Antitrust & Competition Policy Blog

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

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Tuesday, September 20, 2011

The Welfare Effects of Bundling in Multichannel Television Markets

Posted by D. Daniel Sokol

Gregory S. Crawford (Warick - Econ) and  Ali Yurukoglu (Stanford - GSB) have an interesting paper on The Welfare Effects of Bundling in Multichannel Television Markets.

ABSTRACT: We measure how the bundling of television channels affects short-run social welfare. We estimate an industry model of viewership, demand, pricing, bundling, and input market bargaining using data on ratings, purchases, prices, bundle composition, and aggregate input costs. We conduct counterfactual simulations of à la carte policies that require distributors to offer individual channels for sale to consumers. We estimate that negotiated input costs rise by 103.0% in equilibrium under à la carte. These are passed on as higher prices, offsetting consumer surplus benefits from purchasing individual channels. Mean consumer and total surplus change by an estimated -5.4% to 0.2% and -1.7% to 6.0%, respectively. Any implementation or marketing costs would reduce both, and would likely make à la carte welfare-decreasing.

September 20, 2011 | Permalink | Comments (0) | TrackBack (0)

The Independent Invention Defence in a Cournot Duopoly Model

Posted by D. Daniel Sokol

Elisabetta Ottoz, University of Turin - Department of Economics and Franco Cugno, University of Turin - Department of Economics discuss The Independent Invention Defence in a Cournot Duopoly Model.

ABSTRACT: Maurer and Scotchmer (2002) pointed out that patents may be inferior to other forms of intellectual property in that the independent invention is not a defence to infringement. The authors’ analysis refers to situations in which there is an unlimited number of potential entrants by independent duplication. If independent invention were a defence to infringement, the continual threat of entry would induce the patent−holder to license its technology on terms that commit to a lower output price, and this is where the social benefit lies. In this note we extend the analysis to the case of a single potential entrant when the law impose certain restrictions on the contracts that patent holders and licensees can subscribe. We show that these legal restrictions may be partial substitutes for the continual threat of entry by as yet unidentified subjects.

September 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

DOJ Antitrust 2011 Annual Newsletter is Out

Posted by D. Daniel Sokol

According to its press release:

The Department of Justice’s Antitrust Division today issued the 2011 edition of its annual newsletter on its website. The newsletter provides information about the recent activities and accomplishments of the Antitrust Division for the general public as well as the legal and business communities.

You can download the newsletter here.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

The Institutional Structure of Antitrust Enforcement: Comments of Josh Wright

Posted by Josh Wright

In the first paragraph of Professor Crane´s "The Institutional Structure of Antitrust Enforcement," he sets forth the nature, scope, and objective of his project:

Antitrust enjoys a strong tradition of relatively short monographs that cover the entire field from a theoretical, historical, and normative perspective.  Among them are Richard Posner´s path-breaking 1976 Antitrust Law (substantially updated in 2001); Robert Bork´s 1978 Chicago School Bible, The Antitrust Paradox; Keith Hylton´s 2003 economically oriented Antitrust Law: Economic Theory and Common Law Evolution; and Herbert Hovenkamp´s 2005 The Antitrust Enterprise.  Each of these books focuses primarily on substantive antitrust norms (i.e., merger or predatory pricing law) and the appropriate level of regulatory intervention in particular industrial segments (i.e., the new economy or regulated industries).  To date, no one has tried to present a comprehensive account of the institutions that implement antitrust law.  This book makes such an attempt.

Mission accomplished.  I write this review from an office in which the 4 aforementioned "relatively short" monographs (a term best loosely applied to Bork´s volume and perhaps the others) sit next to one another, occupying the ever-valuable "eye-level shelf space" of my book shelf reserved for frequently referenced texts.  

The design and structure of antitrust and competition policy institutions is increasingly critical to the way that academics think about "optimal" regulation not only within antitrust, but how institutions and institutional design relates to economic growth generally.  Within antitrust, I do not know of any scholar who has thought longer and harder about institutional design than Commissioner Kovacic -- whose FTC at 100 Report is mandatory reading for anybody interested in this subject.  Crane's work fits quite nicely within the research agenda for antitrust institutions set forth by Commissioner Kovacic.  Crane's focus on the origins and development of U.S. antitrust institutions (Section I of the book) especially demonstrates the historical perspective that often illuminates his work.  I learned a great deal about the history of antitrust institutions as well as what Crane describes as "anti-institutions" (political or legal forces that arise to counter the directional pull of institutions) from this Section.  A second characteristic of Crane's work is that it is generally quite data-driven; historical trends and claims are meticulously supported with evidence where available. 

