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1
Francis, Daniel. "Exclusion, Invasion and Abuse: Competition Law and its Constitutional Context." Cambridge Yearbook of European Legal Studies 12 (2010): 183–224. http://dx.doi.org/10.1017/s1528887000001798.
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Abstract The orthodox view of antitrust, or competition, law is that it should be interpreted and enforced purely to maximise economic efficiency. This chapter argues that it is by no means so clear that the maximization of efficiency should be the sole aim of competition law, either as a matter of common-law tradition or as a matter of ‘original’ legislative intent. Moreover, such a narrow approach neglects the important social and political components and consequences of antitrust policy and adjudication. This chapter further argues that antitrust law exhibits a striking resemblance, in many ways, to constitutional law, in particular to the extent that it constitutes a social and political response, administered by courts, to three particularly problematic applications of power—the ‘exclusion, invasion and abuse’ of the title. The first section of the chapter introduces these themes. In the second section, the exclusion-invasion-abuse model is described and the implications of each broad type of rule are explored. In the third section, the historical development of modern antitrust law is traced in order to show that the ‘pure efficiency’ standard lacks any credible historical claim to particular authority or authenticity. The fourth and final section, a brief survey of competing normative accounts of antitrust law offers in order to demonstrate the extent to which a myopic focus on efficiency can occlude the underlying policy consequences of antitrust law and policy-making.
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Francis, Daniel. "Exclusion, Invasion and Abuse: Competition Law and its Constitutional Context." Cambridge Yearbook of European Legal Studies 12 (2010): 183–224. http://dx.doi.org/10.5235/152888712802636175.
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AbstractThe orthodox view of antitrust, or competition, law is that it should be interpreted and enforced purely to maximise economic efficiency. This chapter argues that it is by no means so clear that the maximization of efficiency should be the sole aim of competition law, either as a matter of common-law tradition or as a matter of ‘original’ legislative intent. Moreover, such a narrow approach neglects the important social and political components and consequences of antitrust policy and adjudication. This chapter further argues that antitrust law exhibits a striking resemblance, in many ways, to constitutional law, in particular to the extent that it constitutes a social and political response, administered by courts, to three particularly problematic applications of power—the ‘exclusion, invasion and abuse’ of the title. The first section of the chapter introduces these themes. In the second section, the exclusion-invasion-abuse model is described and the implications of each broad type of rule are explored. In the third section, the historical development of modern antitrust law is traced in order to show that the ‘pure efficiency’ standard lacks any credible historical claim to particular authority or authenticity. The fourth and final section, a brief survey of competing normative accounts of antitrust law offers in order to demonstrate the extent to which a myopic focus on efficiency can occlude the underlying policy consequences of antitrust law and policy-making.
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Weber Waller, Spencer. "ABA Section of Antitrust Law, Intellectual Property and Antitrust Handbook, (2007)." World Competition 30, Issue 3 (September 1, 2007): 531–32. http://dx.doi.org/10.54648/woco2007034.
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Edelman, Jonathan. "Reviving Antitrust Enforcement in the Airline Industry." Michigan Law Review, no. 120.1 (2021): 125. http://dx.doi.org/10.36644/mlr.120.2.reviving.
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The Department of Transportation (DOT) has broad but oft overlooked power to address antitrust issues among airlines through section 411 of the Federal Aviation Act. However, the DOT’s unwillingness to enforce antitrust more aggressively may be translating into higher fares and fees for airline travelers. More aggressive antitrust enforcement is urgently needed. Recent research has revealed a widespread practice of common ownership in the airline industry, whereby investment firms own large portions of rival airline companies. Although this practice leads to higher prices and reduced competition, antitrust regulators, from the DOT to the Department of Justice and the Federal Trade Commission, have declined to take action. This Note argues that the DOT has the clear legal authority—and the responsibility—under section 411 to address common ownership among airlines by promulgating a rule that limits investors’ ability to own large shares of multiple airlines. DOT regulation in this area could pave the way for more muscular antitrust regulation among industry-specific agencies.
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Gilmore, Debra A. "The Antitrust Implications of Boycotts by Health Care Professionals: Professional Standards, Professional Ethics and The First Amendment." American Journal of Law & Medicine 14, no. 2-3 (1988): 221–48. http://dx.doi.org/10.1017/s0098858800006262.
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One rapidly evolving area of the law is the application of antitrust law to health care professionals. After the United States Supreme Court decided in 1975 that the “learned professions” were subject to the constraints imposed by the Sherman Antitrust Act, a significant number of antitrust actions have been filed against health care professionals and their professional organizations under Section 1 of the Sherman Act. These suits have found anticompetitive behavior in a variety of forms, ranging from tying arrangements and price-fixing agreements to certain forms of exclusive contracts and group boycotts.
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Weber Waller, Spencer. "Book Review: ABA Section of Antitrust Law, Antitrust Class Action Handbook (2010)." World Competition 33, Issue 3 (September 1, 2010): 542. http://dx.doi.org/10.54648/woco2010043.
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Weber Waller, Spencer. "Book Review: ABA Section of Antitrust Law, Antitrust and Associations Handbook (2009)." World Competition 32, Issue 3 (September 1, 2009): 437–38. http://dx.doi.org/10.54648/woco2009041.
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Weber Waller, Spencer, and Jennifer Woods. "Antitrust Transitions." World Competition 32, Issue 2 (June 1, 2009): 189–98. http://dx.doi.org/10.54648/woco2009019.
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Antitrust enforcement is entering a period of transition in the United States. The election of Barack Obama as President and his executive branch, regulatory, and judicial appointments will have important consequences for antitrust law and enforcement, although most observers believe that these changes will be relatively modest both substantively and in comparison to the matters of banking reform and economic stimulus. As part of that process of change, there has been no shortage of advice offered to first the Transition Team and now the Administration about how to handle competition policy going forward. Two of the more substantial efforts in this regard have come from well-established antitrust groups with very different perspectives and memberships. Both the Antitrust Section of the American Bar Association and the American Antitrust Institute have offered sophisticated lengthy public advice to the new Administration on how best to proceed in the competition law field. The reports are very different in nature and reflect the different nature of the institutions that prepared them. This essay takes a brief look at the transition reports offered by each organization and the vision they would offer for the new Administration.
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Curfman, Gregory. "Law Journals, Biomedical Journals, and Restraint of Trade." Journal of Law, Medicine & Ethics 50, no. 1 (2022): 195–99. http://dx.doi.org/10.1017/jme.2022.25.
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AbstractLaw journals permit submission of scholarly manuscripts to multiple journals concurrently, but biomedical journals strictly forbid submission of manuscripts to more than one journal at a time. Law journals may then compete for the publication of manuscripts. This article examines whether the single-submission requirement of biomedical journals may constitute restraint of trade in violation of Section 1 of the Sherman Antitrust Act.
