Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

A Member of the Law Professor Blogs Network

Saturday, December 8, 2007

Does Legal Tradition Affect Competition Policy Performance?

Posted by D. Daniel Sokol

Armando35 Lots of work has impacted the larger field of law and development in the past 10 years, none more so than the LLSV articles.  From the econ perspective, the LLSV literature has renewed focus on legal origins and how they may influence law and development.  Cross country antitrust law and development work has been sparse (though I have one paper in this field which is a forthcoming book chapter and another paper in working paper form).  One new and exciting paper that brings the debate forward is by one of the economists most active in this area- Armando Rodriguez of the University of New Haven Department of Economics in his article Does Legal Tradition Affect Competition Policy Performance?

ABSTRACT: During the early 1990’s, in the early days of the worldwide competition policy boom, Spencer Waller and Joshua Newberg argued that difficulties inherent in grafting common law concepts--- such as antitrust---onto non common law traditions would undermine the administration of competition law in non common law tradition countries. Recent independent survey data on the performance of competition programs in 102 nations shows deplorable differences in performance, lending some weight to the Waller- Newberg thesis. This article tests whether differences in legal tradition contributes to the observed variance in competition agency performance. A careful understanding of the influence of legal tradition and other factors underscoring the relevance, shortcomings and problems of competition policy performance are useful for determining whether competition programs should be at all reproduced elsewhere, whether they should be modified prior to adoption or whether they should be adopted verbatim. Familiarity with performance factors is also useful both for program administration and program sequencing. Comparative examinations of competition programs enable decision-makers to properly allocate resources and to address policy issues. The estimated model is a two-stage least-squares cross-section analysis between competition policy performance and various control variables, including the presence of a common law tradition. Limitations on the availability of control and instrumental variables, reduces the data set from 102 to 82 nations. Succinctly, after accounting for other explanatory variables such as gross domestic product per capita, foreign direct investment, imports, physical size, the level of corruption, and national experience with a modern antitrust law, one can attribute statistical significance to historical legal tradition as established by the Waller-Newberg hypothesis.

Download UITJ_Rodriguez.pdf

December 8, 2007 | Permalink | Comments (0) | TrackBack (0)

The Classic Cartel - Hatchback Sentence

Posted by D. Daniel Sokol

Mary Elizabeth Curtis and John McNally of the University College Cork Faculty of Law discuss The Classic Cartel - Hatchback Sentence in the latest issue of Competition Law Review.

ABSTRACT: Ireland's national competition legislation, recently strengthened by the Competition Act 2002, provides that breaches of competition law constitute criminal offences and, in the case of cartels, managers and directors of offending firms may be imprisoned or fined if convicted for such behaviour. Ireland is the first Member State in Europe where the courts have interpreted the criminal sanctions provided for in competition legislation. However, the reluctance to imprison white - collar criminals appears to remain in the Irish courts. This article looks at the implementation of criminal sanctions in the Connaught Oil and Manning Cases. The authors question whether the sentence handed down in Manning was unduly lenient in proportion to the more stringent penalties provided for under competition legislation. Finally, we consider whether these cases will set a precedent for such leniency in future cases.

December 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, December 7, 2007

The Australian Cartel Criminalisation Proposals: An Overview and Critique

Posted by D. Daniel Sokol

Driving to the office today I heard Men At Work's classic "Down Under."  It has perhaps the best use of the term "Vegemite sandwich" in any song.  This reminded me that I needed to post on the new paper The Australian Cartel Criminalisation Proposals: An Overview and Critique by Brent Fisse of the University of Sydney Faculty of Law.

ABSTRACT: The Australian Treasurer issued a press release on 2 February 2005 outlining proposals for the criminalisation of serious cartel conduct. The proposals depart from the Enterprise Act model in many ways but have some common features including reliance on the concept of dishonesty as an element of the cartel offence. This article is an overview and critique of what the proposals say, or do not say, about: (1) dishonesty as a problematic element of a cartel offence; (2) the requirement of 'an intention to obtain a gain'; (3) the mental element of the cartel offence; (4) the element of agreement for the cartel offence; (5) the $1 million value of affected commerce threshold for prosecution; (6) the principle of corporate criminal responsibility that is to apply to the cartel offence; (7) the defences and exemptions that will apply to the cartel offence; (8) sentencing options and maximum penalties, and the application of proceeds of crime legislation and money-laundering offences; and (9) numerous other questions, including the challenge of defining the cartel offence in terms that can readily be communicated to a jury, the need for a 'one-stop' process for handling applications for immunity from both criminal prosecution and enforcement action for civil penalties, and whether powers of telecommunications interception should be available. Most of these issues are not straight-forward and should have been referred to the Australian Law Reform Commission for full examination and due public consultation. Exposure draft legislation has yet to be provided. Legislation may be introduced in 2008 after the forthcoming Federal election.

