Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 10, 2011

NY Times Writer Comes Out Against AT&T/T-Mobile Merger

Posted by D. Daniel Sokol

James Stewart writes Antitrust Suit Is Simple Calculus in which he comes out against the proposed merger on antitrust grounds. The piece includes some juicy quotes from Herb Hovenkamp.

September 10, 2011 | Permalink | Comments (0) | TrackBack (0)

ASEAN Competition Law

Posted by D. Daniel Sokol

ASEAN
Competition Law

(in looseleaf format)

General Editors
Dr R IanMcEwin
Visiting Professor of Law, National University of Singapore
Senior Economic & Regulatory Advisor, Competition & Antitrust Practice
Rajah & Tann LLP
Kala Anandarajah
Partner & Head, Competition & Antitrust and Trade Practice
Rajah & Tann LLP

With a population of over 600million, ASEAN is fast emerging as amajor
economic trading block. To enhance regional economic performance, the
ASEANmember states have committed to introducing respective
nation-wide competition policy and law by 2015. A good understanding of
competition law is now essential for anyone doing business in the region and
ASEANCompetition Lawis primed to be the definitive guide to competition
and antitrust law in ASEAN.
Written by senior practising experts in the region, it demystifies competition
law for businessmen, lawyers and policymakers by concisely examining and
analysing both existing and prospective competition laws in each country.
Simple in language, ASEANCompetition Lawnot only explains the law but
provides step-by-step guidance on important proceduralmatters.Of
particular value to businessmen, lawyers and particularly corporate counsel
operating across the region are the comparisonsmade between the
different ASEAN countries. References will also bemade where relevant, to
the jurisprudence and policy issues fromAustralia, the United States and the
European Union, the last being the source fromwhichmost ASEAN
competition law draws base.
As this looseleaf title grows with its quarterly updates, the wealth of cases
and expert commentary willmake ASEANCompetition Lawthe foremost
source of competition law in the region - indispensable to any competition
law practitioner.
Table of Contents
Part A – ReviewOf Competition Laws
Part B – TableOf Summary Decisions
Part C – Legislation, Rules AndGuidelines
Key Features
• Simple and complete coverage of competition law in all ASEANmember
states. Eachmember state has its own dedicated chapter
• Explains not only the principles of competition law in each jurisdiction
but also its application and the role of the respective governing bodies
responsible for enforcement of such laws
• Includes competition law related legislation, rules and decrees for each
member state of ASEAN,making it a one-stop reference for all
• Table of Summary Decisions where available, gives users a rundown of
the types of infringements there are and the penaltiesmeted out in the
circumstances

September 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, September 9, 2011

Cet Obscur Objet: Object Restrictions in Vertical Agreements

Posted by D. Daniel Sokol

Joanna Goyder (Freshfields) has written on Cet Obscur Objet: Object Restrictions in Vertical Agreements.

ABSTRACT: ‘Object’ restrictions of competition are conceptually different from ‘hardcore’ restrictions, even if these two types of restriction overlap to a large extent. If a restriction is ‘by object’ then any party alleging an infringement need only show the presence of an agreement including such a restriction, and need not give evidence as to its effects. So that party does not need to establish the relevant market, or the degree of market power held by the undertaking concerned. On the other hand a ‘hardcore’ restriction is one that prevents an agreement from benefiting from a given block exemption, and it is not necessarily an object restriction. The Commission's 2010 Guidelines on Vertical Restraints conflate the two concepts, leading to a risk that the lighter burden of proof applicable to object restrictions will be applied in situations where it is not appropriate. In practice in many cases it will be obvious that the hardcore restriction under assessment is also an object restriction, and the distinction is not of practical relevance. However, there will be cases where the distinction is crucial. For example, the Guidelines treat many restrictions imposed on Internet selling and use of websites by distributors, and some territorial and customer exclusivity provisions, as hardcore, and therefore object, restrictions. Some such cases, involving hardcore restrictions which are not object restrictions, should be analysed on the basis of whether or not they have anti-competitive effects.