No book review is complete without the reviewer lodging a complaint, typically with reference to a dispute over which his priors differ from the author's.  The biggest challenge facing the daunting task of creating a volume of one-stop shopping for consumers of knowledge concerning U.S. antitrust institutions is navigating the blurry line between substance and procedure.  Positive analysis of the development of institutions  -- as Crane acknowledges -- cannot really be done without "also implicating its substantive goals, ideological commitments, rules, and attitudes toward the competitive process."  The trick here is to make one's assumptions about the relationship between process and substance clear.  For economists, changes in procedure are generally evaluated by the same welfare-maximization standard as substantive rules are assessed.  In at least one place in the book -- and an area in which I think Crane's conventional approach would be highly informative -- I was left wanting either a more explicit articulation of the normative model being applied to evaluate policy proposals or evidence that they would in fact generate desirable outcomes.

Perhaps no U.S. antitrust institutional reform has been discussed more frequently as of late than what to do about Section 5 of the FTC Act.  In Chapter 7, where Crane most clearly shifts gears from positive to normative policy prescription and various institutional reforms to improve the FTC and DOJ, he takes on the Section 5 mess (pages 135-143).  After discussing the relevant history, Crane discusses the well-known failure of Section 5 to make any real dents in antitrust policy through litigation and considers possible interpretations of Section 5 that would lead to policy improvements.  In considering approaches to Section 5, Crane makes many points I find myself agreeing with ("the Commission is on strongest grounds when challenging market power created by fraud or deception" or "courts are most likely to defer to administrative agency judgments in cases involving commercial practices about which the courts have not developed a deeply rooted body of precedent.").  Neither of these points makes a strong normative case for broadening the scope of Section 5.

But Crane also argues that the "Commission is likely to find greater judicial receptivity to its norm creation in cases involving consumer decision making" and that the Commission's Section 5 program should be centered upon cases in which it can "explain how its expertise with consumer psychology, values, and practices justifies a more liberal construction of Section 5 than might be justified under the Sherman Act."  (page 139).  Crane pushes further by arguing that "agency expertise may be most useful -- and hence call for the greatest judicial deference --- where it concerns predictions about future consequences of incipient behavior."  (p. 140).  The heart of the claim is that "courts may be comparatively ill-equipped to divine the future and more likely to trust an agency's prediction based on its superior familiarity with the type of conduct at issue."

These claims are susceptible to empirical examination.  Does the Commission really have a comparative advantage over generalist Article III judges in evaluating antitrust cases generally?  Cases involving predictions about the future?  There is some evidence available with respect to the performance of generalist judges.  But here, Crane appears to presume that the Commission is a higher quality decision-maker than federal district court judges.  Of course, given the Commission's lack of success with Section 5 in the courts, one wonders both whether (1) the available data would support that claim, and (2) if not, what institutional features of the FTC prevent it from claiming such superiority (or if so, which institutions foster that advantage).

One can always find something to disagree with in a 250-page monograph.  Perhaps the best feature of Crane's work (and this book is no exception) is that his multi-faceted approach offers something for everyone: economists, lawyers, and practitioners will all learn from the book.  My overall view of the quality of Professor Crane´s book -- no surprise to readers of his academic articles from which the book is largely derived -- is perhaps best revealed by the company it will now keep on that book shelf.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

The Antitrust Implications of Licensed Occupations Choosing Their Own Exclusive Jurisdiction

Posted by D. Daniel Sokol

Jarod M. Bona, DLA Piper discusses The Antitrust Implications of Licensed Occupations Choosing Their Own Exclusive Jurisdiction.

