Wednesday, December 19, 2007

The Anticompetitive Effects of Unenforced Invalid Patents

Posted by D. Daniel Sokol

Cleslie_web Christopher Leslie of Chicago Kent Law School addresses The Anticompetitive Effects of Unenforced Invalid Patents.

ABSTRACT: Antitrust law and patent law assume that an invalid patent cannot distort competition unless the patentee enforces the patent by initiating infringement litigation or explicitly threatening to do so. The Article argues that invalid patents can destroy competition - even without such enforcement efforts - by creating legitimate fears of litigation, increasing the costs of market entry, delaying market entry, scaring away competitors' customers and business partners, and deterring research. Despite the anticompetitive risks posed by invalid patents, neither patent law nor antitrust law does an effective job of ridding the marketplace of invalid patents. In particular, because antitrust law currently holds that a monopolist does not violate the Sherman Act unless it actually enforces its invalid patent, a monopolist with an invalid patent can improperly exclude competitors while not exposing itself to antitrust liability. Finally, the Article argues that eliminating the enforcement requirement from antitrust claims based on invalid patents would better accomplish the goals of both antitrust law and the patent system.

December 19, 2007 | Permalink | Comments (0) | TrackBack (0)

EU Competition Policy: Some Real Case Applications

Posted by D. Daniel Sokol

Portuguese PhD student João Oom de Sousa Tovar Jalles (New University of Lisbon Department of Economics) has posted EU Competition Policy: Some Real Case Applications in which he examines the Microsoft-WMP and Volvo-Scania cases.

ABSTRACT: European Union Antitrust Laws have been successfully applied to anti-competitive behavior, which can take place abroad, but have an effect within the EU. Under Antitrust Laws, not only abuse of dominant position practices but also mergers that restrain competition are regarded as illegal and subject to severe remedies. This paper accesses both Microsoft-WMP and Volvo-Scania cases in the light of the EU Competition Policy and identifies the circumstances involved, final decisions made as well as the suggested remedies and the consequences from the consumers' perspective. The issues considered are per se controversial and these are clear examples of the long path to go through, in order to make the competition law regime uniformly applicable in all member states. The lack of international consensus on competition law and enforcement requires huge efforts in co-operation between countries and organizations, because in combination with economic liberalization, nations have come to recognize competition as a powerful instrument for stimulating innovation and economic growth. This paper focus on the past, i.e., already assessed anticompetitive cases; the present - the current EU Competition Policy rules - and finally on the future of Antitrust jurisdiction, in which part I will briefly describe the major actual concerns in the long course towards a common and homogeneously valid system of International Competition Policy.

December 19, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2007

Summary of Second Meeting on Private Antitrust Enforcement

Posted by D. Daniel Sokol

AAI and the State Center for Antitrust and Consumer Protection jointly sponsored a second meeting of a group of State Assistant Attorneys General, private antitrust trial lawyers, and academics to discuss issues of mutual concern involving private/state antitrust enforcement. The meeting summary can be found here.

December 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Licensing Commitments in Standard Setting Organizations

Posted by D. Daniel Sokol

Standard setting and antitrust remains a hot topic. Indeed, today there is an ABA Antitrust Section brownbag on Standard-Setting in the US: What's at Stake in the Rambus Case?  Adding to the academic literature on this topic are François Lévêque (professor of law and economics at the Ecole des mines de Paris) and Yann Ménière (research fellow at Cerna, Ecole Nationale des mines de Paris) with their paper Licensing Commitments in Standard Setting Organizations.

ABSTRACT: This paper compares three possible procedures for the licensing of patents reading on a technology standard. In the first scenario the licensor fixes its royalties once manufacturers have entered the market for standard compliant products. In two alternative scenarios the licensor commits on a royalty level or on a royalty cap before manufacturers enter that market. The licensor's choice between the three procedures depends on a trade-off between the uncertainty it faces on the expected demand for standard compliant products, and a hold-up effect that deters the entry of manufacturers when royalties are set ex post. We show that the first scenario is always dominated by the royalty cap and can be dominated by the commitment on a royalty level. We derive several policy implications for standard setting policies and their antitrust treatment.