September 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Stucke Podcast on Feds Antitrust Challenge to AT&T Merger with T-Mobile

Posted by D. Daniel Sokol

Listen to Maurice Stucke discuss the Antitrust Challenge to AT&T Merger with T-Mobile.

September 9, 2011 | Permalink | Comments (0) | TrackBack (0)

In Defense of Baseball's Antitrust Exemption

Posted by D. Daniel Sokol

Nathaniel Grow, University of Georgia - Department of Insurance, Legal Studies, Real Estate writes In Defense of Baseball's Antitrust Exemption.

ABSTRACT: This Article challenges the overwhelming scholarly consensus opposing baseball’s historic antitrust exemption on policy grounds by providing the first comprehensive defense of the exemption. The Article does so by advancing two primary arguments: first, it argues that the common criticisms of the baseball exemption are largely without merit. Specifically, given the treatment of the other major professional sports leagues under antitrust law, simply exposing baseball to antitrust liability alone will not yield the benefits that the exemption’s critics believe, and in some cases would actually harm the public interest.

Second, and perhaps more importantly, the Article argues that the existing literature has overlooked significant pro-competitive benefits that result from baseball’s antitrust exemption. Specifically, because baseball is loath to lose its exemption legislatively, Congress has been able to use threats of revocation to help extract a variety of valuable concessions from Major League Baseball (MLB). These concessions provide pro-competitive benefits that would not have been directly obtained through antitrust litigation alone. Perhaps most notably, every single round of league expansion in MLB history has been directly preceded by a Congressional threat to revoke the sport’s antitrust exemption. Therefore, baseball’s antitrust exemption provides Congress with considerable leverage over the sport, ultimately leading to significant, but heretofore overlooked, pro-competitive benefits for the public.

Thus, this Article rejects the existing scholarly consensus, and concludes that baseball’s antitrust exemption ultimately has a net pro-competitive effect.

September 9, 2011 | Permalink | Comments (0) | TrackBack (0)

One-stop shopping behavior, buyer power, and upstream merger incentives

Posted by D. Daniel Sokol

Vanessa von Schlippenbach and Christian Wey (University of Dusseldorf) explain One-stop shopping behavior, buyer power, and upstream merger incentives.

ABSTRACT: We analyze how consumer preferences for one-stop shopping affect the bargaining relationship between a retailer and its suppliers. One-stop shopping preferences create demand complementarities among otherwise independent products which lead to two opposing effects on upstream merger incentives: first a standard double mark-up problem and second a bargaining effect. The former creates merger incentives while the later induce suppliers to bargain separately. When buyer power becomes large enough, then suppliers stay separated which raises final good prices. Such an outcome is more likely when one-stop shopping is pronounced.

September 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 8, 2011

A Comparison of Screening Mechanisms for Identifying Potentially Anticompetitive Accountable Care Organizations

Posted by D. Daniel Sokol

Gregory J. Pelnar, Compass Lexecon provides A Comparison of Screening Mechanisms for Identifying Potentially Anticompetitive Accountable Care Organizations.

ABSTRACT: The FTC and DOJ’s Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program explains how the antitrust agencies will screen accountable care organizations (ACOs) to identify ones that are potentially anticompetitive and therefore require further review. In contrast to the antitrust screens the agencies have set forth in earlier Statements or Guidelines which are based on market shares in relevant markets, the Proposed Statement introduces a screen based on market shares in Primary Service Areas (PSAs). By examining several numerical examples, the proposed ACO screen is compared to some alternatives, including the review thresholds set forth in the 2010 Horizontal Merger Guidelines. The results indicate that the proposed ACO screen produces results qualitatively similar to other screens in some instances, but can be more stringent or more lax in others. It is therefore at best premature to conclude that PSAs are a useful tool for screening out potentially anticompetitive ACOs.

