Antitrust & Competition Policy Blog

Bargaining Over Remedies in Merger Regulation

Posted by D. Daniel Sokol

Merger remedies are a critical issue in any given jurisdiction, yet one that is underplayed in the academic literature.  Adding to the literature on EU merger remedies is a working paper by Bruce Lyons and Andrei Medvedev of the Competition Centre of the University of East Anglia entitled Bargaining Over Remedies in Merger Regulation.

ABSTRACT: This paper provides a first attempt to understand how outcomes are determined by the standard institutions of merger control. In particular, we focus on the internationally standard 2-phase investigation structure and remedy negotiations of the form practiced by the EC. We find that there are inherent biases in remedy outcomes, and identifiable circumstances where offers will be excessive and where they will be deficient. In particular, we find clear circumstances in which firms offer excessive remedies, which goes against a possible intuition that firms should expect to extract an information rent for possessing superior information about competition in the market.

The intersection of competition law and IP in Europe

Posted by D. Daniel Sokol

Ioannis Lianos, Associate Executive Director of the Jevons Institute of Competition Law and Economics at the Faculty of Laws of the University College London recently wrote on the interaction between competition law and IP in Europe (defending a regulatory theory of IP). The article is based on a lecture he gave last year at the Centre for European Legal Studies, University of Cambridge and has been published at the 8 Cambridge Yearbook of European Legal Studies (2006) 153.

Download Competition_law_and_intellectual_property_rights_article.pdf

The Jevons Institute of Competition Law and Economics's forthcoming conference on May 10, 2007 is on the topic of competition law and its interface with IP.

TOP 10 Most Downloaded Papers for Antitrust Law & Policy

Posted by D. Daniel Sokol

TOP 10 Papers for Antitrust Law & Policy
February 3, 2007 to April 4, 2007

1. The European Commission's 2006 Guidelines on Antitrust Fines: A Legal and Economic Analysis
Wouter P.J. Wils,
European Commission - Directorate General for Legal Service,

2. Antitrust
Louis Kaplow, Carl Shapiro,
Harvard Law School, University of California, Berkeley - Economic Analysis & Policy Group,

3. Drug Patent Settlements Between Rivals: A Survey
C. Scott Hemphill,
Columbia University - Columbia Law School,

4. Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age
D. Daniel Sokol,
University of Wisconsin Law School,

5. Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation
Jonathan B. Baker,
American University - Washington College of Law,

6. Priceless? The Competitive Costs of Credit Card Merchant Restraints
Adam Levitin,
Georgetown University - Law Center,

7. Arbitration of Antitrust Claims in the United States and Europe
Niccolò Landi, Catherine A. Rogers,
Santa Maria Law Firm, University of Bocconi - Institute of Comparative Law,

8. Antitrust Process and Vertical Deference: Judicial Review of State Regulatory Inaction
Jim Rossi,
Florida State University College of Law,

9. Discovering Cartels: Uncovering Dynamic Interrelationships Between Criminal and Civil Antitrust Investigations
Vivek Ghosal,
Georgia Institute of Technology - School of Economics,

10. Priceless? The Social Costs of Credit Card Merchant Restraints
Adam Levitin,
Georgetown University - Law Center.

The Law and Economics of Innovation

Posted by D. Daniel Sokol

THE REGULATION OF INNOVATION AND ECONOMIC GROWTH

Friday, May 4, 2007
9 a.m.-4:00 p.m.

George Mason University School of Law
Arlington, Virginia

http://innovationforum.gmu.edu

The George Mason University School of Law and Microsoft Corporation announce the first in an annual series of conferences on The Law and Economics of Innovation. The series will bring together leading academics to present and discuss new scholarship touching on diverse aspects of a key question affecting the technology industry and the process of innovation. Each conference will conclude with a roundtable discussion among top technology industry representatives and regulators to begin to assess the concrete implications of the scholarship for the development of innovative industries.

The inaugural conference in the series, to be held on Friday, May 4th at George Mason University School of Law, will address the complex problem of regulation and how regulation fosters or impedes economic growth through innovation: How should a jurisdiction, particularly an emerging or developing economy, approach its IP or its antitrust regime if it seeks to maximize economic growth to optimize the role of innovation in growth?

REGISTRATION:

Registration is free of charge but space is limited. To register, click here.

CONFERENCE PROGRAM:

8:30am   Registration & Welcome Coffee
9:00am   Welcome Remarks
9:15am   Keynote Address:  Robert D. Cooter, University of California at Berkeley School of Law

9:45am   Panel 1:  Some Economics of Innovation
              - Marco Iansiti, Harvard Business School
              - Stan J. Liebowitz, University of Texas/Dallas School of Management
              - Stephen E. Margolis, North Carolina State College of  Management
              - Moderated by Bruce H. Kobayashi, George Mason School of Law

11:00am  Panel 2:  Regulatory Reform
              - Howard A. Shelanski, University of California at Berkeley School of Law
              - Douglas G. Lichtman, University of Chicago Law School
              - Moderated by Randal Picker, University of Chicago Law School