ABSTRACT: State and local government restraints, with a few exceptions, receive little attention from the antitrust laws because they are limited by the "state action immunity" doctrine. These public restraints take many forms, from limiting the number of taxicab licenses in a city to professional advertising restrictions to actual price or output limitations. This article focuses on state and local licensing restrictions. In doing so, it examines two instances where state boards that are predominantly made up of licensed occupations enact policies that expand the sphere of commerce that is reserved by law to these occupations. These examples present compelling circumstances for antitrust regulation because the deciding state entity is dominated by members with private incentives to expand the scope of their occupation to the detriment of consumers.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

The Institutional Structure of Antitrust Enforcement: Comments of Sandra Marco Colino

Posted by Sandra Marco Colino

Antitrust has gone viral. The rapid emergence of antitrust regimes since the last decades of the twentieth century has raised questions as to the usefulness of the experience of established regimes for budding systems. The ‘copycat’ approach can very quickly be discarded; context matters, and scholars have long stressed the need to consider economic, political, legal and historical factors when regulating competition.1 And just like ‘[a] properly functioning free market system does not spring spontaneously from society’s soil as dandelions spring from suburban lawns’,2 antitrust systems do not miraculously ripen: they require experimenting. Nonetheless, there are obvious benefits in looking at the practice of those that have been experimenting for longer. Despite contextual disparities, many of the challenges faced by recently introduced regimes are likely to have arisen, and been dealt with, in other jurisdictions. Therefore, the temptation to peep at others’ answers is comprehensible and may indeed prove enlightening. Antitrust scholarly writing is useful for unlocking this acquired knowledge. In this context, there is an added value in Crane’s insightful exploration of US antitrust procedure in his book ‘The Institutional Foundations of US Antitrust Enforcement’. Twelve short chapters take the reader on a fascinating journey into the history of the antitrust institutions of one of the oldest competition regimes (part I, chapters 1-4), suggesting ways for optimising their performance (part II, chapters 5-9) and even looking beyond the States at the institutional arrangements of other selected antitrust systems (part III, chapters 10-12).

As Crane himself explains in the introduction, by focusing on institutions (understood as ‘the system’s transsubstantive determinants, their interactions and outputs’, p. xii) and enforcement rather than substance, the book fills a notorious lacuna. It is not that the topic was previously unexplored, but the book is pioneer for its comprehensive coverage. Institutional choices lay down the rules of the game in society,3 and determine the dynamics of antitrust systems around the world.4 In this sense, Crane’s detailed analysis of recurring institutional problems is arguably relevant beyond national borders. Take Asia for instance, where most competition regimes are only just germinating. Some of the local elites are reluctant to succumb to the antitrust trend, as they struggle to understand the merits of introducing restrictions on the freedom of entrepreneurs in the marketplace. In Hong Kong, opposers to the Competition Bill are concerned about the uncertainties businesses will face as a consequence of the Bill’s open-ended provisions. Such a view unduly emphasises the role of the legislator. As Crane explains, ‘highly generalized and open-textured antitrust norms’ are the general rule, and it is for enforcers to subsequently flesh out the details and apply the law to the facts (p. 96).

Even countries that have introduced competition laws are oftentimes still far from ‘institutionalising’ their regimes. The paucity of cases that have prospered in China since the introduction of the Chinese Anti-Monopoly Law is less surprising considering the somewhat wacky ‘tripartite’ institutional framework (pp. 214-217).5 And while it is never easy to predict how adequately institutions will use their enforcement powers,6 the problems of a policy orchestrated by three conductors can be seen in plain sight. A certain parallelism can be drawn between the Chinese system and the institutional arrangements of US federal enforcement, where two agencies co-exist with ‘different but not that different’ powers, as discussed in Chapter 2. Struggling to provide a convincing justification for dual enforcement, Crane concludes that the system may simply not be broken enough to need fixing (p. 48). Later in the book he attempts to provide suggestions for improving dual enforcement (chapter 7). The insistence on the benefits of co-operation between enforcers is of doubtless relevance for any institutionally-complex new regime, as a single (public enforcement) voice is paramount for the development of a coherent policy (pp. 130-131).

A final interesting aspect refers to the politics of antitrust. Many of the problems detected in Asia – from Hong Kong’s resistance to competition law to China’s questionable institutional choices – can be traced back to a strategic, political use of the law not unknown in US history. Much ink has been spilled about to the extent to which political ideologies have played a role in the vigour of antitrust enforcement. The ‘swinging pendulum’ narrative, convincingly questioned by Kovacic,7 is rocked yet again by Crane’s statistically validated study of antitrust’s increasing technocracy (chapter 4). Importantly, he shows that the populist dimension has all but vanished in the US, as the public progressively ‘ceased to view antitrust as a primarily political enterprise, and the political parties saw no gain from attempting to exploit it as one’ (p. 78). Moreover, Crane concludes that there is an acceptance that ‘antitrust is an important but largely technical matter that should be administered vigorously but without great public fanfare’ (p. 86). While such a view may come naturally with the maturity of antitrust systems, for the time being the political visibility of antitrust in Hong Kong continues to prevent the adoption of the law altogether.

