Antitrust & Competition Policy Blog

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

A Member of the Law Professor Blogs Network

Tuesday, October 11, 2011

Net Neutrality Regulation and the Evolution of the Internet Economy

Posted by D. Daniel Sokol

David S. Evans (Global Economics Group, Univ. of Chicago) addresses Net Neutrality Regulation and the Evolution of the Internet Economy.

ABSTRACT: There have been a number of calls for the government to regulate internet businesses. The most prominent of these involves "net neutrality" regulation of pricing by Internet Service Providers (ISPs). In a short space of time the net neutrality debate has resulted in a voluminous and heated literature. More recently there has been demand for "search neutrality" regulation of the results displayed by search engines.

This paper makes several largely unrelated observations that policymakers could find helpful in considering the need for regulation and entertaining some of the proposals that have been offered. It presents a skeptical view that we know enough to be sure that there are market failures that should be corrected or that policymakers could know enough about the present and future of the internet economy to devise regulations that would improve social welfare.

October 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, October 10, 2011

Anti-cartel Enforcement in Brazil: Lessons From the Recent Past and an Exercise to Look Forward

Posted by D. Daniel Sokol

Barbara Rosenberg & Jose Carlos da Matta Berardo (Barbosa, Mussnich & Aragao) discuss Anti-cartel Enforcement in Brazil: Lessons From the Recent Past and an Exercise to Look Forward.

ABSTRACT: During the last decade Brazil, as well as few other Latin American countries, have taken great steps to improve the enforcement of their Competition Laws, and cartel prosecution should surely be counted as one of the most relevant improvements so far. Especially in Brazil, the numbers of cartel investigations and convictions have greatly risen, and the Brazilian authorities should be praised, beyond all, for their great work increasing the topic's public awareness of the seriousness of cartel infringement. Indeed, as the economy starts to blossom, the Government's efforts to detect and punish cartels should more than pay off in the next years.

However, all these accomplishments do not mean that there is not much yet to be done. Practitioners would not need much time to state a number of problems with cartel enforcement in Brazil, and most-if not all-of these problems are likely to derive from barely staffed authorities, troubled procedural rules, or lack of consistent precedents regarding substantive law.

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

Sailing a Sea of Doubt: A Critique of the Rule of Reason in U.S. Antitrust Law

Posted by D. Daniel Sokol

Jesse W. Markham, University of San Francisco School of Law has written on Sailing a Sea of Doubt: A Critique of the Rule of Reason in U.S. Antitrust Law.

ABSTRACT: Competitive restraints challenged under Section 1 of the Sherman Act are evaluated under either the rule of reason or, for a small and diminishing group of restraints, under per se rules. The role for per se rules has diminished in recent years as courts have retreated from them out of concern that their rigid application can condemn desirable competitive conduct. Now, the rule of reason is the default mode of analysis applicable to nearly all categories of alleged competitive restraints. During the same period in which the Supreme Court expanded the reach of the rule of reason, it also rendered it devoid of the little guiding content that it previously had. Thus, one hundred years after the rule of reason was first announced in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911), the rule has been rendered essentially devoid of any meaningful content.

This article traces the disintegration of the rule of reason and argues for a restoration of categorical modes of analysis for claims brought under Section 1. From its inception, the rule of reason has called for a dangerously open-ended inquiry. However, in an earlier era, certain specific and familiar categories of conduct were condemned per se, which gave Section 1 a region of clarity. In California Dental Ass’n v. Federal Trade Comm’n, 526 U.S. 756, 781 (1999), the Supreme Court obliterated the line between per se and rule of reason analysis, and abandoned categorical antitrust analysis almost entirely. The overall result is that the rule of reason now governs nearly all Section 1 claims, but its meaning is substantially less clear now than it was 100 years ago. A set of presumptions about the lawfulness of restraints is needed to guide courts and businesses in the evaluation of restraints under Section 1.

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

Screening for Collective Dominance: The Case of the European Mobile Telecommunications

Posted by D. Daniel Sokol

Veit Boeckers, Justus Haucap, Heinrich-Heine Universitaet Duesseldorf - Department of Economics, German Institute for Economic Research (DIW Berlin) and Ulrich Heimeshoff, Heinrich-Heine Universitaet Duesseldorf analyze Screening for Collective Dominance: The Case of the European Mobile Telecommunications.

ABSTRACT: Drawing both from earlier policy discussions and more recent empirical findings, this paper explores the functioning of the European Competition Network. It is structured in two parts: (i) part one aims first to identify the various driving forces that have prompted the switch towards a network model in the enforcement (and design) of EU antitrust policy (section I.A); (ii) part two then endeavours to shape the institutional contours of the ECN and to provide an account of the rules governing its operation (section I.B). In turn, part two seeks to (re-)examine in depth two major challenges brought about by the decentralization process, which the ECN is deemed to facilitate, namely the parallel enforcement of EU antitrust principles by several NCAs (section II.A) and the management of the cooperation mechanisms relied upon in cross-border investigations (section II.B).