12:00pm  Lunch in the Atrium

1:00pm   Panel 3:  Antitrust, Innovation and Economic Growth
              - Daniel F. Spulber, Kellogg School of Management
              - Keith N. Hylton, Boston University School of Law
              - Joshua D. Wright, George Mason School of Law
              - Moderated by Jonathan B. Baker, American University Washington College of Law

2:45pm   Industry/Regulator Roundtable Discussion
              - Gerald F. Masoudi, Deputy Assistant Attorney General, Department of Justice, Antitrust
                Division
              - David A. Heiner, Vice President and Deputy General Counsel, Antitrust Group, Microsoft
                Corporation
              - Others TBD
              - Moderated by Ronald A. Cass, Dean Emeritus, Boston University School of Law

4:00pm   Closing Reception

Is Antitrust Moral?

Posted by D. Daniel Sokol

What role, if any, should morality play in antitrust?  This is an underexplored question that is the theme of a new working paper by the Maurice Stucke of the DOJ Antitrust Division entitled Morality and Antitrust.

Abstract: Although the Sherman Act was enacted over a century ago, antitrust enforcers, policy makers, and scholars have largely circumvented the morality of antitrust crimes. Its absence is remarkable given the vigorous debate over the appropriate civil and criminal penalties for antitrust violations. Under the continued influence of the Chicago-school's neoclassical economic theories, antitrust analysis is primarily concerned with economic efficiency. Since terms like morality and evil are judgmental, not descriptive, they are deemed outside the discourse of economic theory's self-described positivism. But antitrust analysis is not beyond the judgmental. Over the past thirty years, while antitrust's civil remedies have remained relatively unchanged, the criminal penalties for price fixing, bid rigging, and other Sherman Act antitrust violations have soared - from a misdemeanor to a felony punishable by up to ten years imprisonment. If the criminal laws reflect society's moral judgments, then antitrust and morality ultimately are intertwined. This article provides a background of antitrust violations and the flawed economic theory of optimal deterrence that has played a critical role in shaping the criminal sanctions for Sherman Act violations. Despite the escalation in antitrust's criminal penalties, there is no clear evidence that optimal deterrence has been achieved. The article next introduces morality and asks what role morality could play in the field of antitrust, if optimal deterrence alone is insufficient to effectively deter violations. After examining under a three-part standard whether antitrust crimes can indeed be deemed immoral, the article weighs some of the benefits and risks of supplementing antitrust crimes with a moral component and the risks of the current course - namely, ignoring morality. 

AMC Report is Out

Posted by D. Daniel Sokol

The Antitrust Modernization Commission Report is out.  You can link to the 540 page report here.  Because of its length, I have not begun to analyze it.  The much shorter press release is available here.

Wanted: Professors to Teach Graduate Level Competition Policy and Regulatory Economics

Posted by D. Daniel Sokol

Shyam Khemani of the World Bank forwarded me an interesting opportunity.

The Government of Ethiopia has received financing from the World Bank toward the cost of the Private Sector Development Capacity Building Project (PSD CBP), which is designed to facilitate increased growth and competitiveness of the Ethiopian private sector, and intends to apply part of the proceeds for consultants' services.

One of the sub-components of the PSD CBP, called SCHOOLCAP, is aimed at developing the human and institutional capacity of the private sector by offering post graduate level training in two programs, namely “Competition Policy and Regulatory Economics” and “Applied Trade Policy Analysis” in the Department of Economics, Faculty of Business and Economics (FBE) at the Addis Ababa University (AAU), which is the oldest and strongest Department in Ethiopia to offer graduate degrees in different fields of economics.

Through SCHOOLCAP project, inter alia, courses of above-mentioned two postgraduate programs will be offered to MA students of the Department of Economics during the second semester of the current academic year (2006/2007. In this regard, the instructor is expected to:

1. Prepare course outline and prepare teaching instruments;

2. Offer classes starting the first day of the program to be agreed upon by the two programs;

3. Ensure continuous assessments of the students such as providing assignments regularly;

4. Conduct exam according to agreed upon exam schedule;

5. Mark and grade student exams based upon the scale given by the Department and submit the result to the Department of Economics;

6. Provide written comment on the curriculum and suggest improvement to the Department of Economics.

In connection with these postgraduate training programs, the Department of Economics at FBE, in Addis Ababa University is looking for one teaching staff for each of the following two modular courses:

1.  “Econ 616: International Competition Policy Issues” (3 credit hours)

Planned to be managed in 30 calendar days, covering topics such as selected competition policy rules; bilateral and multi-lateral trade arrangements and competition; multinationals and foreign direct investment; intellectual property rights and transfer of technology; and anti-competitive practices and dumping

2.  “Econ 622: Competition Law and Management Practices” (3 credit hours)

Planned to be managed in 30 calendar days, covering principles and provisions embodied in the competition law: anti-trust laws; licensing and registration of business enterprises, competition laws of in other major jurisdictions (e.g. U.S.A., EU); enforcement mechanisms; issues in competition laws in Ethiopia 

Teaching Modality and Teaching Schedule

• The courses will be delivered in blocked modules instead of semesters.