Crane’s book is an instant classic; it is a pleasure to read, and remains insightful and incisive throughout. One hopes that the author’s critical analysis and shrewd suggestions are used constructively to their full potential in new jurisdictions for that all-crucial informed antitrust experimenting.

1. HM Hollman and WE Kovacic, ‘The International Competition Network: Its Past, Current and Future Role’ (2011) 20 Minnesota Journal of International Law 274, at 279-280
2. GL Reback, Free the Market! Why Only Government Can Keep the Marketplace Competitive (2009) Penguin
3. DC North , Institutions, Institutional Change and Economic Performance, 3rd ed (1991) Cambridge University Press
4. D Sokol, ‘Antitrust, Institutions, and Merger Control’ (2010) 17 George Mason Law Review 1055
5. EM Fox, ‘Antitrust and Institutions: Design and Change’ (2010) 41 Loyola University Chicago Law Journal 473, at 487
6. Sokol, D. ‘Antitrust, Institutions, and Merger Control’ (2010) 17 George Mason Law Review 1055
7. WE Kovacic, ‘The Modern Evolution of US Competition Policy Enforcement Norms’ (2003) 71 Antitrust Law Journal, 377

 

 

 

 

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Is Google Just Microsoft 10 years later?

Posted by D. Daniel Sokol

The NY Times has an article on similarities and differences between the antitrust cases against Microsoft and Google in today's paper.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Which Goals Count in Article 101 TFEU?: Public Policy and its Discontents

Posted by D. Daniel Sokol

Christopher Townley, King's College London asks Which Goals Count in Article 101 TFEU?: Public Policy and its Discontents. ABSTRACT: Midway through 2010, the OFT organised a breakfast roundtable to discuss Article 101’s goals. The focus 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 (the Department of the Environment and the Department of Business (BIS)), academia, businesses and law firms. This paper focuses on the OFT Discussion Paper itself and the OFT’s synopsis of the discussion at the roundtable (Synopsis).

There is renewed interest in Article 101’s goals today. This is an important issue. Knowing: which goals count; which markets one can look to for benefits; and, when these benefits must arise, can affect the compatibility of agreements with the internal market, when examined through an Article 101 lens. The OFT Discussion Paper discusses all three points. The legal position is relatively clear. As I note below in greater detail, several ECJ and General Court judgments (together the EU Courts) consider public policy benefits in Article 101. The EU Courts also balance benefits against losses across various markets. Additionally, the EU Treaties demand that benefits to future consumers should be considered even at the expense of today’s consumers.

Despite this, confusion reigns, because in its Article 81(3) Guidelines, the Commission makes a very different claim: "[t]he objective of Article 81 [now Article 101 TFEU] is to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources."

The Commission adds “[t]he assessment under Article 81(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 does not necessarily reflect the OFT’s views; but, its arguments often follow the Commission.

Confusion has arisen for three key reasons. First, and despite its own claims to the contrary, the Commission’s modernisation of Article 101’s procedural aspects was a Trojan horse. Inside hid an army of Commission officials poised to reinterpret Article 101’s substance because of the new procedural landscape. Worse still, the Commission does not admit that its guidelines promote change. Secondly, under DG COMP’s tutelage there has been a rise in the importance given to economic (particularly consumer welfare) thinking in the EU competition rules and thus in the power that economists wield there. At times this has led to a blind fetishism with consumer welfare in DG COMP and many national competition authorities (NCAs); competition practitioners often follow this lead. Economic insights are important in the application of EU competition law; but, economics does not provide appropriate guidance on normative goals given the current EU framework and precedent and certainly not without an open discussion of the changes the Commission seeks. Thirdly, the Commission’s modernisation agenda has given more decision-making powers to the NCAs. Yet, the model of co-operation governing the links between the NCAs and the Commission is insufficiently clear about how much freedom the NCAs have over fundamental policy choices and, ultimately, how uniform Article 101’s application should be in the EU.

As I have said, there is a renewed interest in Article 101’s goals today. A recent UK report on business and the government’s Big Society vision lists competition law as a perceived barrier to firms coming together, even when this would have a powerful social or environmental impact. In a speech dealing with this report the UK Prime Minister talked of a deal where government would reduce taxes and regulation if business help tackle social challenges. In response to the perception that competition law bars firms from coming together to achieve public policy goals he said “…we will do everything we can to tackle those barriers head-on…” The Dutch Competition Authority’s Annual Report 2009 also focuses on public policy goals; and the Nordic Competition Authorities recently published a paper on EU competition policy and green growth. There have also been several recent academic conferences on this topic; and a few publications in the area.