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Bush, Darren. "Book Review: American Bar Association Section of Antitrust Law: Transportation Antitrust Handbook (ABA, 2014)." World Competition 38, Issue 3 (September 1, 2015): 464–65. http://dx.doi.org/10.54648/woco2015036.
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Weber Waller, Spencer. "Book Review: ABA Section of Antitrust Law, Market Definition in Antitrust: Theory and Case Studies (2012)." World Competition 36, Issue 1 (March 1, 2013): 186. http://dx.doi.org/10.54648/woco2013010.
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Bush, Darren. "Consumer Welfare Theory as an Ethical Consideration:: An Essay on Hipsters, Invisible Feet, and the “Science” of Economics." Antitrust Bulletin 63, no. 4 (December 2018): 509–28. http://dx.doi.org/10.1177/0003603x18815001.
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This article outlines the principle of efficiency as taken from physics and misapplied into the realm of economics. The result of the misapplication has been a narrow view of antitrust policy, culminating in an extremely conservative application of the consumer welfare standard. The result of such policy has been increasing concentration in many industries, abdication of any examination of monopoly power in the context of Section 2 of the Sherman Act, and dogmatic defense of “consumer welfare” as the only scientific approach to antitrust law. Part II reviews of the original goals of antitrust, as viewed without the lens of present-day economic efficiency. These are policy goals as described in legislative history and judicial development of common law. As such, they are ethical considerations distinct from consumer welfare. In part III, the article discusses the central tenets of economics in antitrust policy. These central notions are policy considerations that are misapplications of physics. Part IV discusses the physics definition of efficiency, with some insights as to the issues arising from adopting such a standard in terms of antitrust markets. Part V addresses the failures of antitrust using the lens of physics, explaining that consumer welfare is an ethical argument, not a scientific one. Part VI addresses other potential ethical standards for antitrust enforcement, as well as empirical evidence that support such norms. Part VII offers concluding thoughts where the article argues that there are superior ethical norms that would boost antitrust enforcement and that are consistent with the goals of antitrust.
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Odudu, Okeoghene. "The Role of Specific Intent in Section 1 of the Sherman Act: A Market Power Test?" World Competition 25, Issue 4 (December 1, 2002): 463–91. http://dx.doi.org/10.54648/5108307.
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Whilst there is an increasing tendency to look exclusively to economics for solutions to the problems of antitrust, this paper defends the role of specific intent. In Barry Wright Corporation v. ITT Grinnell Corporation, Judge Stephen Breyer seemed to reject any role for specific intent in antitrust analysis, a sentiment reaffirmed by Judge Frank Easterbrook in A. A. Poultry Farms v. Rose Acre Farms. This paper argues that since economics fails to provide a determinative test for market power, the courts can and have used specific intent, as a non-economic market power test in applying § 1 of the Sherman Act. After explaining the rationale for using specific intent as a market power test and showing that it has been used as such by the courts, I argue that Judges Bryer and Easterbrook rejected only certain methods of determining specific intent, rather than the utility of the concept in antitrust.
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Csirszki, Martin Milán. "The Comparison of the US and EU Agricultural Antitrust Exemptions." YEARBOOK OF ANTITRUST AND REGULATORY STUDIES 15, no. 25 (November 2022): 137–74. http://dx.doi.org/10.7172/1689-9024.yars.2022.15.25.6.
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The article aims to compare the sectoral antitrust exemption for agriculture that exists in the United States (US) and the European Union (EU). The roots for the privileged position of agriculture under antitrust laws date back to 1914. Section 6 of the Clayton Act was the first US law which exempted certain cooperatives. In 1922, the protection was extended to a broader range of agricultural entities by the Capper-Volstead Act. These two acts have since then determined the scope and extent of the US exemption but have evolved through judiciary interpretation. The EU has had a similar exemption for agriculture since the beginnings of European integration. After presenting briefly the likely explanations for the privileged treatment of this sector under antitrust, the article aims to analyse the regulations in force in order to explore their similarities and differences. The analysis also seeks to answer the question of whether the ‘accusation’ that EU competition law – in contrast with the US antitrust regime – is not purely based on efficiency considerations can also be extended to the agricultural sector’s privileged treatment. In the end, the rules in force of the two jurisdictions are compared and conclusions drawn.
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Wils, Wouter P. J. "Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement." World Competition 34, Issue 3 (September 1, 2011): 353–82. http://dx.doi.org/10.54648/woco2011033.
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This article discusses discretion and prioritisation in public antitrust enforcement, in particular in the enforcement of European Union (EU) antitrust law. First, this article defines the notion of discretion and discusses the rationale of discretion. Second, it examines the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) by the European Commission, showing that the Commission has a broad discretion concerning the question on which suspected or alleged infringements to pursue but no discretion as to the content of the antitrust prohibitions. With regard to fines, the Commission has a significant degree of discretion, although this discretion is potentially neutralized by the General Court's unlimited jurisdiction. Third, a brief comparison is made with and between the competition authorities of the EU Member States, highlighting divergence as to discretion to set priorities. The last section of this article sets out various reasons for allowing competition authorities discretion to set priorities as to which cases of suspected or alleged infringements of the antitrust prohibitions they investigate and pursue, as well as a number of risks related to prioritisation.
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Kirsch, Todd. "Ball Memorial Hospital: Section 2 Sherman Act Analysis in The Alternative Health Care Delivery Market." American Journal of Law & Medicine 14, no. 2-3 (1988): 249–79. http://dx.doi.org/10.1017/s0098858800006274.
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In 1986, the Seventh Circuit Court of Appeals in Ball Memorial Hospital v. Mutual Hospital Insurance denied an injunction sought under the antitrust laws by the plaintiffs, eighty acute care hospitals, which would have precluded Blue Cross and Blue Shield of Indiana from implementing a Preferred Provider Organization. The Ball court used a conservative economic analysis to deny the injunction and failed to consider many industry-specific factors. This Note examines these factors and challenges the Ball court’s position by arguing that antitrust scrutiny of alternative health care delivery markets must go beyond the court’s narrow approach.
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Chawla, Twinkle, and Ruchi Verma. "Pay for Delay Agreements: Antitrust Watch Intensifies." Journal of National Law University Delhi 5, no. 1 (July 2018): 22–39. http://dx.doi.org/10.1177/2277401718787952.