September 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Access and Information Remedies in High Tech Antitrust

Posted by D. Daniel Sokol

Spencer Weber Waller, Loyola University Chicago School of Law discusses Access and Information Remedies in High Tech Antitrust.

ABSTRACT: As antitrust cases becomes more complex, so does its remedies. Patterns are beginning to emerge in the dizzying array of remedies in recent monopolization and merger cases. Like the cases themselves, the remedies increasingly focus on access to network industries and platform technologies. In an economy increasingly dominated by information and information technology, access is often dependent on seamless interoperability. It is thus not surprising that antitrust remedies increasingly also have focused the disclosure of competitively necessary information as well as the protection of competitively sensitive information obtained from actual or potential competitors. Finally, the more complex the remedy, the greater the need for sophisticated oversight and dispute resolution mechanisms that rely on third-party experts and typically exceed the resources and strengths of the enforcement agencies.

While access and information remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements in recent times in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high technology industries at the forefront of antitrust enforcement. When taken together, these recent cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgment that the essential facilities doctrine, and similar access remedies, remain an important and needed part of the antitrust toolkit.

This essay will examine the growing use of complex behavioral remedies in both merger and monopolization cases that suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Particularly in settlements, commitments, and consent decrees, the Antitrust Division, Federal Trade Commission, and the European Commission have permitted mergers and unilateral conduct by dominant firms conditioned upon complex behavioral commitments include:

1) Continued obligations to supply or license competitors and customers with vital inputs on fair and non-discriminatory terms;

2) Continued obligations to allow competitors access to networks on fair and non-discriminatory terms;

3) The disclosure of intellectual property, know how, and technical information necessary to make these access obligations meaningful;

4) Creation of firewalls and other devices to prevent the dominant or merging firms from misusing competitively sensitive information obtained through their ongoing relationships with their competitors and customers; and

5) The use of special masters, technical committees, monitors, regulatory bodies, and the creation of third-party alternative dispute resolution procedures to handle the inevitable disputes that will arise without requiring the agencies or courts to act as long-term regulators of the industries and firms in question.

I use examples such as the Microsoft and Intel litigation in the U.S. and the EU, as well as more recent U.S. merger consent decrees involving Google-ITA, Comcast-Universal, and Live Nation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.

September 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Beyond Refusal to Deal: A Cross-Atlantic View of Copyright, Competition and Innovation Policies

Posted by D. Daniel Sokol

Ariel Katz, University of Toronto - Faculty of Law and Paul-Erik Veel, University of Toronto - Faculty of Law discuss Beyond Refusal to Deal: A Cross-Atlantic View of Copyright, Competition and Innovation Policies.

ABSTRACT:

Conventional wisdom holds that the European Union, through the application of its competition law, has opted to subordinate intellectual property rights in the pursuit of competitive markets to a much greater extent than has the United States. We argue that, at least in the context of copyright protection, this conventional wisdom is false. While European antitrust regulation of IPRs does presently seem much more robust and activist than American antitrust regulation of IPRs, focusing solely on one narrow aspect of antitrust doctrine — the treatment of a unilateral refusal to deal — tells less than half the story. Once various doctrines of copyright law are taken into account, the substantive difference between the European and American approaches not only narrows, but in some key respects is reversed. While European jurisdictions have relatively expansive copyright protection which may require antitrust intervention to check anti-competitive uses of copyrighted works, American copyright law provides stronger internal limits on copyright protection in a number of circumstances which thereby lessen the need for resort to antitrust law as an external check on anti-competitive uses of copyrighted works. Furthermore, when the broader impact that antitrust law might have on the exercise of IPRs in the US is considered (not only in substance, but also in antitrust process), it becomes apparent that in key respects, when innovative-competition is at stake, US law grants overall weaker copyright protection than that available in Europe. To the extent that this has contributed to the US comparative advantage in innovation, the US experience provides an example of “less (copyright) is more”.