This article focuses on the relevance of non-economic goals in Article 101. Part 2 makes a few general observations on the OFT Discussion Paper. Part 3 discusses the advantages and disadvantages of considering non-economic goals in Article 101(3)’s first test. Part 4 concludes. In two later ECLR papers I focus on the other two topics covered in the OFT Discussion Paper: which markets one can look to for benefits and when these benefits must arise.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)

The Institutional Structure of Antitrust Enforcement: Comments of Max Huffman

Posted by Max Huffman

Gen Next Antitrust? Reviewing Daniel Crane, The Institutional Structure of Antitrust Enforcement (Oxford, 2011).

My job lets me read most anything that grabs my attention and consider it “billable time,” so at some point or another a fair number of the new books on antitrust/competition law, policy or enforcement find their way to my inbox. I find all of it interesting and most of it educational, but only rarely does a book offer (threaten?) completely to change my understanding of antitrust law and policy. In the past year two have. One is Tim Wu’s The Master Switch (2010), in which Wu traces the development of information industries with particular attention to the processes of innovation, development, consolidation and regulation over time and across industries. The other is Dan Crane’s The Institutional Structure of Antitrust Enforcement (2011), the subject of this review.

The Institutional Structure is a 12-chapter discussion of antitrust enforcement, with primary emphasis on the US, but turning in the last three chapters to a comparative and international perspective. I’ve considered in the past teaching a seminar on “antitrust litigation and enforcement” -- it’s been a matter of no small embarrassment to me that despite scoring well as a law student taking antitrust, I began my career as a DOJ staffer not knowing how the agencies handled their overlapping enforcement authority. This book would serve well for a seminar: one chapter per week for the semester, leaving the remaining week or two for student paper presentations.

Crane’s first chapter is enormously interesting. He teaches that conflicts between the fear and embrace of monopoly pervaded the founders’ political economic philosophy. Even after the battles over federal incorporation had subsided, state incorporation and the race to the bottom (states competing for corporate charters by passing deregulatory corporation laws) -- with Standard Oil’s home state of New Jersey being that era’s Delaware -- lent urgency to the enactment of federal antitrust legislation.

But how to protect against economic harm caused by aggregations of capital was itself a problem. Crane describes first the regulatory approach, whose advocates favored federal incorporation of business entities, presumably preempting state incorporation laws where interstate commerce was concerned, and “supervis[ing] the activities of the gigantic interstate trusts and prevent[ing] them from exercising monopolistic power.” Wu’s Master Switch detailed the failings of the regulatory approach in the case of AT&T, and I thus applauded the success of those who favored second-order regulation under what Crane has called the “crime-tort model” of antitrust enforcement.

In the next two chapters Crane discusses the history of federal antitrust institutions and private enforcement, before turning, in Chapter 4, to a theme he has explored in a series of articles in recent years -- antitrust enforcement as a technocratic endeavor. Crane’s work in that field -- most notably his 2008 article “Technocracy and Antitrust” -- is extraordinary, and in my experience unique. When not so long ago I left practice to teach (among other things) antitrust law, I recall commiserating with other new entrant antitrust academics that there were no more grand theories to explore. Antitrust as consumer protection was firmly embedded, antitrust as guardian of democratic ideals had been tried and failed, and antitrust as economics had been adopted (with consumer protection as the overarching goal). What was left to write? There remained, of course, plenty of room to quibble at the margins, but all that was defining the contours of somebody else’s theory.

But that may not be so. Dan Crane writes in the language of antitrust economics, but his focus on the institutions of antitrust enforcement reflects an entirely different theoretical framework. To be clear, institutionalism is not new in economics or political theory. In law, institutionalism is an adjunct to Henry Maine’s time-honored dictum that “substance is secreted in the interstices of procedure.” And even in antitrust specifically, scholars such as William Kovacic have written that “institutions matter.” But Crane has pursued this study, demonstrating in his articles and now in The Institutional Structure that approaches to enforcement are as important as are the rules being enforced. Others are following this lead -- for example, Danny Sokol has written well and extensively in the area of comparative antitrust institutionalism.

