deals, and deconstructing a semiconductor megamerger to illustrate those mechanisms with the backdrop of real time geopolitical events. I find that technology and …

Antitrust And Economic Liberty, Doha Mekki

Center for Law and the Economy

Over the last few years, antitrust plaintiffs have won important victories in cases against digital platforms. They’ve won important cases involving real estate associations, elite private colleges, sports leagues, pharmaceutical companies, pork processors, and health insurers. In some cases, they have secured record-breaking jury verdicts and redress for harmed individuals.

The U.S. Department of Justice’s Antitrust Division has been active too. Last year, a federal court held that Google illegally maintained monopolies in general internet search and related search advertising markets. That case is about access to the information we see and use to make decisions about how we want …

Reverse Breakup Fees And Antitrust Approval, Albert H. Choi, Abraham L. Wickelgren

Law & Economics Working Papers

The paper examines the antitrust implications of use of reverse breakup (termination) fees in mergers. By promising to pay a reverse breakup fee to the target if the proposed merger does not get the necessary antitrust approval, the acquirer can signal to the antitrust authority that the merger is more likely to be pro-competitive. A large reverse breakup fee can also function as a commitment device by the acquirer to spend more resources in case the merger is challenged by the antitrust authority. While the first, signaling function is efficiency enhancing, the second, commitment function can lead to an efficiency …

The Lost Origins Of Antitrust, William Magnuson

Faculty Scholarship

Over the last decade, the once-sleepy field of antitrust has suddenly sprung to the forefront of public attention. The digitalization of the economy, the expansion of Big Tech, and the rise of platform monopolies have all raised deep questions about the nature of corporate power and law’s capacity to constrain it. Some scholars have argued that antitrust enforcement must be reinvigorated in substance and broadened in scope in order to combat rapidly rising economic inequality. Others have argued that antitrust law is ill-equipped to address these broad moral issues and instead must be re-focused on its traditional principles of consumer …

Doctrinal Intent Versus Institutional Reality: The Gulf Countries' Antitrust Objectives, Nora Memeti

Yearbook of Antitrust and Regulatory Studies

This paper examines the intriguing contrast between the ambitious goals of antitrust laws in the Gulf countries and the reality of their enforcement. While this region seeks to protect competition and curb monopolistic practices, only Kuwait and the Kingdom of Saudi Arabia (KSA) have made significant strides in achieving these ideals.

Through a comparative legal analysis, this paper examines how the statutory objectives of competition law in Qatar, Bahrain, Oman, and the UAE often remain more rhetorical than substantive, with enforcement primarily symbolic. In contrast, Saudi Arabia demonstrates some enforcement activity, although its alignment with legislative objectives remains uncertain. Kuwait's …

Green Rules, Fragmented Fields: Member-State Approaches To Sustainability In Eu Competition Law, Niccolò Galli, Armando Santoni

Yearbook of Antitrust and Regulatory Studies

This article provides a comparative, normative-evaluative examination of how sustainability is being incorporated into European competition law. Combining doctrinal legal analysis with economic reasoning, it clarifies competing definitions of sustainability, maps the contest between the consumer-welfare paradigm and sustainability proponents, and evaluates the legal and institutional implications of the Commission’s 2023 Horizontal Cooperation Guidelines. Drawing on national initiatives across Member States plus the UK, the study highlights contrasting instruments, from Austria’s statutory environmental exemption to the Dutch soft-law safe harbour and Greece’s experimental sustainability sandbox, and shows how these divergent approaches produce fragmentation and legal uncertainty for cross-border cooperative initiatives. …

Consumers, Laborers, And Antitrust, Oh My! Why Labor Considerations Should Be Examined In Antitrust Law Through The Lens Of U.S. V. Bertelsmann Se & Co. Kgaa, Jodi Nicole Kain

University of Miami Business Law Review

Imagine the disappointing feeling of walking into a bookstore and finding shelves filled with only a narrow and non-diverse selection of titles. This feeling nearly became a reality when the Department of Justice (“DOJ”) won an action blocking a proposed merger between mega publishing houses Penguin Random House and Simon & Schuster in the case United States v. Bertelsmann SE & Co. KGaA (2021) (“Bertelsmann”). The DOJ claimed that the merger would harm consumers by reducing the diversity of books available and directly harm authors—the creative labor force—by limiting competition for publishing deals and suppressing their compensation. For the first …

Control Capture And Competition, D. Daniel Sokol, Robert J. Rhee

UF Law Faculty Publications

This Essay identifies an emerging problem in antitrust law and policy, particularly in the technology industry. Antitrust doctrine has historically revolved around internal control of firm, i.e., equity acquisition. It focuses on the capture of internal control. Mergers and acquisitions trigger regulatory review. In these deals, the locus of anticompetitive behavior lies in ownership and internal governance. However, one can capture control through various ways. An emerging problem in antitrust law is external exertion of control through contract. Competition can be stifled, and thus price, non-price, and innovation factors can be controlled or manipulated through the levers of control existing …