December 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Assessing the Competitive Effects of a Merger: Empirical Analysis of Price Differences Across Markets and Natural Experiments

Posted by D. Daniel Sokol

In an article by Gregory K. Leonard and Lawrence Wu in NERA's fall issue of Antitrust Insights provides a great overview for non-economists to understand the econometric work behind cases like Whole Foods.

ABSTRACT: The techniques used by the economist expert witnesses in FTC v. Whole Foods Market, Inc.1 illustrate two approaches that exemplify modern empirical merger analysis. One approach focuses on the relationship between price and the number and identities of competitors. The second approach analyzes historical events or “natural experiments” in the marketplace, such as the responses of incumbent firms to new entry. In our discussion of both approaches, we address three key issues: (1) What antitrust question does each technique address, specifically in the context of assessing the likely competitive effects of a merger? (2) What assumptions and data are needed to implement each technique? And (3) What key questions should counsel ask economists to evaluate the appropriateness
of these types of studies?

Download antitrust_insights_fall_2007.pdf

December 18, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, December 17, 2007

Implications of Unprofitable Horizontal Mergers: A Re-Interpretation of the Farrell-Shapiro-Framework

Posted by D. Daniel Sokol

Oliver Budzinski and Jürgen-Peter Kretschmer of the University of Marburg Department of Economics discuss Implications of Unprofitable Horizontal Mergers: A Re-Interpretation of the Farrell-Shapiro-Framework.

ABSTRACT: We demonstrate that the popular Farrell-Shapiro-Framework (FSF) for the analysis of mergers in oligopolies relies regarding its policy conclusions sensitively on the assumption that rational agents will only propose privately profitable mergers. If this assumption held, a positive external effect of a proposed merger would represent a sufficient condition to allow the merger. However, the empirical picture on mergers and acquisitions reveals a significant share of unprofitable mergers and economic theory, moreover, demonstrates that privately unprofitable mergers can be the result of rational action. Therefore, we extend the FSF by explicitly allowing for unprofitable mergers to occur with some frequency. This exerts a considerable impact on merger policy conclusions: while several insights of the original FSF are corroborated (f.i. efficiency defence), a positive external effect does not represent a sufficient condition for the allowance of a merger anymore. Applying such a rule would cause a considerable amount of false positives. In addition, we conclude that the FSF need to be explicitly complemented by a freedom of competition principle in order to make it workable as a basis for an economics-based merger policy.

December 17, 2007 | Permalink | Comments (0) | TrackBack (0)

What I Have Learned About Antitrust Law and Economics and How I Try to Apply it to my Daughter's Toilet Training

Posted by D. Daniel Sokol

Since June, my eldest daughter has been in the process of learning to use the toilet.  She still uses diapers and around half of the times tells us beforehand if she has to poop.  As for peeing, other than overnight, she informs us about her need to go perhaps three times a day.  We want her to be fully toilet trained (not counting at night) hopefully within the next month or two. 

My wife and I are trying a new approach based on incentives.  If antitrust law and economics teaches anything about behavior of firms and individuals, it is that incentives help to shape behavior.  We are trying a new set of rewards this week.  As we experiment a few hours a day with her wearing underwear (which have her favorite Disney characters on them) instead of diapers, we made the following economic calculation- a pack of size 4 pull-ups costs us us $80 a month if we buy the generic diapers in bulk at Sam's Club.  Our thought is to take our daughter to Toys R Us today and walk her through a few of the isles and tell her we will buy her anything she wants (up to $150) since we will be making considerable savings after the initial present from no longer having to purchase diapers (or refills for the diaper genie which are $6.99 each).  Any sense of whether or not this will work?