December 7, 2007 | Permalink | Comments (0) | TrackBack (0)

Enhancing Competition Through the Cy Pres Remedy: Suggested Best Practices

Posted by D. Daniel Sokol

Bert Foer, President of the American Antitrust Institute, has a new working paper out on Enhancing Competition Through the Cy Pres Remedy: Suggested Best Practices.

ABSTRACT: This paper reviews the law that relates to the cy pres doctrine which provides the ability of courts to approve settlements in antitrust class actions, whereby the defendants’ funds are distributed to organizations having a nexus to the case, rather than to successful claimants within the class. The paper advocates use of the cy pres remedy as a method of enhancing competition. Wary of potential criticisms of cy pres, the paper suggests a series of best practices for regularizing a process that may be characterized as largely ad hoc.

December 7, 2007 | Permalink | Comments (0) | TrackBack (0)

CUTS Institute for Regulation & Competition (CIRC) Seeks Director and Faculty

Posted by D. Daniel Sokol

CUTS Institute for Regulation & Competition (CIRC) is seeking to recruit the following at Delhi/NCR, India:

Director

The candidate, preferably below 50 years of age, should hold a good Masters degree in relevant fields. PhD with experience in competition policy & law, economic regulation and capacity building initiatives would be an advantage. Besides, experience in the area of training and education is essential. The vacancy is at a senior management level and calls for, besides honesty and integrity, proven ability to handle related functions independently.

Faculty

Professionals are required as Faculty in the fields of Competition Policy & Law, Economic Regulation, and Commercial Diplomacy. The candidate, preferably below 40 years of age, should hold a good Masters degree in relevant fields. PhD with experience as faculty in commercial diplomacy, competition policy & law and economic regulation would be an added advantage.

For more information about the Institute and detailed job profile please visit www.circ.in. Women candidates are encouraged to apply, as CIRC believes in equal opportunities.

Please apply within 10 days with detailed CV, 2 references one of which may be the present employer. Also please send a write up of approx. 800 words on “Why I am suitable for this post?”

CUTS Institute for Regulation & Competition regrets its inability to acknowledge individual applications received.

CUTS Institute for Regulation & Competition
Website: www.circ.in
Email: circ@cuts.org; hrd@cuts.org
Phone: 91.141.228 2821-3
Fax: 91.141.228 2485

December 7, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2007

A Principled Argument for Personal Criminal Sanctions as Punishment Under EC Cartel Law

Posted by D. Daniel Sokol

A new piece by Peter Whelan of the British Institute of International and Comparative Law argues for A Principled Argument for Personal Criminal Sanctions as Punishment Under EC Cartel Law.

ABSTRACT: This article formulates a principled criminalisation framework in order to argue for the necessity of criminal sanctions as punishment under EC cartel law. It examines the traditional rationales of criminal punishment, demonstrating their relative merits and demerits. The theoretical usefulness of an economic model of analysis concerning the employment of criminal antitrust sanctions is highlighted in the process. The examined theories are then used to establish a 'model of criminalisation', which consists of a number of principles to be adhered to, and a set of (limiting) criteria to be considered, when deciding whether to criminalise certain (cartel) behaviour. This principled criminalisation framework is then employed to argue that a personal criminal sanction for cartel activity is necessary if one genuinely wishes to enforce the law in this area. More specifically, it is argued, first, that the current use of non-criminal sanctions within the EC concerning such arrangements leads to ineffective law enforcement of an activity that causes serious harm to consumers and the economy; and, second, that this deficiency should be rectified through the use of criminal punishment as reinforcement for other less controversial antitrust law enforcement tools, such as fines, director disqualifications, and private enforcement actions.