September 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Intellectual Property Rights and Market Power in the European Union: The Fil Rouge of Consumer Welfare

Posted by D. Daniel Sokol

Andrea Stazi, European University of Rome, Luiss Guido Carli University of Rome, University of Bologna has posted Intellectual Property Rights and Market Power in the European Union: The Fil Rouge of Consumer Welfare.

ABSTRACT: Intellectual property rights are commonly defined as exclusive rights in the sense that they vest only some people, usually creators or inventors, with the exclusive right to dispose of their intellectual works. Such a definition, however, is often misunderstood and IPRs are intended as a sort of guarantee towards the recoupment of the expenses incurred in the inventive or creative activity. On the contrary, intellectual property rights come with intrinsic limitations. First of all, their duration is limited. Secondly, the faculties granted to inventors or creators bear limitations and they do not confer an absolute control over their intangible creations. In fact, several tradeoffs exist within intellectual property paradigms, which make the protection conditional on the fact that the intangible knowledge comes immediately to the enrichment of society at large. Because commentators, generally economists, use to refer to intellectual property rights as monopolies, there is a widespread misleading belief that patents and copyrights entitle the author to obtain a monopoly in the economic sense. This is very far from reality.

September 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 7, 2011

The Relevant Market: An Acceptable Limit to Competition Analysis?

Posted by D. Daniel Sokol

Christopher Townley, King's College London asks The Relevant Market: An Acceptable Limit to Competition Analysis?

ABSTRACT: Imagine that an agreement affects two separate markets. In market A, the agreement causes small (but appreciable) consumer welfare losses. In market B, the agreement generates massive consumer welfare benefits, dwarfing the losses in market A. Should one aggregate these costs and benefits across markets (‘Aggregate Across Markets’) when assessing the agreement under Article 101, or should one demand that the benefits outweigh the costs in each relevant market?

This was one of three themes discussed at a breakfast roundtable that the OFT organised in May 2010. The focus of the debate was a recent OFT paper: OFT, Article 101(3) - A Discussion of Narrow versus Broad Definition of Benefits (OFT Discussion Paper). 23 experts attended, some from other UK competition authorities (the Competition Commission and Ofcom), DG COMP, some UK government departments (Department for Environment Food and Rural Affairs and the Department for Business Innovation and Skills), academia, businesses and law firms. The OFT compiled a synopsis of the roundtable’s discussion (Synopsis).

The OFT Discussion Paper asks whether we should Aggregate Across Markets. The relevant Commission notice says: “The assessment under Article 81(3) [now Article 101(3)] of benefits flowing from restrictive agreements is in principle made within the confines of each relevant market to which the agreement relates.” The OFT Discussion Paper agrees that this is how the law currently stands. It claims that this issue is increasingly important, as two-sided markets become more prevalent.

This paper starts with some preliminary observations on the OFT Discussion Paper, Section 2; then it shows that the EU Courts Aggregate Across Markets, so has the Commission, Section 3. Given how much it undermines legal certainty, the Commission needs strong justifications for deviating from the EU Courts’ case law in its guidance. The paper then discusses the advantages of Aggregating Across Markets, Section 4; and the disadvantages, Section 5. Section 6 concludes that, in addition to following the EU Courts’ case law; the arguments in favour of Aggregating Across Markets outweigh those against. I recommend that EU competition authorities that are not already Aggregating Across Markets, should start soon. As the techniques involved are no different from those used when one does not Aggregate Across Markets, decision-makers will easily be able to modify their behavior.

September 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Price Intransparency, Consumer Decision Making and European Consumer Law

Posted by D. Daniel Sokol

Willem H. Van Boom, Erasmus University Rotterdam (EUR) - Erasmus School of Law discusses Price Intransparency, Consumer Decision Making and European Consumer Law.