• The courses will have to be managed in the months of April, May, June, and July (can extend up to August, if need be) of 2007. Thus interested faculties are requested to express their preferred month for offering the course (s0 for which they are applying.

Professional Competence requirement

• At least an Assistant Professor, with PhD degree from a renown university, who has done course works or have published research works in the course for which she/he is applying;

• At least two years of teaching experience in renowned university at post-graduate level in the relevant subject areas;

• A staff who is ready to submit academic credentials for assessment by the Department of Economics of Addis Ababa University.

• A staff who is ready to submit a list of publications with full information of the publication.

Deadline: Expressions of interest should be received by 11 April 2007.

The Consultant will be selected in accordance with the procedures set out in the World Bank’s Guidelines: Selection and Employment of Consultants by World Bank Borrowers (current edition).

Interested consultants may obtain further information at the address below during office hours [i.e. 0830 to 1730 hours].

Expressions of interest, which include curricula vitae and details of work done in related field, with complete required information, must be delivered to the address below:

The Head of the Department of Economics, Faculty of Business and Economics (FBE), Addis Ababa University, Gulelle Kifle Ketema. (Sub-City), Kebele 17, House No FBE, P.O. Box 5563, Addis Ababa, Ethiopia, Tel. (251-11) 1223774, (251-11) 1223776, Mobile: 251-911-249071, Fax: 251-11-1223782, E-mail: ch_econ@ econ.aau.edu.et and htsega2005@yahoo.com. 

Update of April 5

Candidates do not require a PhD. Candidates will be considered with a MA/MSc, so long as they have relevant experience in the field.

Passover and Antitrust

Posted by D. Daniel Sokol

Last night began the Jewish holiday of Passover, where Jews around the world get together for a festive meal to recall their deliverance by God from slavery in Egypt. At one point in the Passover seder (seder is an Aramaic word for the Hebrew Erekh, which means “order” of the service), there is a discussion about Rabbi Eliezer, Rabbi Joshua, Rabbi Eleazar ben Azariah, Rabbi Akiba and Rabbi Tarfon staying up all night to discuss the departure from Egypt.  Our seder did not go nearly that long.

Where am I going with this story of religion and how does it fit in with antitrust? The discussion of the Rabbis reminded me of one of my favorite articles involving competition issues by academic superstars Dennis Carlton and Avi Weiss entitled The Economics of Religion, Jewish Survival, and Jewish Attitudes Toward Competition in Torah Education. Those of you up on antitrust policy will know that Dennis and Avi are not merely impressive academics. Rather, Dennis is the current Deputy Assistant Attorney General for Economic Analysis at DOJ Antitrust and Avi is the former Chief Economist and Deputy General Director of the Israel Antitrust Authority.

ABTRACT: This paper examines the attitude of Jewish law to competition in light of the economist's understanding of the benefits of competition and the beneficiaries from intervention in the competitive process. The punchline of this paper is simple. Although Judaism has used a whole host of restrictions on competition and has had its share of legislation to promote private interests, there has been one area that has generally been a consistent exception to impediments to competition--the teaching of Torah. This exception is all the more remarkable because those who were in a position to influence the legislation often stood to benefit from such restrictions. From this stress on teaching, we show that the foundation was laid for the survival and perpetuation of Judaism.

Topco Revisited

Posted by D. Daniel Sokol

Peter Carstensen of the University of Wisconsin Law School and Harry First of NYU Law School revisit the Topco decision in their book chapter in ANTITRUST STORIES, entitled Rambling Through Economic Theory: Topco's Closer Look.  It is one the must read articles of the year and a good piece of historical antitrust scholarship.

Abstract: This paper, which will be published as a chapter in Foundation Press's forthcoming volume of antitrust stories, reviews United States v. Topco Associates, the Supreme Court's 1972 decision holding that horizontal territorial divisions are per se unlawful under Section 1 of the Sherman Act. Most commentators believe the decision was ill-considered - one of the most telling exemplars of Populist era jurisprudence, wrote one commentator; one of the most infamous antitrust cases ever, a case founded on judicial expediency, not economics and one now appropriately viewed as outside the antitrust mainstream, wrote another. We disagree.

Drawing on the transcript of the oral argument, Justice Department documents, the trial record, participant recollections, and the economic background of the supermarket industry, we show how Donald Turner successfully framed the case to solidify the per se rule. We also show that the case was correctly viewed as an attack on a cartel effort by medium-sized supermarket chains to exclude each other from their respective core geographic markets. We also argue that the Court was actually not indifferent to the factual issues the case presented and that at least some members were likely skeptical of Topco's purported justifications. The Court's decision was thus not made on a completely doctrinal basis. Indeed, its below-the-surface consideration of the facts was at least a closer look, even if not the deliberate one today's Supreme Court would require.

Clear rules have their rewards. Donald Turner was right to bring Topco and the Court was right to favor free entry over territorial treaties among competitors. There are complicated areas in antitrust, but the Topco agreement, on closer look, turns out not to be one of them.