December 6, 2007 | Permalink | Comments (0) | TrackBack (0)

Sokol to Join University of Florida Law Faculty as Assitant Professor

Posted by D. Daniel Sokol

I am happy to announce that as of this summer I will be joining the wonderful faculty at the University of Florida Levin College of Law as an Assistant Professor.  UF is an excellent school and this move has been very popular in the Sokol household.  There are a number of compelling reasons for this move:

1. Excellent antitrust law colleagues.  Some of the best antitrust law professors in the US are UF faculty members.  First, there is William Page, the Marshall M. Criser Eminent Scholar in Electronic Communications and Administrative Law.  Regular readers will remember that Bill guest blogged about the Court of First Instance Microsoft decision in September.  Bill's recent  book (with John Lopatka)  The Microsoft Case: Antitrust, High Technology, and Consumer Welfare is the best antitrust book of 2007.  Second, UF has Jeff Harrison, the  Stephen C. O'Connell Chair.  Jeff is the author of many books and casebooks on antitrust.  His most recent antitrust article is An Instrumental Approach to Market Power and Antitrust Policy.  Finally, Cliff Jones in the law school's Center for Governmental Responsibility has done some interesting work in comparative and international antitrust.

2.  Excellent antitrust economics colleagues.  Roger Blair of the Warrington College of Business Administration is a great antitrust economist.  In addition to his many antitrust economics publications, Roger serves on the editorial board of the Antitrust Bulletin.  David Sappington also of the of the Warrington College of Business Administration has done some very important work into the implications for antitrust of state owned enterprises, work which has been very influential in my own intellectual development.

3. Demographics.  Florida is the third most populous state and continues to grow.  This ensures a larger legal market for UF grads and a steady stream of highly qualified, smart and motivated students.

4. University characteristics.  The University of Florida is the flagship university of an important state.  This means that the school will always have a steady stream of interesting faculty across departments.  The highly successful university sports teams (particularly in the high profile sports of men's football and basketball) helps to extend the university brand and reputation across the country.

5. Family considerations.  My wife and kids fell in love with Gainesville.  It is a great college town and one in which you can still go swimming outdoors in December.  Additionally, you are a little less than two hours away from Disney World.  Since I have two girls under the age of three, this is a plus factor.  It also turns out that in-state residents of FL get a reduction in price on Disney admissions.

6.  Collegial and smart faculty.  I was very impressed with the UF law faculty on my two visits to the school this year.  This a truly a community of scholars with people who are committed to research and teaching excellence.  The Dean, Bob Jerry, is also great and has both vision and excellent management skills.

Below are pictures of my signing ceremony (I insisted that I needed a signing ceremony just like the athletes) with the very smart, nice and capable Dean of the Law School Bob Jerry

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The swearing in ceremony (which I also insisted upon) was particularly interesting as I had to promise to uphold the values of the law school and university.  There was a bit less press coverage than a recruiting conference for one of the athletes but then again, I do not generate $100 million in revenue for the university.

December 6, 2007 | Permalink | Comments (2) | TrackBack (0)

The Architecture for Health Care Markets: Economic Sociology and Antitrust Law

Posted by D. Daniel Sokol

A new piece by Peter Hammer of Wayne State Law School titled The Architecture for Health Care Markets: Economic Sociology and Antitrust Law explores some of the antitrust implications of economic sociology in health care.

ABSTRACT: Why an economic sociology of health care markets? Surprisingly, while neoclassical economics has well-developed models of competition, it has a fairly impoverished understanding of markets. If economists treat the firm as a black box, the same is equally true of the market. Without a better theory of health care markets and how public and private elements interact, judges will be constrained in their ability to formulate workable antitrust policy, and legislators will be constrained in their ability to formulate a more rational competition policy. Much of my past work has sought answers to these questions looking, as an economist and antitrust lawyer, from the inside out. This essay is an effort to examine health care markets from the outside in, through the lens of economic sociology, rather than traditional economic theory. The principal aid in this process will be Neil Fligstein's book, "The Architecture of Markets: An Economic Sociology of Twenty-First-Century Capitalist Societies". The analysis proceeds as follows: Drawing upon Fligstein's insights, Part II highlights four general fallacies of neoclassical economic understandings of markets (fallacies, at least, from a sociological perspective). Part III uses the tools of economic sociology to construct an architecture of health care markets. Part IV considers the implications of the foregoing on three issues that are significant to the future of medical antitrust law: What are the implications for efforts to construct a competition policy in health care? What are the implications for efforts to better cultivate dynamic efficiency? Finally, what are the implications of economic sociology for the antitrust state action immunity doctrine, the principal tool courts use to police the boundary between the public and private sides of economic markets?