ABSTRACT: Price comparison is a basic element of competition. For comparison to work, at least prices need to be transparent. Moreover, price is usually a focal point in consumer thinking and deciding on transactions. Hence, obfuscating prices can be detrimental to consumers. Therefore, it is vital for policy-makers to know how transparent pricing really is.

Commercial practices involving price intransparency can be detrimental to consumer decision making and may be associated with market failure. So, legislative intervention to ensure price transparency is sometimes warranted. Suppliers may disclose and frame pricing information in such ways as to influence consumers. For some suppliers, advantages may be gained by obfuscating price - through practices ranging from the outright hiding of price terms in the small print to subtle ways of throwing in gifts or adding charges during the vending process. Do consumers appreciate the implications of the fact that by framing price in different ways suppliers actually try to influence their demand for products? And how does the law broadly speaking respond to problems of price intransparency?

In this article, behavioral science insights are combined with a legal analysis of European consumer law in order to chart some of the detrimental influences of price intransparency on the consumer decision-making process and to answer whether and to what extent European consumer law addresses these issues. In doing so, this article first reviews research from consumer psychology, marketing, and behavioral law, and economics regarding the influence of presentation, framing, and transparency of price on the consumer decision-making process. Subsequently, it describes and evaluates the legal framework offered by European consumer law and how this framework responds to practices of price intransparency. Particular problematic pricing techniques are identified and discussed. In conclusion, attention is drawn to the disadvantages of the increasing full harmonization character of European consumer law for combating price intransparency at Member State level.

September 7, 2011 | Permalink | Comments (0) | TrackBack (0)

U.S. and EU Antitrust Enforcement: What Role in a More Heavily Regulated Financial Sector?

Posted by D. Daniel Sokol

Olivier Freget, Todd Fishman, & David Gabathuler (Allen & Overy) ask U.S. and EU Antitrust Enforcement: What Role in a More Heavily Regulated Financial Sector?

ABSTRACT: It can be questioned, whether the introduction of a more robust financial regulatory scheme and the apparent resurgence of concerns about competition potentially weakening financial stability and even possibly impeding effective regulation will not have damaging consequences for competition law enforcement in the financial sector, and the banking industry in particular.

This paper takes a comparative approach and discusses whether the enforcement of the competition rules in the United States and in the EU could be constrained-on conflict grounds-by broadly based rules and regulations addressing perceived market failures in the financial sector. It then concludes by discussing whether the apparent differences between the two systems may lead to divergent enforcement outcomes, in particular in terms of the level of scrutiny by the respective U.S. and EU antitrust authorities, and also highlights the risk of conflicts between financial regulation and antitrust.

 

Olivier Fréget, Todd Fishman, & David Gabathuler (Allen & Overy)

September 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Price Intransparency, Consumer Decision Making and European Consumer Law

Posted by D. Daniel Sokol

Willem H. Van Boom, Erasmus University Rotterdam (EUR) - Erasmus School of Law has posted Price Intransparency, Consumer Decision Making and European Consumer Law.

ABSTRACT: Price comparison is a basic element of competition. For comparison to work, at least prices need to be transparent. Moreover, price is usually a focal point in consumer thinking and deciding on transactions. Hence, obfuscating prices can be detrimental to consumers. Therefore, it is vital for policy-makers to know how transparent pricing really is.

Commercial practices involving price intransparency can be detrimental to consumer decision making and may be associated with market failure. So, legislative intervention to ensure price transparency is sometimes warranted. Suppliers may disclose and frame pricing information in such ways as to influence consumers. For some suppliers, advantages may be gained by obfuscating price - through practices ranging from the outright hiding of price terms in the small print to subtle ways of throwing in gifts or adding charges during the vending process. Do consumers appreciate the implications of the fact that by framing price in different ways suppliers actually try to influence their demand for products? And how does the law broadly speaking respond to problems of price intransparency?