One powerful argument Crane makes in service of his institutionalist approach is the argument that turned me on to his scholarship several years ago. Crane demonstrates the failings of saddling the enforcement agencies, and in particular the Federal Trade Commission, with rules derived from private antitrust enforcement. He dubs this phenomenon “private enforcement hangover,” and uses it to explain, for example, decisions in US v. AMR Corp. (DOJ saddled with defendant-friendly Brooke Group precedent) and Schering Plough v. FTC (FTC unable to overcome 11th Circuit’s Valley Drug decision). He concludes that “restrictive liability norms” developed in private litigation may “dull[] the effectiveness of public litigation for reasons that have nothing to do with public enforcement.”

This wouldn’t be a book review if I always said Crane was right, and there are some arguments here that trouble me. Crane proposes that the Justice Department might “make a formal filing at the outset of the litigation declaring that the case would have no collateral estoppel or evidentiary consequences” to avoid judges’ concerns for follow-on actions. Others have expressed concern with the hammer of follow-on private enforcement; arguments to this effect were successfully deployed by defendants and amici in the F. Hoffmann-LaRoche v. Empagran litigation. But is Crane’s approach workable? I wonder in what case the Justice Department would not make such a filing? Crane’s approach sounds like a de facto repeal of the collateral estoppel effect. And it ignores that the collateral estoppel effect is itself a powerful tool incentivizing settlements.

Crane also looks to FTC antitrust rule-making as a means of releasing the FTC from restrictive rules developed in private litigation. He twice repeats the claim, which I have seen elsewhere, that the FTC has only once issue an antitrust rule, and that in 1968. The argument is no longer true. The FTC’s petroleum market manipulation rule, promulgated in November 2009, though couched in terms of fraud, should be considered an “antitrust rule” for at least two reasons. The first is institutionalist (this is a book about institutions, after all): the rulemaking involved enforcers from the FTC Bureau of Competition, which enforces antitrust laws against conduct in oil and gas markets. The second is substantive: though the rule prohibits fraud and deceit, it does so in wholesale and not retail markets. The enforcement guide published concurrently with the final rule clarifies that one-on-one transactions are not the Commission’s target. Rather, it is broader dissemination of misinformation that undermines the integrity of the market. The conduct within the Commission’s sights sounds very much like that at issue in a classic antitrust authority, US v. Socony-Vacuum Oil Co.

One might argue my definition of “antitrust” is too broad. (The FTC might agree with such an argument -- it noted, in its Revised Notice of Proposed Rulemaking, 74 Fed. Reg. 18304, 18310 n.63, that it did not “intend to focus on anti-competitive conduct . . . which remains the province of antitrust law.”) There is work to be done in defining the distinction between consumer protection and antitrust, but outlawing conduct in upstream markets with market-wide effects smacks thoroughly of antitrust rule-making. That is more so because this market-manipulation rule sounds very much like the legislative role Crane proposes the FTC undertake -- further defining the “undeniably indefinite” word “unfair”; exploiting the FTC’s strong position “when challenging market power created by fraud and deception”; and stating rules for commercial practices where courts lack a great body of precedent. My complaint regarding this possible omission does not undermine Crane’s message in Institutional Structure. It does suggest the step to FTC antitrust legislation is shorter than he suggests.

I’ll throw out two more complaints about things that are almost too petty to mention, but I did find them distracting. (If you do not share my pet peeves, you may be exempt from such distraction!) First, Crane sure uses the word “norm” frequently, and does so when I think either “rule” or “law” might be a better fit. Second -- and this one isn’t Crane’s fault -- there is a painfully large number of editorial errors throughout the book. I saw two instances of “antitrusttrusters,” and actually found myself wondering if this was a novel institutionalist term to which I was not privy; missuses of plurals and tenses; redundancies; and omissions from the index. Again, Crane is not at fault (and please don’t search my journal articles for comparable errors), but one might think a press of the prestige of Oxford would take one more pass with a red pen before printing.

In sum, this book is endlessly fascinating, educational, and for those in the academic and policy realms, even useful. Crane is leading the charge toward a new theory of antitrust that may permit or require the revisiting of substantive legal rules in light of new understandings of their application in the real world of enforcement. In so doing he may be establishing himself as a leader of a new academic antitrust movement that also has tremendous practical consequences. If it means more writing in this vein, I hope so.

September 19, 2011 | Permalink | Comments (0) | TrackBack (0)