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The pharmaceutical sector has constantly endeavoured to balance its dual objectives of promoting state-of-art innovation and achieving affordable healthcare for all. The contrasting aims are also germane to the inevitable conflict between the competition law and the patent law with respect to this sector. Reverse payment settlement is one such concept that lies at the cross-section of these two legislations and strangely offers an uncanny mechanism where extreme partisans (i.e., innovator and generics) become comrades, thereby prodding genuine concerns and exposing legal vulnerabilities of such agreements. Against this backdrop, this article seeks to examine the growing undercurrent re reverse payment settlement agreements from a competition law perspective. In an attempt to harmonize the conflicting policy objectives, it will study the interplay between patent law and competition law by placing reliance on the approach followed by other jurisdictions. Further, this article will also assess whether reverse payment settlement agreements fall within the statutory construct of the Competition Act, 2002 and whether the Competition Commission of India (“CCI”) can assert its jurisdiction over such agreements. An attempt is also made to outline the approach which the CCI could adopt, bearing in mind the importance of ensuring exclusivity as an incentive for innovation.
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Weber Waller, Spencer. "Book Review: ABA Section of Antitrust Law, Competition as Public Policy (2010)." World Competition 33, Issue 3 (September 1, 2010): 541. http://dx.doi.org/10.54648/woco2010042.
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Balasingham, Baskaran. "Hybrid Restraints and Hybrid Tests Under US Antitrust and EU Competition Law." World Competition 43, Issue 2 (June 1, 2020): 261–82. http://dx.doi.org/10.54648/woco2020013.
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The distinction between horizontal and vertical agreements is not always as obvious as suggested in case law. In particular, under US antitrust law, the current case law on section 1 of the Sherman Act sets out a dichotomy between horizontal and vertical restraints. Yet, the commercial reality, as seen for instance in the e-commerce sector, is that the line between those two types of restraints is sometimes blurred. As more recent cases have shown, the legal assessment of vertical restraints that have horizontal effect is more difficult compared to purely vertical or horizontal restraints. Under US antitrust and EU competition law the assessment of those ‘hybrid restraints’ is further obfuscated due to the emergence of intermediate approaches to the rule of reason/per se rule in section 1 of the Sherman Act and arguably the restriction by object/restriction by effect categories in Article 101 Treaty on the Functioning of the European Union (TFEU) respectively. This article explores whether those intermediate approaches are suitable for the legal assessment of vertical restraints with horizontal effect and how the analyses could be conducted in order to be more administrable. vertical restraints, horizontal restraints, hybrid restraints, Most-Favoured Nation clauses, resale price maintenance, rule of reason, per se rule, restriction by object, restriction by effect, Article 101 TFEU
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Paul, John. "Book review: ABA Section of Antitrust Law, Antitrust Class Actions Handbook, (2d ed. Chicago,IL. ABA Publishing. 2018)." World Competition 42, Issue 1 (March 1, 2019): 139–40. http://dx.doi.org/10.54648/woco2019008.
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Majer, Anna. "ABSOLUTE INVALIDITY IN TERMS OF THE COMPETITION AND CONSUMER PROTECTION ACT." Roczniki Administracji i Prawa 3, no. XXIII (September 30, 2023): 321–37. http://dx.doi.org/10.5604/01.3001.0053.9547.
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While the sanction of invalidity in the classical view ‒ normalized by civil law and its application - does not raise any doubts, the way in which Article 6 section 2 of the Law on Competition and Consumer Protection is normalized has already provoked the doctrine to analyze this provision and its relation to the normalization contained in Article 58 of the Civil Code. Due to the specific shape of the regulation contained in the antitrust legislation, two competing currents have developed in the science of law, whose views, based on different arguments, evaluate the sanction of invalidity in Article 6 section 2 of the u.o.k.k. either as a solution analogous to that of the Civil Code, or as a provision of a special nature. This article attempts to summarize the currents worked out in the doctrine, while undertaking a dogmatic and comparative legal analysis. Undoubtedly, Article 6 section 2 of the u.o.k.k. is a kind of breakthrough in the way of understanding the sanction of absolute invalidity known from civil law.
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Greaney, Thomas L. "Night Landings on an Aircraft Carrier: Hospital Mergers and Antitrust Law." American Journal of Law & Medicine 23, no. 2-3 (1997): 191–220. http://dx.doi.org/10.1017/s0098858800010704.
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Justice Stewart’s 1966 dictum about the inevitability of government success in challenging mergers under Section 7 of the Clayton Act held true for another fifteen years or so. In the early 1980s, however, federal enforcement agencies, the Department of Justice (DOJ) and the Federal Trade Commission (FTC), began to find the federal courts less hospitable to antitrust merger cases as more sophisticated economic inquiries and changing proof burdens complicated the task of identifying anticompetitive mergers. Indeed, since the early 1980s, the government has lost more litigated merger cases than it has won and has come under criticism from some quarters for becoming gun shy and not adequately policing the wave of consolidations that have occurred over the past decade.Hospital mergers, however, are a different story. Until two years ago, the government rode a streak of important victories in federal courts and FTC administrative proceedings, and had obtained consent decrees from scores of hospitals that had announced plans to merge.
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Weber Waller, Spencer. "Book Review: ABA Section of Antitrust Law, Proof of Conspiracy Under Federal Laws (2010)." World Competition 34, Issue 1 (March 1, 2011): 177. http://dx.doi.org/10.54648/woco2011009.
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Lumer, Daniel. "Divestiture: Doctrinal Development and Modern Application." Antitrust Bulletin 67, no. 1 (February 4, 2022): 146–81. http://dx.doi.org/10.1177/0003603x211067122.
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In the last several years, policymakers have increasingly pursued legislative reforms that would expand antitrust enforcement while advocating more generally for the break-up of tech companies with leading digital platforms. At least a half-dozen antitrust reforms were introduced in Congress in 2021, while federal enforcers in the Department of Justice and Federal Trade Commission have taken an aggressive approach to enforcement under the Biden administration. These recent events have invited an assessment of the scope and limitations of divestiture, as policymakers and regulators consider the remedy’s viability under existing and prospective federal antitrust laws. To that end, this paper aims to provide a comprehensive account of the development of the doctrinal principles and application of divestiture, beginning with its origins as an equitable remedy and subsequent developments in response to legislative reforms. The paper then discusses divestiture’s primary use in the current regulatory landscape to redress violations under § 7 of the Clayton Act, followed by an examination of its historically limited application as a remedy to unilateral conduct. In its final substantive section, the paper then assesses the ongoing debate as to divestiture’s applicability to acquisitions of nascent competitors. Finally, the conclusion provides a summary of divestiture’s doctrinal principles and application, and the implications for how divestiture may be applied in the future.
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Ortiz, Aitor. "Clouds behind the Clouds." World Competition 36, Issue 1 (March 1, 2013): 61–83. http://dx.doi.org/10.54648/woco2013004.