December 6, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 5, 2007

Do Court Decisions Drive the Federal Trade Commission Enforcement Policy on Merger Settlements?

Posted by D. Daniel Sokol

This is a great question and the differences tend to be small, at least according to a recent paper by Malcolm Coate and Shawn Ulrick of the FTC titled Do Court Decisions Drive the Federal Trade Commission Enforcement Policy on Merger Settlements?.

ABSTRACT: Most mergers filed at the enforcement agencies are conglomerate in nature with only minor horizontal overlaps. An enforcement agency may challenge any overlap believed to be adversely affected by the transaction. While the merging firm is entitled to a hearing in federal court, the delay would impose additional costs. Therefore, if the overlap of concern is small relative to the deal, the agency can in effect hold the bulk of the transaction, pending resolution. Hence, the agency's actions are not fully checked by the threat of litigation. This paper measures the extent to which the FTC's decisions to challenge conglomerate transactions differ from the courts'. We find that the representative enforcement regimes are remarkably similar. To the extent that differences exist, we find that the FTC appears more aggressive than the courts for unilateral effects, when (1) the market definition is clear and (2) the market is not highly concentrated.

December 5, 2007 | Permalink | Comments (0) | TrackBack (0)

Controlling Above-Cost Predation: An Alternative to Weyerhaeuser and Brooke Group

Posted by D. Daniel Sokol

Kirkwoj John Kirkwood at Seattle University School of Law brings us Controlling Above-Cost Predation: An Alternative to Weyerhaeuser and Brooke Group.

ABSTRACT: This article proposes a new legal standard for predatory pricing, predatory bidding, and possibly other forms of exclusionary pricing - the welfare/economic sense standard. Under this standard, the plaintiff would have to show that the challenged conduct was not only profitable to the defendant but harmful to the long-run welfare of consumers or suppliers. Moreover, even if the plaintiff made that showing, the defendant would escape liability if it proved that its conduct made economic sense without regard to its anticompetitive effects.

The article argues that the new standard is superior to the below-cost/recoupment standard of Brooke Group and Weyerhaeuser for two principal reasons. First, the new standard would reach above-cost predation, a significant concern given recent cases in the airline and timber industry. Second, the new standard would generally be as workable - for businesses and courts - as the Brooke Group/Weyerhaeuser tests because in a predation case (as opposed to a raising rivals cost case), the defendant could avoid liability simply by showing that the conduct increased profits in the short run. The new standard, in short, is likely to generate fewer false negatives and no more false positives than existing law.

December 5, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 4, 2007

Antitrust Vertical Myopia: The Allure of High Prices and Consumer Experiences and Consumer Experiences

Posted by D. Daniel Sokol

Orbachbarak One of the toughest tricks in the academic business is to take a well known topic and make an important contribution to it.  Barak Orbach of the University of Arizona Rogers School of law has done so with his forthcoming article Antitrust Vertical Myopia: The Allure of High Prices and Consumer Experiences and Consumer Experiences.

The paper re-examines the well-known RPM puzzle: why would a manufacturer be interested in maintaining high retail prices that potentially could result in low sales volume and lower revenues for the manufacturer? Hundreds of books and articles have been written about RPM and, thus, one should always be modest about writing on the topic. Yet, after reviewing the literature since the late 19th century, Orbach offers several interesting insights into the practice of RPM and at least three important contributions to the literature. The three primary contributions that the essay makes:

1. The Allure of High Prices and Consumer Experiences: The pursuit of status and immediate gratifications frequently leads consumers to make silly decisions. Manufacturers and retailers often take advantage of these human weaknesses. This insight is well-known and established in the general literature, but not in antitrust literature thus far. The paper examines how RPM is used to allure consumers through high prices and consumer experiences.

2. Judicial and Academic Blindness: Manufacturers have always admitted that they take advantage of human weaknesses of the kind mentioned above and argued that discounts and lusterless stores harm their products. Nevertheless, courts, lawyers, and economists have never studied this point. Rather, they studied other explanations for manufacturers’ interests in high retail prices. The paper argues that the source for this failure is the reliance on the simplistic premise that “paying less is always better.”