December 17, 2007 | Permalink | Comments (3) | TrackBack (0)

The Law of Group Boycotts and Related Economic Considerations

Posted by D. Daniel Sokol

Harrison My colleague as of this summer when I join the University of Florida law faculty, Jeff Harrison, has written an insightful article titled The Law of Group Boycotts and Related Economic Considerations.

ABSTRACT: One of the more confusing areas of antitrust law is that dealing with group boycotts. The term has been applied to at least three distinct practices. This draft chapter of a forthcoming book focuses on regulatory and classic boycotts. It assesses them from the perspective of the economics of intellectual property. The conclusion is that regulatory boycotts are most appropriately viewed as potential ancillary restraints while classic boycotts are best teated as per se unlawful.

December 17, 2007 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 16, 2007

Alive and Kicking: Collusion Theories in Merger Analysis at the Federal Trade Commission

Posted by D. Daniel Sokol

Malcolm Coate of the FTC's Bureau of economics has written an important paper that tracks and analyzes all review of 75 merger decisions filed between 1993 and 2005 to identify the conditions that are found to increase the likelihood of a collusion finding is his paper Alive and Kicking: Collusion Theories in Merger Analysis at the Federal Trade Commission.

ABSTRACT: This paper explores the use of collusion theories in merger analysis at the Federal Trade Commission. The 1992 Merger Guidelines focuses on unilateral effect, relegating collusion analysis to a second tier theory. Both structural and behavioral conditions conducive to establishing or maintaining an arrangement to restrict competition are listed in the Guidelines. This paper undertakes a systematic review of 75 merger decisions filed between 1993 and 2005 to identify the conditions that are found to increase the likelihood of a collusion finding. Standard structural concerns are readily identified, while behavioral factors defy characterization. Instead, the analysis seems to develop a Folk Theorem in which structural concerns are validated with some type of performance evidence. Further work finds allegations of maverick conduct add little to the analysis, while the Bush administration appears slightly more likely to identify a collusion problem than the Clinton regulators.

December 16, 2007 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 15, 2007

The SSNIP Test and Market Definition with the Aggregate Diversion Ratio: A Reply to Katz and Shapiro

Posted by D. Daniel Sokol

Øystein Daljord (Norwegian Competition Authority), Lars Sørgard (Norwegian School of Economics and Business Administration), and Øyvind Thomassen (University of Oxford Economics) have written The SSNIP Test and Market Definition with the Aggregate Diversion Ratio: A reply to Katz and Shapiro.

ABSTRACT: The Hypothetical Monopolist or Small but Significant Non-transitory Increase in Prices (SSNIP) test defines the relevant market by determining whether a given increase in product prices would be profitable for a monopolist in the candidate market. The U.S. Merger Guidelines do not specify whether the SSNIP test should be performed with an increase in one price, some prices, or all prices in the candidate market. We argue that this should depend on characteristics of the market: if there are asymmetries between products, increasing only one price might be the best way to identify competitive constraints. Katz and Shapiro derive a one-price test criterion of critical loss in terms of the aggregate diversion ratio. Unfortunately, the derivation is incorrect. We show what the correct criterion should be.

December 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Vertical Relationships and Competition in Retail Gasoline Markets: Comment

Posted by D. Daniel Sokol

Retail gasoline is one of the most interesting sectors for the public.  In an interesting working paper Christopher Taylor, Paul Zimmerman and Nicholas Kreisle of the FTC's Bureau of Economics discuss Vertical Relationships and Competition in Retail Gasoline Markets: Comment.

ABSTRACT: In a paper in the March 2004 AER, Justine Hastings concludes that the acquisition of an independent gasoline retailer, Thrifty, by a vertically integrated firm, ARCO, is associated with sizable price increases at competing stations. To better understand the novel mechanism to which she attributes this effect - which combines vertical integration and rebranding - we attempted but ultimately failed to reproduce the results using alternative data. In addition, we show that the welfare effects of the transaction are ambiguous in the theoretical model which she posits as underlying the empirical results.

