Friday, July 30, 2021

The Globalization of Antitrust: History and Prospects

The Globalization of Antitrust: History and Prospects

 

Alden F. Abbott

George Mason University - Mercatus Center

Abstract

The United States stood virtually alone when it enacted its first antitrust statute in 1890. Today, almost all nations have adopted competition laws (the term used in most other nations), and US antitrust agencies interact with foreign enforc-ers on a daily basis. This globalization of antitrust is becoming increasingly important to the economic welfare of many nations, because major businesses (in particular, massive digital platforms like Google and Facebook) face grow-ing antitrust scrutiny by multiple enforcement regimes worldwide. As such, the United States should take the lead in encouraging adoption of antitrust policies, here and abroad, that are conducive to economic growth and innovation. Anti-trust policies centered on promoting consumer welfare would be best suited to advancing these desirable aims. Thus, the United States should oppose recent efforts to turn antitrust into a regulatory system that seeks to advance many objectives beyond consumer welfare. American antitrust enforcers should also work with like-minded agencies—and within multilateral organizations such as the International Competition Network and the Organisation for Economic Co-operation and Development—to promote procedural fairness and the rule of law in antitrust enforcement.

July 30, 2021 | Permalink | Comments (0)

Thursday, July 29, 2021

Monopolistic Price Setting Behavior of it Firms

Monopolistic Price Setting Behavior of it Firms

 

Coen N. Teulings

University of Cambridge; Centre for Economic Policy Research (CEPR)

Ellen Van 't Klooster

Utrecht University

Abstract

De Loecker et al. (2020) have shown that markups of publicly traded firms have risen since 1980 in the US. They find that this rise cannot be attributed to a particular sector. Using the same data, this paper shows that the increase in markup is concentrated among IT firms. Firms can be classified as IT or non-IT based on industry codes, but this method ignores a number of IT firms outside specific IT industries, e.g. Amazon and Uber. We develop an alternative, firm-level classification method, by applying natural language processing (NLP) to the description of firms’ activities in Compustat. After classifying firms as IT and non-IT, we show that markups in the period since 1980 fall apart in two episodes. In the first, from 1980 until 1996, non-IT firms recovered from the fall of markups in the seventies. In the second episode, since 1996, markups of IT firms exploded from 46% in 1996 to 94% in 2017, while the markup of non-IT firms was largely stagnant.

July 29, 2021 | Permalink | Comments (0)

Wednesday, July 28, 2021

Competition, Firm Innovation, and Growth under Imperfect Technology Spillovers

Competition, Firm Innovation, and Growth under Imperfect Technology Spillovers

Karam Jo

Korea Development Institute (KDI)

Seula Kim

University of Maryland

 

Abstract

This paper studies the effect of competition on firm innovation by developing a discrete-time endogenous growth model where multi-product firms do two types of innovation subject to friction in technology spillovers. Firms improve their existing products through internal innovation while entering others' product markets through external innovation. We introduce novel friction termed imperfect technology spillovers, which refers to friction in learning others' technology in the process of external innovation. In contrast to existing models, this friction allows incumbent firms to defend themselves from competitors by building technological barriers through internal innovation. Using firm-level data from the U.S. Census Bureau integrated with firm-level patent data, we find regression results consistent with the model predictions. Our counterfactual analysis shows that rising competition leads incumbent firms to undertake (i) more (less) internal innovation for the products they have a (no) technological advantage in, and (ii) less external innovation. This compositional change in firm innovation affects overall innovation in the aggregate economy in different directions depending on the costs of external innovation. Specifically, the shift in innovation composition in response to rising competition decreases overall innovation in the U.S. while increasing that in an economy with high external innovation costs. These findings highlight that the change in innovation composition resulting from firms' strategic choices is an important margin to understand the heterogeneous effect of increasing competition on overall innovation across different countries.