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Cloud computing is revolutionizing the way that companies use IT services. The advantages of cloud computing for companies are numerous, from substantial cost reductions to global access to data. However, this new channel of communication brings a new antitrust risk, exchange of sensitive information among competitors in the cloud. The features of cloud computing (i.e., data location) together with some IT techniques (i.e., encryption of information) may facilitate the creation of sophisticated systems to share information illegally. These new systems may even prevent antitrust authorities from finding evidence of the illicit conduct. This article shows how companies engaged in cartel activities may remain undetected by competition authorities if they use sophisticated techniques. This article further discusses the tools available to competition authorities to detect and to prevent this behaviour, arguing that some authorities are a priori better prepared than others to combat these 'cloud cartels'. The final section of this article suggests new policies to deter the illegal use of cloud computing services.
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Rakic, Ivana. "Monopolization Standards in US Competition Law: Evolution and Evaluation." Anali Pravnog fakulteta u Beogradu, no. 4 (December 18, 2020): 98–110. http://dx.doi.org/10.51204/anali_pfub_20405a.
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The aim of this article is to provide a short overview and analysis of the US antitrust law. Section 2 of the Sherman Act stipulates that it is unlawful to monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations. The article presents case law that reflects the evolution of monopolization standards and provides some interpretations of undertakings’ behavior that can be defined as monopolization. US practice shows that monopolization standards have changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which may lead to reduced innovation and other behaviors of undertakings that increase economic efficiency and improve competition, which is a type I error.
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Langenfeld, James. "Book Review: ABA Section of Antitrust Law, Market Power Handbook: Law and Economic Foundations (2nd edn, 2012)." World Competition 35, Issue 4 (December 1, 2012): 711–13. http://dx.doi.org/10.54648/woco2012058.
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Weber Waller, Spencer. "Book Review: American Bar Association, Section of Antitrust Law, Monograph 26, Electronic Commerce: Antitrust and Consumer Protection in the Information Age (2011)." World Competition 35, Issue 2 (June 1, 2012): 386. http://dx.doi.org/10.54648/woco2012024.
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Richards, J. Douglas. "Book Review: American Bar Association, Section of Antitrust Law, Monopolization and Dominance Handbook (2011)." World Competition 35, Issue 4 (December 1, 2012): 709–11. http://dx.doi.org/10.54648/woco2012057.
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Brooker, Chad. "Book Review: ABA Section of Antitrust Law, The Noerr-Pennington Doctrine (Monograph 25) (2009)." World Competition 33, Issue 4 (December 1, 2010): 691. http://dx.doi.org/10.54648/woco2010059.
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Boscheck, Ralf. "Patent Trolls: In Search of Efficient Regulatory Standards." World Competition 39, Issue 1 (March 1, 2016): 67–84. http://dx.doi.org/10.54648/woco2016005.
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Current concerns about the growth of patent assertion entities (PAEs) are typically related to their presumed anti-competitive behaviour and negative impact on innovation in product and technology markets. Regulators, required to balance the legitimate interests of patent holders and licensees, call for evidentiary standards to efficiently appraise, and for the purpose of policy formulation, prejudge the reasonableness and welfare consequences of these undertakings. And yet, recent economic analyses still seem far from offering operational criteria that could translate into enforceable, let alone efficient, regulatory norms. And so, case analysis, particularly in the US context, turns into an ordeal trying to tweak the facts of these fairly new business models to suit time-honoured legal principles. Plainly, PAE efforts in general do not seem to be easily caught by US competition rules that assign antitrust liability based on harm to competition and the competitive process. This is not to suggest that they are pro-competitive per se but, rather, that any attack on them may give rise to ‘administratively hopeless, but generally exculpating, rule of reason defence’. It may be for that reason that US judicial, federal and state reforms – for better or for worse – have begun to target some of the leverage points and key drivers of the PAE business model.The welfare consequences of reduced IP enforcement will still need to be established. The EU Commission expects PAEs to be less active in Europe because of the loser pays principle in European courts, the smaller damage awards offered in successful cases, and because of the higher degree of predictability of outcomes in European specialist patent courts. Yet, similar to the US context, EU regulators are faced with the dilemma of devising standards that fit a variety of circumstances and yet can be easily applied. In both cases, regulatory delegation avoids the pitfalls of ordering complexities centrally. But it requires a set of simple meta-rules to guide lower-level decisions, adjust principles to circumstance and keep matters predictable. Delegation in the area of competition policy is limited by the adequacy of the economic reference that it employs. At this stage, in dealing with outsourced patent assertion and related licensing conditions, economic theory offers a wide yet insufficient menu of advice. The article has four parts: Section 1 discusses patent trends, actors, rights and obligations, and the nature of current regulatory concerns. Section 2 reviews the scant empirical analyses and model work on patent trolls. Section 3 examines regulatory concerns in view of US antitrust standards and lists alternative remedies. Section 4 concludes and offers some considerations related to the European context.
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Hafiz, Hiba. "Structural Labor Rights." Michigan Law Review, no. 119.4 (2021): 651. http://dx.doi.org/10.36644/mlr.119.4.structural.
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American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor-market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnation and a declining share of the national income for decades. To resolve this crisis, some scholars have advocated for ambitious labor law reforms, like sector-wide bargaining, while others have turned to antitrust law to tackle employer power. While these proposals are vital, they overlook an existing opportunity already contained in the labor law that would avoid the political and doctrinal obstacles to such large-scale reforms. This Article argues for a “structural” approach to the labor law that revives and modernizes its equal bargaining power purpose through deploying innovative social scientific analysis. A “structural” approach is one that takes into account workers’ bargaining power relative to employers in determining the scope of substantive labor rights and in resolving disputes. Because employers’ current buyer power strengthens their ability to indefinitely hold out on worker demands in the employment bargain, the “structural” approach seeks to deploy social scientific tools to tailor the labor law’s provisions so that they resituate workers to a bargaining position from which they could equally hold out. This Article makes three key contributions. First, it documents the dispersion and misalignment of workers’ collective rights under current labor law, detailing the historical narrowing of workers’ collective rights to limited tactics by a small set of workers against highly protected individual enterprises and the concomitant rise of employer power (Part I). Second, it introduces and schematizes the wealth of social scientific literature relevant for evaluating the relative bargaining power of employers and employees (Part II). And finally, it offers concrete proposals for how to apply these social scientific tools and insights to three areas of the National Labor Relation Board’s adjudication and regulatory authority: the determination of “employer”/”employee” status, the determination of employees’ substantive rights under section 7 of the National Labor Relations Act (NLRA), and the determination of what counts as sanctionable unfair labor practices under section 8 of the NLRA (Part III).
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Wils, Wouter P. J. "Optimal Antitrust Fines: Theory and Practice." World Competition 29, Issue 2 (June 1, 2006): 183–208. http://dx.doi.org/10.54648/woco2006014.