Antitrust And Tech Giants: Learning From United States V. Google Llc, Marcus D’Agostino

Fordham Journal of Corporate & Financial Law

This Note addresses the evolution of antitrust regulation and enforcement in the United States, with a focus on the recent case of United States v. Google LLC. That case is used to frame the broader problem of insufficient remedies being implemented against large technology firms. The mild remedies granted to the government in Google reinforce the findings of the 2020 Congressional Report on Digital Competition. The Report recommended changes to the antitrust laws that would revive structural separation as a remedy. This Note argues that the body of evidence presented compels structural separation to be used more frequently as the …

Rethinking The Key Role Of Private Antitrust Enforcement, Filippo Lancieri

Georgetown Law Faculty Publications and Other Works

This Article focuses on the institutional design of American competition policy. It argues that any long-term effective revival of U.S. antitrust policy requires a better acknowledgement of the key and irreplaceable role played by private litigation and proposes a rethink of private anti-trust enforcement policy.

To unpack the nuanced interconnection between public and private competition enforcement, the Article begins by tracing the rise and fall of private antitrust. It builds on a novel, hand-coded, and comprehensive analysis of the entire Supreme Court antitrust track record—all 474 decisions over 130 years—to outline how an ideologically …

Rewriting The Monopoly Playbook: Implications Of U.S. V. Google For Antitrust Jurisprudence, Amilcar Torres

University of Cincinnati Law Review

No abstract provided.

"Cleaning House" An Analysis Of The Settlement In House V. Ncaa, Adam Gross

University of Cincinnati Law Review

No abstract provided.

Controlling Private Economic Power: Lessons Learned From The Us Experience In The First Decades Of The 20th Century, Thierry Kirat, Frédéric Marty

Yearbook of Antitrust and Regulatory Studies

Concerns related to Big Techs have led to a proliferation of legislative initiatives to complete competition rules with regulatory devices that would lead gatekeepers to be subject to obligations to preserve an equality of opportunities on the market. Within this context, this contribution revisits American decision-making practice from the end of the 19th century and the beginning of the 20th century to show how regulatory-type interventions and the enforcement of competition rules have been activated to control the strategies of firms acting as gatekeepers. What we can learn from this experience is that a big firm having private regulatory power …

The Problem Of Market Power In Postwar America: Antitrust Law, Regulatory Discourse, And Changing Ideas Of Market Power, Laura Phillips-Sawyer

Scholarly Works

US antitrust law prohibits anticompetitive restraints of trade, including collusion among firms and single-firm monopolization. The law serves as a democratic check against concentrations of private economic power. However, in the post-World War II era, the law has changed largely through case law, rather than through statutory interventions. Thus, understanding the role that antitrust law has played in reconciling capitalism and democracy requires us to ask what has influenced changes to antitrust law. This chapter traces antitrust law’s postwar development across three key periods: 1940–1970s, mid-1970s to 2010s, and 2010s to present. It argues that each era’s approach to the …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

The Essence Of An Antitrust Violation, Thomas A. Lambert

Faculty Publications

Judicial embrace of the consumer welfare standard reduced the indeterminacy and political manipulability of U.S. antitrust law. Continual invocations of antitrust’s consumer welfare focus, however, have created the misimpression that consumer harm is a sufficient, not merely a necessary, condition for condemning antitrust-relevant behaviors like agreements in restraint of trade and exclusion-causing unilateral acts. Such a “consumer harm sufficiency” view underlay the plaintiffs’ claims in Epic Games v. Apple and FTC v. Qualcomm and has inspired scholarly proposals to condemn various antitrust-relevant behaviors simply because they occasion consumer harm.

Antitrust economics and dynamic efficiency considerations call for rejection of the …

Beyond Data Deletion: Addressing Anticompetitive Conduct In The Era Of Machine Learning, Vaibhav Srikaran

Washington Journal of Law, Technology & Arts

Like a hamster wheel, the “virtuous cycle” of data collection, collation, and computation spins to create algorithms to assist modern business operations. Companies accumulate data by the terabyte with hopes that their army of data scientists can make sense of all the noise using machine learning. Potential profits encourage companies to seek out data—sometimes unlawfully through collusion. The use of unlawfully collected data in algorithms harms competition. Such data provides a competitive edge that is not accessible to all marketplace participants. Antitrust laws can police unlawful data sharing, but existing remedies are not effective for restoring competition.