July 28, 2021 | Permalink | Comments (0)

Tuesday, July 27, 2021

Cartels and Fines

Cartels and Fines

Research Handbook on Cartels, Peter Whelan (ed) (Edward Elgar Publishing, Forthcoming)

Florian Smuda

University of Applied Sciences Koblenz

Abstract

This chapter deals with cartel fines as sanctions to deter cartelization. The concept of cartel fines as a deterrent is based on the premise that a potential cartelist will refrain from joining a cartel if the expected fine will exceed or at least offset any cartel gains. Based on a simple formal framework it is shown that the optimal deterrent fine level – expressed as a fraction of the value of cartel affected sales – is approximated by the cartel overcharge rate divided by the probability of detection. Using a dataset that contains undertaking specific data for all cartel cases decided by the European Commission between 2007 and 2020, it is then analyzed to what extent the existing fining policy fulfills optimal deterrence. By comparing the imposed fines with optimal deterrent fines under different settings for the overcharge and detection rate, the simulation results reveal a noticeable deterrence gap. Accordingly, several alternative and complementing measures suggested in the law and economics literature are compiled with structural remedies being assessed as a particular promising approach to foster deterrence.

July 27, 2021 | Permalink | Comments (0)

Monday, July 26, 2021

Tech Antitrust Enforcement in the Americas Tuesday July 27, 10am PST/1pm EST

Tomorrow is our great event at USC Gould School of Law on Tech Enforcement in the Americas panel. Please register. 
 
Leading expert practitioners from Argentina, Brazil, Canada, Chile, Colombia, Mexico and Peru will discuss trends and developments in antitrust and competition
enforcement in the digital and technology sectors throughout the Americas.
 
USC Gould School of Law will be hosting a program Tech Antitrust Enforcement in the Americas, Tuesday July 27, 10am PST/1pm EST. We have amazing panelists including Caio Mario S. Pereira NetoMarcela MattiuzzoElisa KearneyJulie SolowayÁlvaro Vives MartensAlfonso Miranda Londoño, Fernando Carreno, Carlos Mena LabartheCarlos A. Patrón 
For Zoom webinar information, please RSVP to: AOpsRSVP@law.usc.edu
 

July 26, 2021 | Permalink | Comments (0)

48th Annual Conference on International Antitrust Law and Policy and Antitrust Economics Workshops

48th Annual Conference on International Antitrust Law
and Policy and Antitrust Economics Workshops
Location: Skadden Arps, One Manhattan West, New York, NY

 

Antitrust Economics Workshops + Networking Session with Heads of Authority
The workshop will feature economic experts, enforcers, and leading antitrust practitioners speaking on key topics.
 

Wednesday, September 29, 2021

9:00 a.m. – 12:30 p.m.
Breakfast and lunch provided.

First Panel: The Brattle Group
Second Panel: Charles River Associates
(more details to come)

48th Annual Conference on International Antitrust Law & Policy
Join antitrust agency heads and leading academics, practitioners and in-house counsel from around the globe for a live 3-day conference (also to be broadcast live for registered attendees)

Thursday – Friday, September 30 – October 1, 2021
Day 1 | 8:30 a.m. – 5:00 p.m., including lunch panel celebrating 20 years of the ICN
Day 2 | 8:30 a.m. – 3:30 p.m.
Breakfast and lunch provided both days.

Keynote Speakers:
Margrethe Vestager, Executive Vice-President, European Commission, Commissioner for Competition
Lina Khan, Chair, Federal Trade Commission (invited)
Andreas Mundt, Chair, ICN; President Bundeskartellant
Richard Powers, Acting Assistant Attorney General, Antitrust Division (invited)

Tentative Panel Topics:
“Will Regulation Take the Antitrust out of Antitrust?”
“Twenty Years of the ICN: We Were There at the Beginning” (lunch panel)
“’I’m Not Dead Yet:’ Policy and Analytical Challenges for Vertical Restraints—Foreclosure, Access and Even ‘Essential Facilities’”
“Navigating Global Mergers in a World of Disparate Policy and Enforcement: What are the Real Guidelines?”
“Merger Efficiencies and the Road Ahead: Where Do Labor, Dynamic Efficiencies and the Public Interest Fit In?”
“In-House Counsel Roundtable: Managing Compliance in a Whirlwind of Antitrust Enforcement and Regulation”
“Class Actions: An Emerging Global Divergence?”