December 15, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, December 14, 2007

Consumer Coordination in the Small and Large: Implications in Antitrust Markets With Network Effects

Posted by D. Daniel Sokol

Spulber_picDaniel Spulber of Northwestern's Kellog School of Management discusses Consumer Coordination in the Small and Large: Implications in Antitrust Markets With Network Effects in the latest issue of the Journal of Competition Law and Economics.

ABSTRACT: Network effects occur in markets when consumers receive mutual benefits from consuming the same good. Markets with network effects that have generated particular policy concerns include the information and communications technology and electronics (ICTE) industries. Many economists and legal scholars argue that the presence of network effects creates a form of market failure known as "network externalities" and recommend new forms of antitrust and regulation targeted at particular firms in the ICTE industries. The debate over network effects is likely to have major consequences for these industries, with effects comparable to landmark antitrust cases involving IBM, AT&T, and Microsoft. This article provides a comprehensive examination of network effects that addresses the legal, economic, and technological basis for this phenomenon. The article develops a general framework for examining consumer coordination in markets with network effects. The discussion demonstrates that consumers can coordinate their consumption decisions to obtain the benefits of network effects. When there are small numbers of consumers, as Coase argued, low transaction costs allow the formation of informal agreements and formal contracts that are economically efficient. When there are large numbers of consumers, the market offers many mechanisms of spontaneous order in the sense of Hayek. The article refers to Coasian negotiation as "coordination in the small," and to Hayekian spontaneous order as "coordination in the large." The discussion demonstrates that consumer coordination, both in the small and in the large, results in efficient consumption of network goods and adoption of new technologies. Market institutions are fully capable of addressing network effects. Antitrust policy based on correcting market failure due to "network externalities" is likely to impact both competition and innovation adversely. Network effects do not provide a sound basis for antitrust policy.

December 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Making Sense of Nonsense: Intellectual Property, Antitrust, and Market Power

Posted by D. Daniel Sokol

Katz_ariel Ariel Katz of the University of Toronto Law School offers a fascinating analysis of the intersection of antitrust and IP in his article Making Sense of Nonsense: Intellectual Property, Antitrust, and Market Power.

ABSTRACT: While the economic rationale for intellectual property ("IP") rights rests on the concepts of "monopoly" or "market power," the U.S. Supreme Court, in Illinois Tool Works v. Independent Ink, has recently joined a "virtual consensus" among antitrust commentators believing that no presumption of market power should exist in antitrust cases involving IP. This Article critically analyzes this consensus, and clarifies the relationship between IP and market power, shows why IP rights often do confer market power in the antitrust sense, but also explains why acknowledging this should not necessarily lead to oversized application of antitrust law to IP.

December 14, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 13, 2007

Towards a European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door?

Posted by D. Daniel Sokol

Francisco Marcos Fernández and Albert Sánchez Graells bring us Towards a European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door?

ABSTRACT: Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU - building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved.

Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement-based on claims for harm inflicted as a result of the anticompetitive behaviour, which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de facto harmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper - foreseen to be adopted around the turn of the year 2007.

At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a backdoor harmonisation of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.

December 13, 2007 | Permalink | Comments (0) | TrackBack (0)

SSRN Top 10 Most Downloaded Antitrust Law Scholars in the Past Year

Posted by D. Daniel Sokol

I include only people affiliated with law schools who regularly write antitrust/competition related articles.  After the top 14, there is a significant drop off.