Indeed, beyond a systematic presentation of its purpose and means, this paper aims to confront three lasting phenomena affecting the ECN’s operation, namely: (i) the remaining fuzziness of the rules governing some important ECN processes, which questions the limits of experimentalism in the application of important economic policies; (ii) the scope of the territoriality principle in a system where local authorities participate in the application of “federal” rules by means of their domestic administrative enforcement system; and (iii) the significance of the enduring diversity of national procedural frameworks. Those three aspects, it is submitted, condition the perfection of the ECN’s operation and the sustainability of the decentralized EU antitrust enforcement system. They echo and substantiate in the meantime earlier concerns formulated in terms of effectiveness, legal certainty and due process.

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

IP Misuse and Innovation Harm

Posted by D. Daniel Sokol

Thomas F. Cotter, University of Minnesota Law School discusses IP Misuse and Innovation Harm.

ABSTRACT: "This essay, a short response to Christina Bohannan’s important recent article, IP Misuse as Foreclosure, 96 Iowa Law Review 475 (2011), expresses agreement with Professor Bohannan’s conclusions that merely equating misuse with certain violations of substantive antitrust law is probably unwise; that the “beyond the scope” rationale nevertheless is vague; and that misuse doctrine might provide a useful tool for penalizing assertions of IP rights (principally copyright rights) that would foreclose access to the public domain and thus impinge upon free speech. The essay nevertheless expresses caution over Professor Bohannan’s call for courts to apply misuse doctrine to combat harms to competition and innovation - what I refer to in the essay as “innovation harm” - in a manner that would depart from standard antitrust law, at least to the extent that she contemplates fairly widespread use of the doctrine in this fashion".

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

OECD publishes “Work in progress” papers on competition

Posted by D. Daniel Sokol

The OECD has published “Work in progress” papers on competition.  In a press release, the OECD states:

The OECD today put up a new web page, presenting papers by its own staff and external experts featuring in recent and forthcoming discussions on competition at the OECD’s headquarters in Paris.

This “work in progress” web page includes papers on “Excessive prices”, and will also include papers on “Competition and the Digital Economy” as they become available this week.  Both topics will be discussed at the meeting of the Competition Committee in Paris in the week beginning 17th October.

The work in progress page is available at:,3746,en_2649_37463_48742443_1_1_1_37463,00.html

This new web page also contains papers from recent discussions that have not yet been published as final compilations, including papers on “Network Neutrality” from June of this year, and papers on ”The quantification of harm in competition cases”, from February.

John Davies, Head of the OECD’s Competition Division, said:

“We wanted to make interesting papers public around the time of the discussion itself, without waiting for compilation of the final document.  So we have created a “work in progress” page that provides some of the background materials, from recent discussions and for forthcoming ones.  I hope that this approach will publicise the in-depth discussions on competition that Governments – usually represented by heads of competition agencies – hold here.  We provide a contact name for each topic, and we encourage people to get in touch with comments.”

Contributions by member countries and observers will not be published on this web page, but will be published as “Best Practice Roundtable” compilations of all of these materials, together with a summary of the discussion, published some months after the discussion has taken place.  Recently published topics include “Competition in ports”, the “Regulated conduct defence” in competition cases and “Emission permits and competition.”

Past Best Practice Roundtable compilations are available at:,3746,en_2649_37463_2474918_1_1_1_37463,00.html

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

'Grammaire' et Politique de Concurrence (Is There Anything in Common between Grammar and Competition Policy?)

Posted by D. Daniel Sokol

Paul Nihoul, Université Catholique de Louvain asks 'Grammaire' et Politique de Concurrence (Is There Anything in Common between Grammar and Competition Policy?).

ABSTRACT: In various publications, Noam Chomsky, a celebrated linguist, has demonstrated that languages can be analysed as structures where words, sentences and messages are generated by locutors applying specific generating rules.

It would appear that the same can be stated as regards arguments generated in discussion on antitrust and competition policies around the globe.

In this paper, I shed some light on the type of arguments that we can accept from locutors, for instances antitrust or competition authorities, in communications regarding the policies they seek to implement in that context.

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

Sunday, October 9, 2011

Welcome Bergen Center for Competition Law and Economics

Posted by D. Daniel Sokol

The study of competition has expanded in the past year in Europe with the new Bergen Center for Competition Law and Economics in Norway. The Center has already had a number of interesting events. It will also host this year's 9th annual ACE conference (Association for Competition Economists).

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