Moderators and Panelists include:
Andrea Coscelli
Andreas Mundt
Isabelle de Silva
Olivier Guersent
Christine Wilson
Noah Philips
Bill Kovacic
Eleanor Fox
Daniel Francis
Scott Hemphill
Frédéric Jenny
Howard Shelanski
Renata Hesse
Alan Ryan (moderator)
Tim Muris
Robert Klotz (moderator)
Koren Wong-Ervin
Gabriella Muscolo
Joshua Soven (moderator)
John Davies
Bruce Hoffman
Peter Mucchetti
Cal Goldman (moderator)
Andrew Finch
Susan Ning
John Oxenham
Kirsten Webb
Karen Lent
John Roberti (moderator)
Ian Simmons
Scott Martin
Jack Pace

July 26, 2021 | Permalink | Comments (0)

What is an Abuse of a Dominant Position? Deconstructing the Prohibition and Categorising Practices

What is an Abuse of a Dominant Position? Deconstructing the Prohibition and Categorising Practices

 

Pablo Ibáñez Colomo

London School of Economics - Law Department

Abstract

This chapter considers the boundaries of the notion of abuse of dominance. It shows, first, that it is not possible to distinguish between inherently ‘improper’ and valid expressions of competition on the merits. Most practices can be plausibly explained on pro-competitive grounds and do not necessarily or invariably lead to anticompetitive effects. It explains, second, that the quest for an all-encompassing legal test has proved futile. Third, the chapter teases out the constituent elements of the notion of abuse and defines the fundamental criteria on the basis of which the main categories of potentially abusive conduct (such as tying, exclusive dealing or refusal to deal) can be distinguished. This exercise is useful to identify the tensions that arise in the case law and to make sense of some of the ongoing controversies surrounding the appropriate categorisation of practices (concerning, in particular, the appropriate treatment of product design and business models).

July 26, 2021 | Permalink | Comments (0)

Sunday, July 25, 2021

A Theoretical and Experimental Investigation into the Horizontal Effects of Late Payments

A Theoretical and Experimental Investigation into the Horizontal Effects of Late Payments

 

Matthew J. Walker

Durham University Business School

Kyle B. Hyndman

University of Texas at Dallas

Abstract

Motivated by payment terms observed in regulatory reporting data, we construct a signalling model to analyse how late payments affect market entry and price competition in business-to-business transactions. Buyers first signal a payment term to potential suppliers, either standard or extended. Suppliers then decide whether to incur a fixed and irreversible cost to enter into competition for the contract. After the seller and the winning bid is determined, the buyer chooses whether or not to honour the agreed payment term. We show theoretically that late payments feed into higher prices and reduced competition. Reneging on a standard payment term entails a penalty for the buyer. If this penalty is not set carefully, a welfare loss arises due to price spillover effects in the market. The effectiveness of the penalty is diluted when it accrues as interest to the creditor, relative to when it is collected by a third party. We provide experimental evidence that the probability of a timely payment responds to the institutional environment, that free-riding behaviour may emerge among weaker firms, and that extended payment terms reduce consumer surplus. Our findings have implications for the horizontal effects of supply chain payment practices and for the design of regulatory interventions to deter late payments.

July 25, 2021 | Permalink | Comments (0)

Call for Papers 9th Law and Economics Conference: Law and Economics of the Digital Transformation University of Lucerne April 8-9, 2022

Call for Papers: Law and Economics of the Digital Transformation

Lawmarket Ndls 2

Call for Papers

9th Law and Economics Conference:
Law and Economics of the Digital Transformation

University of Lucerne
April 8-9, 2022

Keynote Speakers

G. Marcus Cole, The Joseph A. Matson Dean and Professor of Law, Notre Dame Law School

Niva Elkin-Koren, Professor of Law, Tel-Aviv University Faculty of Law, and Faculty Associate at the Berkman Klein Center for Internet & Society, Harvard University

Conference: Law and Economics of the Digital Transformation

Digitization is the process of changing data from analogue to digital form. Digitalization refers to enabling or improving processes by using digital technologies and digitized data. Digital transformation, finally, is the transformation of the economy and society by Digitalization.

The aim of this conference is to analyze from a law and economics perspective – both theoretically and on the basis of concrete applications – some of the issues the digital transformation raises across the law. The contributions will be published in an edited volume.

Call for Papers Information

Relevant topics include data protection, blockchain technology, smart contracts, copyright, as well as e-government, e-voting, and much more, since ultimately, just about every area of law is affected by the ongoing digital transformation, from private law to public law to criminal law.

Proposal submissions are due by September 15, 2021. More information about the Call for Papers and how to submit a proposal can be found here.

Organizers

The Law and Economics Conference is organized by Prof. Dr. Klaus Mathis, University of Lucerne, in collaboration with Prof. Dr. Avishalom Tor, Notre Dame Law School and the Program on Law and Market Behavior.