1. Mark Lemley – Stanford – 9,465 hits
2. Greg Sidak – Georgetown– 6,394 hits
3. Damien Geradin  – Tilburg – 4,166 hits
4. Richard Posner  – University of Chicago – 2,377 hits
5. David Evans – University College London – 1,844
6. Johnathan Baker – American University – 1,580 hits
7. Bruce Kobayashi – George Mason – 1,449 hits
8. Keith Hylton – Boston University -  1,346 hits
9. Spencer Waller - Chicago Loyola - 1,340 hits
10. Randy Picker – University of Chicago - 1,193 hits
11. Phil Weiser – Colorado – 1,016 hits
12. Daniel Sokol – Missouri – 996 hits
13. Herb Hovenkamp – Iowa – 938 hits
14. Josh Wright – George Mason – 913 hits

December 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Market Dominance and Behavior-Based Pricing Under Horizontal and Vertical Differentiation

Posted by D. Daniel Sokol

Thomas Gehrig of the University of Freiburg Department - of Economics, Oz Shy of University of Haifa - Department of Economics and Rune Stenbacka of the Swedish School of Economics and Business Administration ponder Market Dominance and Behavior-Based Pricing Under Horizontal and Vertical Differentiation.

ABSTRACT: We evaluate behavior-based price discrimination from an antitrust perspective by focusing on an industry with inherited market domminance. Under horizontal differentiation behavior-based pricing does not by itself lead to persistence of dominance unless the dominant firm is protected by significantly higher switching costs than its small rival. This result continues to hold even if the dominant firm can use behavior-based pricing to compete against an entrant with no access to consumers' purchase histories. Under vertical differentiation behavior-based pricing enhances the dominance of the high-quality seller and, hence, consumer welfare.

December 13, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 12, 2007

Global Antitrust Prosecutions of International Cartels: Focus on Asia

Posted by D. Daniel Sokol

Jconnor Cartel maven John Connor of  Purdue's Department of Agricultural Economics has some new and important empirical work on cartels in Asia titled  Global Antitrust Prosecutions of International Cartels: Focus on Asia.

ABSTRACT: International cartelists today face antitrust investigations and possible fines in a score of national and supranational jurisdictions. This paper aims at providing quantitative information about the size and impacts of international cartel activity in Asia and uses a sample of modern private cartels to evaluate the relative effectiveness of three prominent Asian antitrust authorities. The sample consists of legal and economic information on 377 international cartels discovered in Asia and the rest of the world during 1990-2007.

The need for assertive anti-cartel enforcement in Asia is demonstrated by the large affected commerce and economic injuries of known international cartels. Affected sales of the 27 Asian-region cartels exceeded US$155 billion. In addition, 86 global cartels also fixed prices in Asia. Affected sales in Asia from discovered cartels both types totals $300 to $400 billion. The overcharges Asian consumers were at least $94 billion in 1990-2007.

While more than US$35 billion in penalties has been imposed world wide, it is doubtful that such monetary sanctions can deter modern international cartels. The three with the most consistent legal responses to global cartels are the United States, Canada, and the EU. Yet, optimal cartel deterrence is frustrated by the failure of compensatory private suits to take hold outside of North America and the low fines in most Asian jurisdictions. Of the three selected jurisdictions, the Korean FTC has the best record of anti-cartel enforcement in Asia, but even the KFTC's surcharges are recouping less than 15% of damages. Without significant increases in cartel detection, in the levels of expected fines or civil penalties, or expansion of the standing of buyers to seek compensation, international price fixing will remain rational business conduct

December 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Leegin Creative Leather Products, Inc. v. PSKS, Inc.: The Strange Career of the Law of Resale Price Maintenance

Posted by D. Daniel Sokol

Lgragliasg Yet another entry into the analysis of Leegin comes from Lino Graglia of the University of Texas Law School titled Leegin Creative Leather Products, Inc. v. PSKS, Inc.: The Strange Career of the Law of Resale Price Maintenance.