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This article discusses the use of fines imposed on companies or other corporate entities to enforce antitrust or competition law prohibitions such as Articles 81 and 82 of the EC Treaty or Sections 1 and 2 of the Sherman Act. The article addresses more specifically the questions in what ways these fines contribute to competition law enforcement, on the basis of which factors the amount of antitrust fines should be fixed in theory, and whether it is feasible in practice to calculate or measure such optimal fines. It is argued that the imposition of fines can contribute in three ways to the prevention of antitrust violations: through deterrent effects, through moral effects, and by raising the cost of setting up and running cartels. For violations committed by a single offender, a necessary condition for deterrence to work is that the expected fine, discounted for the probability of detection and punishment, exceeds the gain which the offender expected to obtain from the violation. Because of overconfidence bias, prospective offenders are likely to overestimate the gain and underestimate the probability of detection and punishment. Administrative costs could be saved by adopting an enforcement strategy of very high fines and low probability of punishment, but the possibility to impose high fines is limited by inability to pay, by the social and economic costs of high fines, and by requirements of proportional justice. Cooperation with the competition authority’s investigation should be rewarded through reduced fines. For collective violations, it is a sufficient but not a necessary condition for deterrence to work that the expected fine, discounted for the probability of detection and punishment, exceeds the expected gain, either for all the cartel members taken together or for each of them separately. The cost of setting up and running cartels can be raised by modulating the amount of the fine for each cartel member depending on the active role played in the functioning of the cartel, as well as through a leniency policy. To avoid a deterioration of the market structure as a result of the imposition of fines, where high fines are imposed and where there is a significant difference in the ability to pay of the various cartel members, the amount of the fines imposed on the different companies should be differentiated so as to reflect their respective ability to pay. In practice, it does not appear feasible to measure econometrically the theoretically optimal fine for a given antitrust violation. The theory on optimal fines remains however useful as general guidance for the practice of fixing the amount of antitrust fines.
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Noonan, Chris. "Partial Price-Fixing and Semi-Collusion." Antitrust Bulletin 66, no. 4 (September 30, 2021): 481–509. http://dx.doi.org/10.1177/0003603x211045434.
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Many cartels do not directly fix the price of products. Instead, the participants may agree on a starting price for negotiations or the price of a component of the overall price. Antitrust investigations reveal that cartel agreements are also often very imperfectly implemented. Antitrust law in the United States and the European Union has typically taken a robust approach to these practices even where economic analysis might be unable to show that such practices always or almost always harm consumer welfare. The decision of the New Zealand Supreme Court in Lodge Real Estate Ltd. v. Commerce Commission offers a New Zealand perspective on the concept of a price-fixing agreement and imperfect collusion. The Court, this article argues, reached the correct decision in Lodge. The decision, however, evidences a pragmatic judgment, rather than the confident deployment of economic learning or foreign case law within the statutory framework of the Commerce Act 1986. The language of sections 30 and 30A of the Act was borrowed from an Australian statute, which in turn had attempted to capture the state of United States price-fixing law in the 1970s. A more formalistic and pre-Chicago approach to antitrust is evident in the language, much of which was inspired by United States v. Socony-Vacuum Oil Co. The case also highlights some of the distinctive features of the competition law in New Zealand. The reluctance to develop to guide in the application of the general provisions of the Commerce Act and requiring a demonstration of an effect on price on the facts may mark a departure from the body of pricing case law in the United States and the European Union and risks undermining the per se prohibition of cartel conduct in the Commerce Act. Without the same depth and breadth of cartel case law, the adoption of a more flexible approach to anticompetitive agreements evident in some decisions in the United States and the European Union could have different effects in a smaller jurisdiction.
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Sanders, Elizabeth. "Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880–1980." Studies in American Political Development 1 (1986): 142–214. http://dx.doi.org/10.1017/s0898588x00000353.
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Antitrust law in the United States—framed in the Sherman, Clayton, and Federal Trade Commission (FTC) acts and their subsequent amendments—establishes a policy toward industrial concentration and business practices that sets the United States apart from other industrial democracies. In Europe and Japan, large-scale industry has been perceived as a national and international asset and, while particular abuses may be condemned at the government's discretion, emotional antibigness rhetoric and statutory prohibition of monopolistic practices are largely absent.
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Manzini, Pietro. "European Antitrust in Search of the Perfect Fine." World Competition 31, Issue 1 (March 1, 2008): 3–17. http://dx.doi.org/10.54648/woco2008002.
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This article sets out to verify if and to what extent the 2006 Guidelines allow the Commission to set fines that effectively deter firms from engaging in anticompetitive practices. The first two sections present a standard economic analysis of the optimal sanction. The results of this analysis are then compared with the fine setting methods of the 1998 Guidelines and, to a deeper extent, the 2006 Guidelines. Thereafter three main conclusions deriving from this analysis are discussed. First, the method adopted in the new Guidelines seems more economically oriented in comparison to the previous one but does not completely follow the optimal sanction approach. Moreover, the new Guidelines now use a gain based fine as opposed to a harm based one. Second, the 2006 Guidelines regard factors such as the offender’s personal behaviour and psychological attitude as relevant to determining the fine as well as objective factors such as the offender’s gain or harm to society. Third, the 2006 Guidelines are capable of setting a fine at the optimal level of deterrence, even though they apply a different method. This level, however, is not possible when a fine exceeds 10 per cent of a firm’s total turnover, which is the fine’s legal maximum as provided by Regulation 17 and reconfirmed by Regulation No. 1/2003.
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Wolski, Dominik. "The Type of Liability in Private Enforcement in Selected CEE Countries Relating to the Implementation of the Damages Directive." Yearbook of Antitrust and Regulatory Studies 10, no. 5 (2017): 69–84. http://dx.doi.org/10.7172/1689-9024.yars.2017.10.15.4.
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The article is devoted to the type of liability in selected CEE countries, namely those covered by the national reports drafted for the 2nd International Conference on Harmonization of Private Antitrust Enforcement: Central and Eastern European Perspective. The paper starts with preliminary remarks concerning the role of the type of liability in private enforcement of competition law and the Damages Directive. In the following sections of the article, the author discusses the manner of adopting the aforementioned element as a result of the implementation process in CEE Member States. The article is mainly based on the content of the relevant national reports, with a few references to issues beyond their scope. In the summary, the author formulates brief conclusions with respect to the implementation manner of the type of liability as well as provides general remarks concerning the role of the type of liability in competition-based private enforcement cases.
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Zingales, Nicolo, and Bruno Renzetti. "Digital Platform Ecosystems and Conglomerate Mergers: A Review of the Brazilian Experience." World Competition 45, Issue 4 (December 1, 2022): 473–510. http://dx.doi.org/10.54648/woco2022021.