July 25, 2021 | Permalink | Comments (0)

Friday, July 23, 2021

Antitrust Error Costs

Antitrust Error Costs

Herbert Hovenkamp

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London

Abstract

The idea that consideration of error costs should inform judgments about actions with uncertain consequences is well established. When we act on imperfect information, we consider not only the probability of an event, but also the expected costs of making an error. In 1984 Frank Easterbrook used this idea to rationalize an anti-enforcement bias in antitrust, reasoning that markets are likely to correct monopoly in a relatively short time while judicial errors are likely to persist. As a result, false positives (recognizing a problem when there is none) are more costly than false negatives. While the problem of error cost bias is not explicitly mentioned all that frequently in antitrust cases, its influence is broad and deep, guiding the formation of presumptions and burdens of proof.

The anti-enforcement bias in antitrust originated long before Easterbrook wrote, and was reflected in the work of George J. Stigler and Milton Friedman, mainly in the 1940s and 1950s. They had attempted to dismantle theories of imperfect competition in favor of models in which competition nearly always prevailed unless restrained by government action.

While the ideas underlying the error cost framework were relatively new ones in law schools, by the 1980s they were already in decline in industrial organization economics. Easterbrook was writing defensively. An empirical revolution in economics was already well engaged in a process that found imperfect competition models to be more testable, more dominant, and more useful for policy judgments. In the process, classical Marshall/Stigler models of perfect competition were all but abandoned as irrelevant.

This empirical work provides increasing evidence that United States antitrust policy, but particularly merger policy, took a significant wrong turn in the mid-eighties. Today the error cost framework exists mainly as a result of rent seeking by firms who stand to profit from the low output and high margin consequences of this antitrust anti-enforcement bias.

July 23, 2021 | Permalink | Comments (0)

Wednesday, July 21, 2021

The Welfare Effects of Dynamic Pricing: Evidence from Airline Markets

The Welfare Effects of Dynamic Pricing: Evidence from Airline Markets
Kevin R. Williams 

Abstract:

Airfares fluctuate due to demand shocks and intertemporal variation in willingness to pay. I estimate a model of dynamic airline pricing accounting for both sources of price adjustments using novel flight-level data. I use the model estimates to evaluate the welfare effects of dynamic airline pricing. Relative to uniform pricing, dynamic pricing benefits early-arriving, leisure consumers at the expense of late-arriving, business travelers. Although dynamic pricing ensures seat availability for business travelers, these consumers are then charged higher prices. When aggregated over markets, welfare is higher under dynamic pricing than under uniform pricing. The directionality of the welfare effect at the market level depends on whether dynamic price adjustments are mainly driven by demand shocks or by changes in the overall demand elasticity.

July 21, 2021 | Permalink | Comments (0)

Tuesday, July 20, 2021

U.S. Market Concentration and Import Competition

U.S. Market Concentration and Import Competition

 

33 Pages Posted: 14 May 2021

Mary Amiti

Federal Reserve Bank of New York

Sebastian Heise

Federal Reserve Bank of New York

Abstract

A rapidly growing literature has shown that market concentration among domestic firms has increased in the U.S. over the last three decades. Using confidential census data for the manufacturing sector, we show that typical measures of concentration, once adjusted for sales by foreign exporters, actually stayed constant between 1992 and 2012. We reconcile these findings by linking part of the increase in domestic concentration to import competition. Although concentration among U.S.-based firms rose, the growth of foreign firms, mostly at the bottom of the sales distribution, counteracted this increase. We find that higher import competition caused a decline in the market shares of the top-20 U.S. firms.

July 20, 2021 | Permalink | Comments (0)

Friday, July 16, 2021

Anti-Competitive Effects of Partial Cross-Ownership: Experimental Evidence

Anti-Competitive Effects of Partial Cross-Ownership: Experimental Evidence

Wasilios Hariskos

University of Erfurt

Manfred Königstein

University of Erfurt

Konstantinos G. Papadopoulos

School of Economics, Aristotle University of Thessaloniki

Abstract

In theory, partial cross-ownership affects product prices and consumer welfare negatively, but empirical evidence is highly controversial. For competition policy it is important whether such effects are substantial enough to cause action. We report a lab experiment on a homogeneous duopoly market with symmetric passive crossownership in which the degree of cross-ownership varies between treatments (LOW vs HIGH). We argue that the observed negative effects are substantial enough to be considered problematic in real markets.