Merely deleting ill-gotten …

The Last Great American Dynasties: Lessons In Monopoly Prevention From Mergers In Entertainment And Aviation, Margaret Bibby

Journal of Legislation

On November 1, 2022, Taylor Swift first announced The Eras Tour. The pent-up demand for a Taylor Swift concert was massive: she had not toured since the Reputation Stadium Tour in 2018, the Lover Fest Tour set for 2020 was canceled due to the COVID-19 pandemic, and her streaming numbers and popularity were higher than ever. The Eras Tour announcement stated that Ticketmaster would be the sole ticketing platform, and 3.5 million fans, known as “Swifties,” registered for a chance to purchase tickets. When presale opened on November 15, 2022, disaster struck for millions of fans. Swifties were met with …

Legal Market Decartelization, Milan Markovic, Nuno Garoupa

Faculty Scholarship

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization - the weakening of the lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led …

Google’S Chrome Antitrust Paradox, Shaoor Munir, Konrad Kollnig, Anastasia Shuba -- Independent Researcher, Zubair Shafiq

Vanderbilt Journal of Entertainment & Technology Law

This Article examines Google’s dominance of the browser market, highlighting how Google’s Chrome browser plays a critical role in reinforcing Google’s dominance in other markets. While Google portrays Chrome as a neutral platform built on open-source technologies, this Article shows that Chrome is, in fact, instrumental in Google’s strategy to reinforce its dominance in the online advertising, publishing, and browser markets. The examination of Google’s strategic acquisitions, anticompetitive practices, and the implementation of so-called “privacy controls” underlines that Chrome is far from a neutral gateway to the web. Rather, it serves as a key tool for Google to maintain and …

The “Marketplace” Myth: Addressing Amazon’S Defense To Product Liability Claims, Andrew Ackley

Seattle University Law Review Online

Many courts continue to analyze law as if we have not evolved from the early days of the internet, when Facebook was a “social networking” site, AOL made messages “instant,” and eBay let everyone auction random items. The internet connected people. Because it did not touch them, it could not harm them. However, with storefronts closing, brick-and-mortar retail chains declaring bankruptcy, and “Uber lots” popping up at airports, the internet “cloud” has touched down all over the country, and online businesses are now harming people just as human actors and brickand-mortar stores always have.

While generating thousands of new ride …

The Healing Power Of Antitrust, Theodosia Stavroulaki

Northwestern University Law Review

Millions of Americans live in hospital deserts—communities where people lack geographic access to hospitals and primary care physicians. People living in these deserts often miss doctor appointments, delay necessary care, and stop adhering to their treatment. In this way, hospital deserts exacerbate the health disparities plaguing America. This Article demonstrates that hospital deserts are not inevitable but the result of several business strategies—including noncompete agreements and merging with competitors—and antitrust enforcers’ unwillingness to recognize these harmful practices as antitrust violations. To cure the issue of hospital deserts, this Article makes three proposals. First, antitrust enforcers and the courts should expand …

Time Is Money And Anticompetitive: The Luxury Watch Industry's Weaponization Of Intellectual Property Against The Right To Repair, Isha Jadhav

American University Business Law Review

Since 2010, the Federal Trade Commission (FTC), Department of Justice (DOJ), legislators, and activists have jointly worked together to implement consumer rights in repairing personal property on both a state and federal level in the United States. These efforts have largely targeted the automobile and technology industries; these sectors have been known to “tie” their goods to authorized repair services, limiting consumer choice on where, how, and when to repair their goods. However, this issue is not limited to the automobile and technology industries, as luxury watches have gained newfound popularity, creating right to repair issues within the industry.

Despite …

Why We Need A Merger Cap: An Antitrust Lesson From General Electric, Carl T. Bogus

Journal of Legislation

This Article makes a modest proposal from a radical perspective. The proposal is this: Once a firm reaches a certain size, it should be prohibited from growing larger through mergers or acquisitions. The radical perspective is that antitrust law should be concerned with corporate size. It was a century ago that Louis D. Brandeis coined the term “curse of bigness,” and his concern about the social and political consequences of corporate size has long since fallen out of favor. Today, the consensus view is that antitrust should be concerned exclusively with economics. Current doctrine allows corporations to merge, provided only …

Redefining The Relevant Market: Abandonment Or Return To Brown Shoe, Daniel A. Hanley

Dickinson Law Review (2017-Present)

Defining a relevant market is arguably the most important requirement in antitrust litigation. Between the 1890s and the 1940s, defining a relevant market was a simple and generalized process, typically undertaken by courts as a cursory matter. However, in the 1960s, defining relevant markets became a centerpiece of antitrust litigation. The modern method originates from the Supreme Court’s landmark 1962 decision in Brown Shoe v. United States. The method commonly known as the Brown Shoe test requires judges to construct relevant markets by carefully analyzing accessible and understandable qualitative data, such as internal corporate documents and consumer surveys. Since the …