ABSTRACT: The article tells the long, fascinating and sometimes hardly credible story of the law of resale price maintenance (RPM). The 1911 Dr. Miles decision, overruled by Leegin, was one of the oldest and most important in the history of antitrust in that it extended the coverage of the Sherman Act from competitor ("horizontal") to buyer-seller ("vertical") agreements, holding manufacturer-dealer RPM agreements illegal per se. Eight years later the Court in effect overruled Dr. Miles in the Colgate case (at the urging of defendant's counsel, former Justice Charles Evan Hughes, the author of Dr. Miles) by making a non-existent distinction between express and tacit agreements. It then effectively overruled Colgate in turn by ignoring the supposed distinction. In 1937 Congress negated Dr. Miles by authorizing the states to pass "fair trade" legislation permitting RPM, but in 1975 repealed the authorization, restoring Dr. Miles to full health. Two years later, Dr. Miles was again effectively overruled by the Court's adoption in the seminal Sylvania decision of the Chicago school of economics' skeptical view of antitrust and per se rules. It was further undermined, if possible, by the Court's revival of the Colgate doctrine and by making the necessary agreement hard to prove. The seemingly shocking Leegin decision, therefore, in fact merely made the overruling explicit. Justice Breyer, joined by Justices Stevens, Souter, and Ginsberg, vigorously dissented, apparently relying more on stare decisis than on the merits of Dr. Miles, a reliance much weakened by the Court's prior overruling of two cases on closely related issues. The paper also briefly discusses the very limited present day relevance and usefulness of the traditional per se/rule of reason distinction, and debunks the Court's conventional assertion that it adopts a per se rule only after long experience with the restraint. The history of the law of RPM illustrates, at its end and at its beginning that ideology can have more to do than economics or logic with the making of antitrust law, paralleling its role in constitutional law. Leegin also makes clear that the newly reconstituted Court remains committed to the Chicago school view of antitrust and has a flexible approach to stare decisis.

December 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 11, 2007

Should Innovation Rationalize Supra-Competitive Prices? A Skeptical Speculation

Posted by D. Daniel Sokol

Brennan110 Tim Brennan of the University of Maryland-Baltimore Department of Public Policy offers a thought provoking paper Should Innovation Rationalize Supra-Competitive Prices? A Skeptical Speculation.

ABSTRACT: A recent criticism of competition policy is that antitrust authorities shouldn't focus their concern on prices, since the welfare losses of prices are trivial compared to longer run innovation effects. At minimum, there's a problematic trade-off between so-called static price and dynamic efficiencies. On this view, if there is a credible argument supporting the idea that collusion or merger increases incentives to innovate, one should not worry about price. We entertain here the hypothesis that antitrust should not worry about innovation, just as it should not worry about effects on other markets. Antitrust takes place in the shadow of patent laws, which presumably have evolved to provide efficient innovation incentives when markets are competitive, as most are. To weaken antitrust enforcement presumes that patent law is not set correctly. A better remedy would be to adjust patent law and other tools for encouraging innovation, e.g., tax credits or prizes. To distort the application of antitrust law to fix shortcomings in patent law provides a correction only if there is a potential antitrust violation (e.g., an otherwise anticompetitive merger) to ignore. Sectors with no antitrust "events" would remain uncorrected.

December 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Technocracy and Antitrust

Posted by D. Daniel Sokol

Thumb_faculty_crane_danjpg One of the more thoughtful pieces this year is Technocracy and Antitrust by Dan Crane (Cardozo Law, NYU Law visiting).

ABSTRACT: U.S. antitrust enforcement has declined in political salience over the past few decades even while levels of public antitrust enforcement and funding for the antitrust agencies have remained generally consistent with those of earlier periods. Antitrust has become a technocratic discipline in the minds of the political elite, delegated by Presidents and Congress to specialists in the Justice Department and Federal Trade Commission. Nonetheless, antitrust retains influential populist institutions including the civil and criminal jury, an adjudicatory system focused on binary determinations about guilt or innocence, and a Federal Trade Commission that is constrained from exercising a norm-creation role. The technocratic shift begun by the political elite could be furthered by a variety of reforms including separating cartel enforcement from other antitrust enforcement, moving from adjudication to administration, and granting the FTC norm-creation powers. Technocratic reforms are justified by three key attributes of modern antitrust - consensus on antitrust goals, resolution of the most divisive ideological questions, and the absence of a need to balance the interests of identified groups.

December 11, 2007 | Permalink | Comments (0) | TrackBack (0)