July 16, 2021 | Permalink | Comments (0)

Thursday, July 15, 2021

On Sellers' Collusion in E-Commerce Marketplaces

On Sellers' Collusion in E-Commerce Marketplaces

Michele Bisceglia

University of Bergamo - Department of Management, Economics and Quantitative Methods; University of Toulouse 1 - Toulouse School of Economics (TSE)

Abstract

Motivated by a recent competition policy debate on retailers' collusion in online marketplaces, this paper studies a simple model to shed light on the competitive and welfare effects of this conduct. I find that, when retailers sell their products through a monopolistic e-commerce platform, consumers are not necessarily harmed by their collusive behaviour. Specifically, if the platform adopts the agency model and is vertically integrated (i.e., sells a private label in competition with third-party sellers), a cartel between third-party sellers induces it to charge them lower fees and to set a lower price for its private label. As a consequence, when products are sufficiently homogeneous, also the cartel members charge lower prices compared to the non-cooperative equilibrium, and collusion benefits consumers and increases total welfare. Notably, these results hold even though the platform has all the bargaining power vis-à-vis (competing or colluding) third-party sellers, and they collude explicitly.

July 15, 2021 | Permalink | Comments (0)

Wednesday, July 14, 2021

Enforcing copyright through antitrust? The strange case of news publishers against digital platforms

The emergence of the multi-sided platform business model has had a profound impact on the news publishing industry. By acting as gatekeepers to news traffic, large online platforms appear to be unavoidable trading partners for news businesses and may exert substantial bargaining power in their dealings. Concerns have been raised that this bargaining power imbalance may threaten the viability of publishers’ businesses. Notably, digital infomediaries are accused of capturing a huge share of the advertising revenue by free-riding on the investments made in producing news content. Moreover, by affecting the monetization of news, the dominance of some online platforms is deemed to have contributed to the decline of trustworthy sources of news. Against this background, governments have been urged to intervene in order to ensure the sustainability of the publishing industry. The EU has decided to address publishers’ concerns by introducing an additional layer of copyright as a means to encourage cooperation between press publishers and online services. And the French Competition Authority has recently accused Google of adopting a display policy aimed at frustrating the objective of the domestic law implementing the EU legislation, hence requiring Google to conduct negotiations in good faith with publishers and news agencies on the remuneration for the reuse of their protected content. The Australian Competition and Consumer Commission has instead embraced a regulatory approach, developing a mandatory bargaining code. The aim of this article is to analyse the different solutions advanced in order to assess their economic and legal justifications as well as their effectiveness.

July 14, 2021 | Permalink | Comments (0)

Tuesday, July 13, 2021

On Distributive Justice by Antitrust: The Robin Hood Cartel

On Distributive Justice by Antitrust: The Robin Hood Cartel

 

Maarten Pieter Schinkel

University of Amsterdam - Department of Economics; Tinbergen Institute

Abstract

Inequality concerns in antitrust may justify redistribution agreements: allowing market power that leads to a fairer wealth allocation. We consider a simple example that illustrates the trade-offs involved. Permitting competitors to jointly set prices gives them the ability to price discriminate: charging higher than competitive prices to the rich, and lower to the poor. Despite loosing on the poor and creating deadweight-losses, such a `Robin Hood cartel' is profitable, provided equality is valued enough. Yet the antitrust plan will only give to the poor what is minimally required for permission to profit maximally from its takings from the rich. Society can do much better for its disadvantaged groups, also when the distribution agreement is fully philanthropic.

July 13, 2021 | Permalink | Comments (0)

Monday, July 12, 2021

Revisiting the Bizarre SEP Level of Licensing Antitrust Controversy

July 12, 2021 | Permalink | Comments (0)

Thursday, July 8, 2021

The Effect of Mergers on Variety in Grocery Retailing

The Effect of Mergers on Variety in Grocery Retailing

 

Elena Argentesi

University of Bologna - Department of Economics

Roberto Cervone

Financial Conduct Authority

Tomaso Duso

German Institute for Economic Research (DIW Berlin); TU Berlin- Faculty of Economics and Management - Empirical Industrial Organization

Alessia Marrazzo

Lear - Laboratory of Economics, Antitrust, Regulation

Abstract

We study the effect of a merger between two Dutch supermarket chains to assess its effect on the depth as well as composition of assortment. We adopt a difference-in-differences strategy that exploits local variation in the merger’s effects, controlling for selection on observables through a matching procedure when defining our control group. We show that the merger led the merging parties to reposition their assortment to avoid cannibalization in the areas where they directly competed before the merger. While the low-variety target’s stores reduced the depth of their assortment when in direct competition with the acquirer, the latter increased their assortment. This suggests that variety is a strategic variable in retail chains’ response to changes in local competition.

