Antitrust and Trade Regulation Commons^™

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

Scholarly Articles in Law Reviews & Journals

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 on …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

William & Mary Law Review

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman

William & Mary Law Review

In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.

This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …

The Present New Antitrust Era, Barak Orbach

William & Mary Law Review

Antitrust scholars frequently refer to an “ideological pendulum” to describe the rise and fall of trends in the evolution of antitrust law. This pendulum arguably swings between fairness and laissez-faire visions, while a technocracy vision moderates its motion. Mapping key phases in the evolution of antitrust law, I argue that a new antitrust era with distinctive characteristics has been forming in recent years.

The present new antitrust era is a product of growing tensions and contradictions among policy prescriptions. After several decades in which antitrust was a specialized field that drew little public attention, in the aftermath of the Great …

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

William & Mary Law Review

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each other (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

William & Mary Law Review

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

William & Mary Law Review

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Antitrust As Speech Control, Hillary Greene, Dennis A. Yao

William & Mary Law Review

Antitrust law, at times, dictates who, when, and about what people can and cannot speak. It would seem then that the First Amendment might have something to say about those constraints. And it does, though perhaps less directly and to a lesser degree than one might expect. This Article examines the interface between those regimes while recasting antitrust thinking in terms of speech control.

Our review of the antitrust-First Amendment legal landscape focuses on the role of speech control. It reveals that while First Amendment issues are explicitly addressed relatively infrequently within antitrust decisions that is, in part, because certain …

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

William & Mary Law Review

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …

“Competition Policy In Its Broadest Sense:” Michael Pertschuk’S Chairmanship Of The Federal Trade Commission 1977-1981, William E. Kovacic

William & Mary Law Review

In the late 1960s and through the 1970s, the Federal Trade Commission (FTC) undertook an ambitious program of reforms. Among other measures, the agency expanded the focus of antitrust enforcement to address economic concentration, including the use of Section 5 of the FTC Act to restructure dominant firms and oligopolies. In many ways Michael Pertschuk, who chaired the agency from 1977 to 1981, became the symbol of the FTC’s efforts to stretch the boundaries of antitrust policy—to pursue a conception of “competition policy in its broadest sense.” Despite a number of valuable accomplishments, the FTC achieved relatively few litigation successes, …

Wickard Through An Antitrust Lens, Alan J. Meese

William & Mary Law Review

No abstract provided.

Antitrust And The Politics Of State Action, Thomas B. Nachbar

William & Mary Law Review

In North Carolina State Board of Dental Examiners, the Court refused to exempt the board from the second element of Parker immunity—active supervision by the state—because the Board was made up largely of “active market participants.” This Article argues that the “active market participant” rule laid out in North Carolina State Board, while intuitively appealing, ignores important political values represented by antitrust law, values most evident in the context of state action immunity. By focusing on the potential market harm from self-interested regulators, the Court ignored a series of political harms inherent in the structure of the North …

Report On The Seminar ‘Compliance Programmes And Sanctions Imposed By Competition Authorities. What Conclusions For Uokik?’ Warsaw, 8 January 2019, Małgorzata Krasnodębska-Tomkiel

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Commune As A Natural Monopoly, Judgement Of The Sokik Of 22 February 2018 In Case Xvii Ama 17/15, Łukasz Presnarowicz

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Definition Of ‘Competitive Disadvantage’ And Discriminatory Prices; The Judgement Of The Cjeu Of 19 April 2018 In Case C-525/16 Meo – Serviços De Comunicações E Multimédia Sa V Autoridade Da Concorrência, Swietłana Podhajska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

The Calculation Of Fines. Commentary To The Judgment Of The Supreme Court Of 10 August 2016, Iii Sk 45/15, Mariusz Czyżak

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

Joseph E. Harrington Jr, The Theory Of Collusion And Competition Policy, Mit Press 2017, P. 133, Marcin Alberski

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Recenzja: Marcin Alberski.

Report On The 8th International Phd Students Conference On Competition Law. Białystok, 10.10.2018, Radosław Niwiński

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

When An Excessive Price Is Unfair – Analysis In The Light Of The Cjeu Preliminary Ruling In Akaa/Laa Case Dated 14 September 2017, Anna Laszczyk

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

This article critically assesses the CJEU preliminary ruling concerning the abuse of a dominant position by a copyright collecting society consisting of charging excessively high rates for licences for the public performance of musical works. The Latvian Supreme Court sent judicial questions to the CJEU concerning mostly the methods of determining the excessiveness of the prices, the difference between actually applied price and the benchmark price, indicating the existence of an abuse, and the chances for a dominant undertaking to offer an objective justifi cation. The CJEU reaffi rmed the appropriateness of applying other than price-cost methods, including comparison methods. …

Reception Of The Axiological Assumptions Of Anti-Trust Law To Application Of National Competition Law. Commentary To The Judgment Of The Supreme Court Of 20 March 2018, Iii Sk 5/17, Gabriela Raczykowska

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.