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This article highlights some of the key challenges for the Brazilian merger control regime in dealing with mergers involving digital platform ecosystems (DPEs). After a quick introduction to DPEs, we illustrate how their market power may be strengthened through conglomerate mergers, and yet these concerns remain largely unaddressed in the current landscape for merger control in Brazil. The article is divided in four sections. First, we introduce the reader to the framework for merger control in Brazil. Second, we identify the possible theories of harm related to conglomerate merger, and elaborate on the way in which their application may be affected by the context of DPEs. Third, we conduct a review of previous mergers involving DPEs in Brazil, aiming to identify the theories of harm employed (and those that could have been explored) in each case. Fourth and finally, we summarize and results and suggest adaptation to merger control in Brazil, advancing proposals for a more consistent and predictable analysis. Digital Platforms, Digital Ecosystems, Merger Control, Conglomerate Mergers, Competition Law, Antitrust, Brazil
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Dyson, Maurice R. "Combatting AI’s Protectionism & Totalitarian-Coded Hypnosis: The Case for AI Reparations & Antitrust Remedies in the Ecology of Collective Self-Determination." SMU Law Review 75, no. 3 (2022): 625. http://dx.doi.org/10.25172/smulr.75.3.7.
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Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable and actual grave social harm. The hypothetical promises of AI’s beneficial use as an equality machine without the requisite action and commitment to address the inequality it already causes now is fantastic propaganda masquerading as merit for a Silicon Valley that has yet to diversify its own ranks or undo the harm it is already causing. Care must be taken that fanciful imagining yields to practical realities that, in many cases, AI no longer has foreseeable practical social utility when compared to the harm it poses to democracy, privacy, equality, personhood and global warming. Until we can accept as a nation that the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 are not up to the task for breaking up tech companies; until we can acknowledge DOJ and FTC regulators are constrained from using their power because of a framework of permissibility implicit in the “consumer welfare standard” of antitrust law; until a conservative judiciary inclined to defer to that paradigm ceases its enabling of big tech, then workers, students, and all natural persons will continue to be harmed by big tech’s anticompetitive and inhumane activity. Accordingly, AI should be vigorously subject to anti-trust monopolistic protections and corporate, contractual, and tort liability explored herein, such as strict liability or a new AI prima facie tort that can pierce the corporate and technological veil of algorithmic proprietary secrecy in the interest of justice. And when appropriate, AI implementation should be phased out for a later time when we have better command and control of how to eliminate its harmful impacts that will only exacerbate existing inequities. Fourth Amendment jurisprudence of a totalitarian tenor—greatly helped by Terry v. Ohio—has opened the door to expansive police power through AI’s air superiority and proliferation of surveillance in communities of color. This development is further exacerbated by AI companies’ protectionist actions. AI rests in a protectionist ecology including, inter alia, the notion of black boxes, deep neural network learning, Section 230 of the Communications Decency Act, and partnerships with law enforcement that provide cover under the auspices of police immunity. These developments should discourage a “safe harbor” protecting tech companies from liability unless and until there is a concomitant safe harbor for Blacks and people of color to be free of the impact of harmful algorithmic spell casting. As a society, we should endeavor to protect the sovereign soul’s choice to decide which actions it will implicitly endorse with its own biometric property. Because we do not morally consent to give the right to use our biometrics to accuse, harass, or harm another in a line up, arrest, or worse, these concerns should be seen as the lawful exercise of our right to remain a conscientious objector under the First Amendment. Our biometrics should not bear false witness against our neighbors in violation of our First Amendment right to the free exercise of religious belief, sincerely held convictions, and conscientious objections thereto. Accordingly, this Article suggests a number of policy recommendations for legislative interventions that have informed the work of the author as a Commissioner on the Massachusetts Commission on Facial Recognition Technology, which has now become the framework for the recently proposed federal legislation—The Facial Recognition Technology Act of 2022. It further explores what AI reparations might fairly look like, and the collective social movements of resistance that are needed to bring about its fruition. It imagines a collective ecology of self-determination to counteract the expansive scope of AI’s protectionism, surveillance, and discrimination. This movement of self-determination seeks: (1) Black, Brown, and race-justice-conscious progressives to have majority participatory governance over all harmful tech applied disproportionately to those of us already facing both social death and contingent violence in our society by resorting to means of legislation, judicial activism, entrepreneurial influential pressure, algorithmic enforced injunctions, and community organization; (2) a prevailing reparations mindset infused in coding, staffing, governance, and antitrust accountability within all industry sectors of AI product development and services; (3) the establishment of our own counter AI tech, as well as tech, law, and social enrichment educational academies, technological knowledge exchange programs, victim compensation funds, and the establishment of our own ISPs, CDNs, cloud services, domain registrars, and social media platforms provided on our own terms to facilitate positive social change in our communities; and (4) personal daily divestment from AI companies’ ubiquitous technologies, to the extent practicable to avoid their hypnotic and addictive effects and to deny further profits to dehumanizing AI tech practices. AI requires a more just imagination. In this way, we can continue to define ourselves for ourselves and submit to an inside-out, heart-centered mindfulness perspective that informs our coding work and advocacy. Recognizing we are engaged in a battle of the mind and soul of AI, the nation, and ourselves is all the more imperative since we know that algorithms are not just programmed—they program us and the world in which we live. The need for public education, the cornerstone institution for creating an informed civil society, is now greater than ever, but it too is insidiously infected by algorithms as the digital codification of the old Jim Crow laws, promoting the same racial profiling, segregative tracking, and stigma labeling many public school students like myself had to overcome. For those of us who stand successful in defiance of these predictive algorithms, we stand simultaneously as the living embodiment of the promise inherent in all of us and the endemic fallacies of erroneous predictive code. A need thus arises for a counter-disruptive narrative in which our victory as survivors over coded inequity disrupts the false psychological narrative of technological objectivity and promise for equality.
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Goeteyn, Geert. "EU Aviation Scene: Major Developments July 2008–November 2008." Air and Space Law 34, Issue 2 (April 1, 2009): 105–26. http://dx.doi.org/10.54648/aila2009011.