July 8, 2021 | Permalink | Comments (0)

Wednesday, July 7, 2021

New Release: Herbert Hovenkamp Liber Amicorum - The Dean of American Antitrust Law

 
Dubbed “the dean of American antitrust law” by the New York Times, Herbert Hovenkamp is almost universally recognized as the most cited and the most authoritative US antitrust scholar. Contemporary US antitrust doctrine has been forged in large part by his scholarship, which covers every aspect of antitrust law, and has been cited in more than three dozen US Supreme Court opinions and well over 1,000 lower court decisions. This tribute book honors Professor Hovenkamp’s rich career and lasting influence by gathering contributions from his friends, from fellow academics to civil servants. Divided over six chapters, these contributions address areas of Professor Hovenkamp’s scholarship: antitrust reform, the role of economics in antitrust law and innovation and intellectual property. Through these articles, the reader can delve into the history of competition law as elucidated by Professor Hovenkamp, and thus chart a path for its future.
 
The book is available for sale on Concurrences website.

July 7, 2021 | Permalink | Comments (0)

Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine

Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine

 

Alan J. Meese

William & Mary Law School

Abstract

The Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the Rule of Reason because they produced significant economic harm without offsetting benefits. In so doing the Justices also addressed restraints not before the Court, opining that members of the NCAA may collectively restrict the level of compensation that universities provide student athletes.

Announced almost four decades ago, NCAA and its rationale have exerted substantial influence on Sherman Act doctrine, enforcement policy and scholarly discourse well beyond the context of sports leagues. Later this term, in NCAA v. Alston, the Court will revisit the antitrust propriety of collective limitations on the compensation schools pay student athletes. There the Court will review the Ninth Circuit’s condemnation of NCAA regulations restricting the value of education-related benefits, such as post-graduation scholarships, that schools provide student athletes in addition to tuition, room, board and other costs of attendance.

While antitrust scholars and practitioners disagree about the merits of the Ninth Circuit’s decision, all hope the Court will clarify the extent to which the NCAA may limit student athlete compensation. This essay contends that Alston also presents the Court with an opportunity to address more fundamental questions. That is, the case offers the Court a chance to correct NCAA’s erroneous application of the per se standard and derivative errors the Court committed when conducting rule of reason analysis, errors that reverberate throughout Sherman Act jurisprudence.

In particular, the essay demonstrates that NCAA’s sports league exemption from the ordinary per se standard contradicts basic antitrust principles. Moreover, the rationale for the exemption turned partly on the Court’s (correct) assertion that some horizontal restraints can overcome market failures and enhance interbrand competition. Recognition of these potential benefits undermined the Court’s otherwise broad articulation of the per se rule that purportedly created the need for such an exemption in the first place.

Failure to condemn the restraints before it as unlawful per se also distorted the Court’s pronouncements regarding how to conduct rule of reason analysis. For instance, the requirements for establishing a prima facie case should depend upon the nature of redeeming virtues a restraint might produce. However, courts, agencies and scholars have read NCAA as holding that proof that a restraint produces prices exceeding the non-restraint baseline necessarily establishes such a case, even when the restraint may overcome a market failure. Moreover, lower courts, agencies and the Court itself have read NCAA as endorsing a “Quick Look” approach in some rule of reason cases, allowing plaintiffs to bypass any requirement to establish anticompetitive harm. Finally, the Court’s approach to rule of reason analysis lent credence to the dubious assumption that benefits produced by challenged restraints necessarily coexist with harms, bolstering the equally dubious less restrictive alternative test. Hopefully, the Court will take this opportunity in Alston to correct these errors and ensure a more coherent Section 1 jurisprudence that better reflects the teachings of modern economic theory.

July 7, 2021 | Permalink | Comments (0)