3. A General Framework for Courts and Experts: The paper maps in a systematic manner the traditional explanations for resale price maintenance and shows the applicability of each explanation to reality.

ABSTRACT: Low prices are one of antitrust law's traditional promises to society. Resale price maintenance (RPM), the practice whereby a manufacturer sets pricing rules for retailers, artificially inflates prices and, thus, allegedly runs afoul of antitrust laws. The practice emerged in the last quarter of the nineteenth century with the rise of advertising and has been one of the most controversial antitrust topics ever since. This Essay examines the practice of RPM and argues that courts and scholars have been trapped in the habit of using traditional arguments for and against the practice, overlooking its common uses in markets for premium-brand goods. The Essay argues that manufacturers of premium-brand goods often use RPM to protect the appeal of their products as status goods.

In Leegin Creative Leather Products v. PSKS (2007), the Supreme Court overruled the longstanding per se illegality rule for RPM, holding that the practice should be reviewed under the rule of reason. The Essay offers courts, lawyers, and economists a general framework for analyzing RPM cases.

December 4, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2007

The Necessary Limits to the Control of 'Excessive' Prices by Competition Authorities - A View from Europe

Posted by D. Daniel Sokol

Damien Geradin of Tilberg's Law and Economics Center and the law firm Howrey addresses the case law of the highly political excessive pricing regime in his paper The Necessary Limits to the Control of 'Excessive' Prices by Competition Authorities - A View from Europe.  I share his very strong skepticism of price controls because of their distortionary effect on thre market.

ABSTRACT: Excessive pricing is an area of competition law which differs significantly from most others. First, the notion of excessive pricing has failed to stimulate much economic analysis in Europe. This is in great part due to the fact that most studies on the economics of abusive pricing have focused on exclusionary pricing behavior, as such abuses are more frequent than exploitative ones. Moreover, excessive pricing is an antitrust offence only in a limited number of jurisdictions. There is also a widely accepted view that competition authorities are ill-suited to carry out price controls, a task which should be better left to sector-specific regulators. Because they intervene on an ad hoc basis, i.e. to sanction specific anti-competitive behavior, competition authorities cannot easily transform themselves into price regulators. Price regulation is a long-term effort which requires quasi-permanent supervision.

Against this background, the purpose of this paper is to review the case-law of the EU and of some of its Member States dealing with the control of excessive prices. This paper will also discuss current enforcement trends by the European Commission and National Competition Authorities, including recent cases and policy pronouncements by senior competition law officials. As will be seen, there is a growing consensus among competition agencies that controlling prices should be limited to exceptional circumstances. Moreover, where such circumstances justify them, given the inherent risks of costly mistakes and unintended adverse effects, price controls should be based on a sound economic analysis of market circumstances and carried out with the utmost caution.

December 3, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 2, 2007

Why Can't a Woman Be More Like a Man? American and Australian Approaches to Exclusionary Conduct

Posted by D. Daniel Sokol

Why Can't a Woman Be More Like a Man? American and Australian Approaches to Exclusionary Conduct by George Hay (Cornell Law) and Rhonda Smith (University of Melbourne - Department of Economics) is an interesting paper and wins the award on this blog for the best title of an antitrust working paper for 2007.

ABSTRACT: Much of antitrust law (in the U.S.) or trade practices law (in Australia) is about ?exclusionary conduct,? things that large firms do to acquire an even larger share of the market or to preserve their large market share from being eroded by smaller rivals or new entrants. In the U.S., the main vehicle for policing inappropriate exclusionary conduct by large firms against smaller competitors is Section 2 of the Sherman Act, which prohibits monopolization or attempted monopolization. In Australia, the main vehicle is Section 46 which, generally speaking, prohibits the misuse of market power. The main purpose of this paper is to discuss, in broad terms, how Section 2 deals with exclusionary conduct and to compare that with the Section 46 approach. Those who are dissatisfied with the outcome of certain individual cases in Australia, or those interested in reform generally, are occasionally heard to muse about whether Section 46 should be ?fixed? in some way, and one possible way that is sometimes discussed is to make it resemble Section 2 more closely. One of the issues that this paper will explore is whether there are deficiencies in the Section 46 approach that can (and should) be ?cured? by making it more closely resemble Section 2.

December 2, 2007 | Permalink | Comments (0) | TrackBack (0)