In this article, behavioral science insights are combined with a legal analysis of European consumer law in order to chart some of the detrimental influences of price intransparency on the consumer decision-making process and to answer whether and to what extent European consumer law addresses these issues. In doing so, this article first reviews research from consumer psychology, marketing, and behavioral law, and economics regarding the influence of presentation, framing, and transparency of price on the consumer decision-making process. Subsequently, it describes and evaluates the legal framework offered by European consumer law and how this framework responds to practices of price intransparency. Particular problematic pricing techniques are identified and discussed. In conclusion, attention is drawn to the disadvantages of the increasing full harmonization character of European consumer law for combating price intransparency at Member State level.

September 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 6, 2011

George Priest in the WSJ on Washington's Antitrust Timewarp

Posted by D. Daniel Sokol

George Priest of Yale Law School has an op-ed on the AT&T/T-Mobile merger. See here.

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)

UF Law profiles Antitrust Star Bruce Hoffman '92 in Publication

Posted by D. Daniel Sokol

UF Law's online magazine has profiled Bruce Hoffman, chair of Hunton's antitrust practice. See the story here. Bruce guest lectured in my Antitrust-IP seminar last spring.

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Due Process: The Exchange of Information and Risk of Hindering Effective Cross-Border Co-Operation in Competition Cases

Posted by D. Daniel Sokol

Julian Nowag, University of Oxford - Faculty of Law discusses Due Process: The Exchange of Information and Risk of Hindering Effective Cross-Border Co-Operation in Competition Cases.

ABSTRACT:The paper investigates the different regimes for the exchange of information in cross-border competition cases. It argues that the co-operation and information exchange mechanisms in competition cases established by Regulation 1/2003 have been overtaken by the means provided by the European Evidence Warrant which was developed under the former third Pillar (Co-operation in Criminal Matters). Moreover, the paper argues that both means: those provided by Regulation 1/2003 and those provided by the European Evidence Warrant are in general available to national competition authorities. In the light of the merging of the first pillar and third pillar under the Lisbon Treaty possible solutions are put forward to address the inconsistencies created by the availability of different co-operation mechanisms.

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Inter-Generational Impacts in Competition Analysis: Remembering Those Not Yet Born

Posted by D. Daniel Sokol

Christopher Townley, King's College London has written on Inter-Generational Impacts in Competition Analysis: Remembering Those Not Yet Born.

ABSTRACT:Imagine an agreement between two engineering companies, which produce vehicle components. They set up a joint venture to combine their R&D efforts to improve the production and performance of an existing component. The companies pool their existing technology licensing businesses in the area. The R&D is paid for out of current profits and will, in part, be funded by an agreed price increase; so current consumers pay for it. If the R&D is successful, only future consumers will benefit.

The OFT Discussion Paper asks whether ‘consumers’, in Article 101(3)’s second condition, only refers to current consumers (that is, those currently purchasing the product) or does it extend to future consumers (who do not purchase the product now, perhaps because they are not yet alive, but will do so in the future). In other words, the OFT Discussion Paper notes that over a longer time period: “…benefits can be inter-generational. Here the consumers who effectively paid for the benefits do not receive them. Instead, future generations of consumers benefit. Currently, this appears to be the threshold above which we infer that the Commission no longer considers them relevant benefits…” This was one of three themes discussed at a breakfast roundtable that the OFT organised in May 2010. The focus of the debate was a recent OFT paper: OFT, Article 101(3) - A Discussion of Narrow versus Broad Definition of Benefits (OFT Discussion Paper). 23 experts attended, some from other UK competition authorities (the Competition Commission and Ofcom), DG COMP, some UK government departments (Department for the Environment Food and Rural Affairs and the Department for Business Innovation and Skills), academia, businesses and law firms. The OFT compiled a synopsis of the roundtable’s discussion (Synopsis).

Section 2 presents some preliminary observations; then Section 3 examines some legal, moral and economic issues. Next, the paper discusses the advantages and disadvantages of aggregating costs to current consumers with benefits to future consumers in the same market (Aggregating Across Generations), Sections 4 and 5, respectively. Section 6 concludes, in favor of Aggregating Across Generations.