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This article gives an overview of the major developments on the European Union aviation scene between 1 July 2008 and 30 November 2008. In particular: – The consolidation drive continued unabated. In addition to the alliance arrangements between Continental Airlines, United Airlines, and a number of other Star Alliance carriers announced in June 2008, American Airlines, British Airways, and Iberia made public in August 2008 that they had also applied for an antitrust immunity of their proposed alliance. The European Commission opened ex officio investigations into both alliance arrangements. During the period under review, the European Commission also cleared the Delta Airlines/Northwest Airlines merger, started an investigation into Lufthansa’s proposed acquisition of a 45% stake in SN Holding, the parent company of Brussels Airlines, and decided to open an in–depth investigation into the KLM/Martinair merger. Other transactions that were mentioned in the press include Lufthansa’s acquisition of a majority ownership of bmi British Midland, and its intention to acquire control of Austrian Airlines, which is being privatized by the Austrian Government. British Airways is in merger negotiations with Iberia and it is rumored that Air France/KLM may still end up acquiring a (majority) stake in Alitalia. – There have been major developments in the State aid field during the period under review. The European Commission and the European Court of First Instance adopted important decisions with regard to Alitalia, and there have been further developments in the Olympic State aid matter.The European Commission also adopted State aid measures in a number of other aviation–related cases – There were a number of noteworthy regulatory developments during the period under review, most importantly the publication in the Official Journal of the new regulation on the internal market for air transport, which brings together in one single legal instrument the three 1992 regulations that hitherto formed the pillars of the internal aviation market and that controlled (1) the licensing of air carriers, (2) the access of European Union carriers to intra–European Union routes, and (3) the fares and rates for air services. There were also further developments regarding the proposal for a new CRS (computerized reservation system) Code of Conduct. In addition, a Directive extending the European Union Emission Trading Scheme to aviation was finally adopted, and the European Court of Justice adopted a ruling on the interpretation of the concept of ‘flight’ for the purposes of the application of Regulation 261/2004 on compensation and assistance in the event of denied boarding, cancellation, and long delay – Finally, with regard to the European Union external aviation policy, the European Commission published a report on its progress toward the creation of a Common Aviation Area (CAA) with the neighbouring countries by 2010. There were also further developments regarding the negotiation or conclusion of horizontal air services agreements with third countries. Each of these points will be examined in greater detail in the sections below.
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Goeteyn, Geert. "EU Aviation Scene: Major Developments December 2007 — June 2008." Air and Space Law 33, Issue 6 (November 1, 2008): 444–65. http://dx.doi.org/10.54648/aila2008037.
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This article gives an overview of the major developments on the EU aviation scene between 1 December 2007 and 30 June 2008. In particular: — There were important EU external aviation policy developments during the period under review. The main development was the coming into force of the EU/US Open Skies Agreement. In addition, the Commission has continued its drive to conclude a number of horizontal air services agreements. — Partly as a result of the EU/US Open Skies Agreement and partly due to other economic factors including, in particular, the worsening economic climate,rocketing fuel prices and overcapacity (especially in the US), a number of consolidation transactions were announced (mergers or integrated alliances) during the period under review. They include the Delta/Northwest merger and the alliance arrangements between Continental, United Airlines and a number of other Star Alliance carriers. American Airlines and British Airways were also rumoured to be preparing another application for antitrust immunity (the two earlier applications failed). — There were also a number of other important competition law developments.The Commission continued its vigorous pursuit of infringement proceedings against carriers that have allegedly participated in illegal cartel behaviour. The battle between Aer Lingus and Ryanair also continued to rage, with Aer Lingus failing to obtain interim measures from the Court of First Instance stopping Ryanair from exercising voting rights linked to its minority shareholding in Aer Lingus. — There was a lot of activity in the State aid field during the period under review.There were certain noteworthy developments in the various ongoing Olympic investigations, while the loan granted by the Italian government to Alitalia also came under scrutiny. The Commission launched a number of investigations into start–up aid granted to Ryanair at a number of regional airports, which the Commission considers may be incompatible with the EU State aid rules. Finally,Ryanair also continued its fight trying to protect its business model, with developments in Ryanair’s appeal against the Commission’s Charleroi decision and the launch of proceedings against the Commission for alleged failure to act with regard to two complaints Ryanair submitted against alleged illegal airport aid granted to Lufthansa and Air France. — Finally, there were a number of important regulatory developments during the period under review, including (a) the European Parliament’s first reading of the Commission’s proposal for a new CRS Code of Conduct; (b) the adoption by the Commission of a Communication providing its views on a number of issues resulting from the review process of the present Slot Code of Conduct; (c) the adoption by the Council of Ministers for the Environment of a common position with regard to the Commission’s proposal to include aircraft emissions in the EU Emissions Trading Scheme; and (d) the publication by Consumer Commissioner Kuneva on the interim results of a crackdown on misleading aviation websites. Each of these points will be examined in greater detail in the sections below.
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Körber, Torsten. "Antitrust Law." Zeitschrift für Wettbewerbsrecht 1, no. 3 (August 1, 2003): 373–80. http://dx.doi.org/10.15375/zwer-2003-0308.
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Podszun, Rupprecht. "Politics of Antitrust Law." IIC - International Review of Intellectual Property and Competition Law 47, no. 4 (May 31, 2016): 383–85. http://dx.doi.org/10.1007/s40319-016-0480-y.
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Brodley, Joseph F. "Antitrust Law and Innovation Cooperation." Journal of Economic Perspectives 4, no. 3 (August 1, 1990): 97–112. http://dx.doi.org/10.1257/jep.4.3.97.
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Should innovation collaboration among high technology firms be subject to the antitrust laws? My own analysis concludes that innovation collaboration, particularly when it encompasses production and marketing, can create anticompetitive risks, and should be subject to the antitrust laws. It appears unlikely that actual antitrust enforcement inhibits technological collaboration in any direct way because government enforcement is extremely permissive and no successful private cases have been brought in recent years. To the extent that misguided perceptions of antitrust risk may have discouraged some types of innovation collaboration, a few narrowly targeted reforms are sufficient to correct the problem.
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Lamaj, Jonida. "The Evolution ofAntitrust Law in USA." European Scientific Journal, ESJ 13, no. 4 (February 28, 2017): 154. http://dx.doi.org/10.19044/esj.2017.v13n4p154.
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This Article analyzes the evolution of Antitrust Law (known as Competition Law in Europe) in United States of America. It is important to study the history of Antitrust Law in USA, because the roots and the origin of this important law and regulation that guarantee the economic rights and freedoms of persons and companies has started in USA, inherited from the Common Law system. This Article is composed by 4 main components, such as: Introduction of Antitrust Law, History of Sherman Act, History of Clayton Act and The enforcement of Competition Law in USA. A greater attention is given to the Sherman Antitrust Act. To better understand the Sherman Act, it is described the history path of the legalization of the act, reason why this act was implemented in USA, which were some challenges of the system at that time, how it is enforced, etc.? The same analogy is done with the Clayton Act and other amendments of Antitrust Acts. At the end of the paper it is introduced the main tools that helps to function the Antitrust law in USA, by analyzing the role of Department of Justice Antitrust Division, the Federal Trade Commission and Exemptions and Immunities.
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Wils, Wouter P. J. "Is Criminalization of EU Competition Law the Answer?" World Competition 28, Issue 2 (June 1, 2005): 117–59. http://dx.doi.org/10.54648/woco2005010.
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This article, based on a paper with the same title presented at the Amsterdam Center for Law and Economics (ACLE) Conference on ``Remedies and Sanctions in Competition Policy: Economic and Legal Implications of the Tendency to Criminalize Antitrust Enforcement in the EU Member States’’ (Amsterdam, 17-18 February 2005) addresses five questions concerning criminalization of EU antitrust enforcement: First, what do we mean by "criminalization’’, or "criminal’’ enforcement (as opposed to public enforcement of a "civil’’ or "administrative’’ nature)? Second, is there a tendency in the EU Member States to criminalize antitrust enforcement (in comparison with US antitrust enforcement and with antitrust enforcement at the level of the EU institutions)? Third, is criminal antitrust enforcement, more specifically imprisonment, desirable (in general, irrespective of whether it takes place at the level of the Member States or of the EU institutions, or whether it is harmonized at EU level)? Fourth, is it problematic that antitrust enforcement is criminalized at the level of individual EU Member States without parallel criminalization at the level of the EU institutions or without EU harmonization? Fifth, would it be legally possible to criminalize antitrust enforcement at the level of the EU institutions, or to have EU harmonization of criminal antitrust enforcement in the Member States?
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McGinnis, Anne. "Ridding the Law of Outdated Statutory Exemptions to Antitrust Law: A Proposal for Reform." University of Michigan Journal of Law Reform, no. 47.2 (2014): 529. http://dx.doi.org/10.36646/mjlr.47.2.ridding.
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Antitrust law is designed to be an overarching check against anticompetitive conduct that harms the free market system. Almost as soon as the first antitrust laws were enacted in the United States, however, industry groups began lobbying Congress for exemptions from these laws. Most of the statutory exemptions created over the last one hundred years remain in place, despite widespread changes in economic theory, market structures, and overall antitrust law. Today, some exemptions are merely irrelevant, while others actively harm society by transferring wealth to private individuals and hampering beneficial competition. This Note proposes a fourpart legislative solution to rid the law of stale or harmful exemptions while preserving those that respect the bedrock principles of antitrust law.
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Yu, Minggui, Yujing Huang, Huijie Zhong, and Qing Zhang. "Monopoly and corporate innovation: evidence from antitrust law." Nankai Business Review International 13, no. 1 (October 14, 2021): 58–78. http://dx.doi.org/10.1108/nbri-03-2021-0019.
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Purpose There are two opposite views about whether the Antitrust Law is conducive to the development of the economy. One view is that the Antitrust Law can restrain monopoly, maintain market competition and benefit economic growth. The other view is that the Antitrust Law inhibits innovation by monopolistic firms and fosters rent-seeking, which is bad for economic growth. To provide a possible perspective for clarifying the controversy, this paper aims to answer the following two questions: first, will the Antitrust Law inhibit corporate innovation? Second, does the antitrust enforcement agency discriminate against private enterprises? Design/methodology/approach Based on the samples of A-share listed companies from 2003 to 2013, the authors use the implementation of China’s Antitrust Law in 2008 as a policy shock, take the monopoly enterprises in each industry as the treatment group and competitive enterprises as the control group, using the difference-in-differences method to test the impact of the implementation of the Antitrust Law on corporate innovation activities. Findings The results show that compared with competitive enterprises, the patent output of monopolistic enterprises was significantly reduced after the implementation of the Antitrust Law, which indicates that the Antitrust Law does inhibit the innovation activities of monopolistic enterprises. Further research finds that the innovation suppression effect of the Antitrust Law is more prominent in state-owned enterprises, which means that the government does not have “selective law enforcement” against private enterprises in the process of law enforcement. Therefore, the results provide evidence for the idea that government intervention is neutral. Originality/value First, the paper enriches and expands the research on the factors affecting corporate innovation from the perspective of market structure. Second, it enriches and expands relevant research on the consequences of implementing the Antitrust Law from the perspective of corporate innovation. Third, it not only provides the relevant empirical evidence for clarifying the dispute about the Antitrust Law but also is helpful to clarify whether the Chinese Government has “selective law enforcement” against private enterprises.
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Carlton, Dennis W., and Ken Heyer. "The Revolution in Antitrust: An Assessment." Antitrust Bulletin 65, no. 4 (August 20, 2020): 608–27. http://dx.doi.org/10.1177/0003603x20950626.
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In this essay, we evaluate the impact of the revolution that has occurred in antitrust and in particular the growing role played by economic analysis. Section II describes exactly what we think that revolution was. There were actually two revolutions. The first was the use by economists and other academics of existing economic insights together with the development of new economic insights to improve the understanding of the consequences of certain forms of market structure and firm behaviors. It also included the application of advanced empirical techniques to large data sets. The second was a revolution in legal jurisprudence, as both the federal competition agencies and the courts increasingly accepted and relied on the insights and evidence emanating from this economic research. Section III explains the impact of the revolution on economists, consulting firms, and research in the field of industrial organization. One question it addresses is why, if economics is being so widely employed and is so useful, one finds skilled economists so often in disagreement. Section IV asks whether the revolution has been successful or whether, as some critics claim, it has gone too far. Our view is that it has generally been beneficial though, as with most any policy, it can be improved. Section V discusses some of the hot issues in antitrust today and, in particular, what some of its critics say about the state of the revolution. The final section concludes with the hope that those wishing to turn back the clock to the antitrust and regulatory policies of fifty years ago more closely study that experience, otherwise they risk having its demonstrated deficiencies be repeated by throwing out the revolution’s baby with the bathwater.
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Weller, Charles D. "Criminal Antitrust." Antitrust Bulletin 61, no. 4 (November 17, 2016): 599–610. http://dx.doi.org/10.1177/0003603x16677783.
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In the crucible of defending a criminal antitrust case working with outstanding criminal defense lawyers soon after the Supreme Court revolutionized sentencing law by holding the Constitution requires the jury, not the judge, to decide key sentencing fact issues in Booker and related cases led to areas of criminal constitutional law outside the usual purview of antitrust. This unusual mix of law and people combined to create the discovery of five new constitutional defenses contrary to long-accepted practice in criminal antitrust that can be asserted to the Antitrust Division early in an antitrust criminal investigation, in motions to dismiss an indictment, before or at a charging conference and otherwise: (1) The standard antitrust practice of the judge, not the jury, deciding the “naked agreement” element of a per se crime is unconstitutional. (2) The standard per se antitrust jury instruction that conclusively presumes the statutory restraint of trade element of the crime is unconstitutional. (3) The standard antitrust practice where the antitrust division, not the grand jury, decides the “naked agreement” element is unconstitutional. (4) “Naked agreement” facts are “essential facts” that must be included in the indictment or the indictment is defective and unconstitutional. (5) All per se crimes are common law court created crimes, and thus unconstitutional because only Congress can create crimes.