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Reconsidering Antitrust's Goals

Posted by D. Daniel Sokol

Maurice E. Stucke, University of Tennessee College of Law has a new paper that is Reconsidering Antitrust's Goals.

ABSTRACT: Antitrust policy today is an anomaly. On the one hand, antitrust is thriving internationally. On the other hand, antitrust’s influence has diminished domestically. Over the past thirty years, there have been fewer antitrust investigations and private actions. Today the Supreme Court complains about antitrust suits, and places greater faith in the antitrust function being subsumed in a regulatory framework. So what happened to the antitrust movement in the United States?

Two import factors contributed to antitrust policy’s domestic decline. The first is salience, especially the salience of the U.S. antitrust goals. In the past thirty years, enforcers and courts abandoned antitrust’s political, social, and moral goals, in their quest for a single economic goal. Second antitrust policy increasingly relied on an incomplete, distorted conception of competition. Adopting the Chicago School’s simplifying assumptions of self-correcting markets composed of rational, self-interested market participants, the courts and enforcers sacrificed important political, social, and moral values to promote certain economic beliefs.

With the anger over taxpayer bailouts for firms deemed too-big-and-integral-to-fail, the wealth inequality that accelerated over the past thirty years, and the current budget cuts and austerity measures, the United States is ripe for a new antitrust policy cycle.

This Article first summarizes the quest during the past 30 years for a single economic goal. It discusses why this quest failed. Four oft-cited economic goals (ensuring an effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom) never unified antitrust analysis. After discussing why it is unrealistic to believe that a single well-defined antitrust objective exists, the Article proposes how to account antitrust’s multiple policy objectives into the legal framework. It outlines a blended goal approach, and the benefits of this approach in providing better legal standards and reviving antitrust’s relevance.

 

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Book: European Competition Law Annual 2009 The Evaluation of Evidence and its Judicial Review in Competition Cases

Posted by D. Daniel Sokol

Claus-Dieter Ehlermann and Mel Marquis (both EUI Law) have come out with European Competition Law Annual 2009 The Evaluation of Evidence and its Judicial Review in Competition Cases.

BOOK ABSTRACT: Every year, top-level market regulators, academics and legal practitioners attend the Annual Competition Workshop organised at the European University Institute in Florence. The speakers are invited to discuss a particular set of critical issues in the field of competition law and policy. The entire content of the proceedings - both the oral discussions and the written contributions - are published in the European Competition Law Annual series.

This is the fourteenth in the series, reproducing the debate which in 2009 examined the evaluation of evidence and its judicial review in competition cases. The issues discussed included, among others, the burden of proof, the standard of proof and the standard of review with respect to antitrust infringement decisions and merger decisions, both at the level of the EU and at the national level in a number of Member States.

In 2009, the Workshop participants were:

Rafael Allendesalazar
Kelyn Bacon
Judge Gerald Barling
Simon Bishop
Judge Joachim Bornkamm
Judge Michael Boudin
Jochen Burrichter
Dennis Carlton
Fernando Castillo de la Torre
Justin Coombs
Lorenzo Coppi
Claus-Dieter Ehlermann
John Fingleton
Ian Forrester
Judge Nicholas Forwood
Eric Gippini-Fournier
Barry Hawk
Alberto Heimler
Per Hellström
Pieter Kalbfleisch
Robert Kwinter
Bruno Lasserre
Philip Lowe
Mel Marquis
Damien Neven
Judge Aindrias Ó Caoimh
Luis Ortiz Blanco
John Ratliff
J. Thomas Rosch
Heike Schweitzer
Mario Siragusa
Jacques Steenbergen
James Venit
Judge Nils Wahl
Judge Vaughn Walker

September 6, 2011 | Permalink | Comments (0) | TrackBack (0)