Tuesday, July 5, 2022

Call for papers: Antitrust Law Journal Symposium on Antitrust Process (and Policy Effects)  

CALL FOR PAPERS

 

Antitrust Law Journal

Symposium on Antitrust Process (and Policy Effects)

 

Proposals due by August 8

 

                The Antitrust Law Journal seeks article proposals for our next symposium, on the process of antitrust investigations and proceedings, and related policy effects.

                In contrast to symposia focused on antitrust decisional law and the development of substantive principles, this symposium zeroes in on antitrust enforcement through the lens of institutional process and procedures—and how those processes and procedures influence or determine agency policy.  Our aim is broad-based, focusing on the U.S., Europe, and jurisdictions worldwide, on various types of investigations and proceedings (including, among others, M&A, civil conduct, and criminal conduct matters).  In so doing, we will look to examine the interplay between authorities’ antitrust processes and policy positions on antitrust merits on a global basis.

                As a symposium for the antitrust bar’s premiere scholarly journal, we are not looking to address “of the moment” discussions about any individual authority’s processes and policies, past or present.  Rather, we are focused on antitrust authorities’ internal processes and procedures for reaching decisions across administrations.

                Below, we provide some examples of questions we are looking to address—but we are not limited to this set of questions.

                The editors actively seek diverse viewpoints and scholarly approaches.  Submissions for this symposium will be peer-reviewed and selected with these goals in mind.  Although the symposium is not a historical or comparative project, the editors welcome articles with historical or comparative features.

                This symposium is led by Editorial Board Chair Matt Sawchak, Executive Editor Tina Miller, and editors Lee Greenfield, Bruce Hoffman, Andreas Reindl, and Jesse Solomon.  They are heading a working group with a wide range of academic and professional experience and views on antitrust policy.

                To be considered for this symposium, please email a 300-word or longer abstract of your proposed article to Tina Miller at tinamiller.antitrust@gmail.com by 5pm U.S. Eastern time on August 8.

                We also welcome complete drafts of articles, as long as those drafts include an abstract.  Articles for this symposium can range from essays to articles of up to 15,000 words (including words in footnotes). 

                We also welcome complete drafts of articles, which must include an abstract.  Articles for this symposium can range from essays to articles of up to 15,000 words (including words in footnotes). 

                Once the editors select articles for this symposium, complete drafts will be due by Oct. 17.  All acceptances will be conditioned on timely submission of drafts and successful completion of the Journal’s editing process, from both procedural and substantive standpoints.

                The Journal limits its contents to articles that have not been published elsewhere.  In your cover email to Tina Miller, please state whether your proposed article—or a substantially overlapping article of yours—has already been published elsewhere (other than on SSRN or a similar platform for works in progress).

                At a later stage of the process, the editors will ask the authors of potential articles to address the journal’s policy on potential conflicts.  Here is a link to that policy:  https://tinyurl.com/y974wnfa  

                If you have any questions about this call for papers, please email Tina Miller at tinamiller.antitrust@gmail.com.  Thank you.

List of Possible Topics for Symposium:

  • There is much press about antitrust “reform,” without explanation of what counts as “reform.”  What is “antitrust reform”?  Is “reform” different in the U.S. than abroad?  Is “reform” purely a substantive concept, or does it also have process components? 
  • What are the procedural differences between domestic and international agencies for behavioral investigations (either civil or criminal)?  How do those procedural differences create different incentives and defensive strategy for investigated parties, and are those processes changing?  Should they?
  • How have different jurisdictions’ leniency programs in criminal matters evolved over time, and how has the evolution of agency policies and attitudes toward leniency affected potential applicant’s incentives and authorities’ ability to develop and prosecute criminal violations?
  • In agencies such as the FTC and DOJ, who decides what when?  What are the core rules and regulations for procedural and managerial decisions, and how have they evolved over time?  How have these rule changes affected substantive enforcement decisions?
  • M&A has been at record levels for some time.  Do policy changes at the agencies have a discernible or measurable effect on M&A players as claimed by private companies?  If so, what are the effects of policy reforms in M&A?
  • The HSR Act, when it was enacted in 1976, outlines a variety of thresholds and timetables that are often extended or expanded by agency process (standard agency timing agreements; standard agency signals for pulls and refiles).  Is the broadening of agency HSR review by process consistent with, or in conflict with, the original aims of the HSR Act?
  • As process changes at a given agency or within a given country, what are the implications for cross-border coordination among antitrust authorities?  For example, has China’s reorganization of its antitrust agencies into SAMR had a substantive effect on China’s coordination or lack of coordination with other authorities?
  • How has the Article 22 EUMR process changed for referrals from member states to the EC?  What does this change mean for substantive outcomes in cases such as Illumina/Grail?
  • The U.S. is relatively unusual in having two separate antitrust enforcement agencies.  How has the clearance process for routing matters to the FTC or the DOJ evolved over time, and is it sensible?  Should the agencies implement changes?
  • How transparent are the domestic and international authorities in their decision-making, and how transparent should they be?  Do the authorities provide sufficient information regarding their decision-making to give parties contemplating transaction or useful guidance about the authorities’ procedural and substantive approaches?  What sort of review or appeal mechanisms are or should be available to private parties during an enforcement investigation before receiving judicial review?
  • Should enforcement officials have broad discretion to reset or shift the policy aims of their agencies?  If so, where is the line between agency policymaking and Congressional legislating?  What are the effects of shifts in enforcement priorities between administrations––e.g., do they reduce the independence of independent enforcement agencies and move the agencies closer to the political sphere?  If so, is that a good or bad thing? 
  • To what degree should antitrust agencies invest their limited resources in high-priority sectors (e.g., “Big Tech,” pharma)?  To what degree should we have laws, such as Sen. Klobuchar’s pending bill, which enhance scrutiny of particular industries rather than transactions or conduct more generally?
  • What is the appropriate process for enacting substantive guidelines between the agencies?  Should both the FTC and the DOJ have the same guidelines?
  • Should staff members at domestic and international authorities have discretion to speak publicly and publish on issues of law (not matters under investigation)?  To what degree should the agencies permit staff to support or deviate from the approach of appointed agency heads?
  • How have authorities’ procedural approach to evaluating proposed merger remedies changed over time?  Have those changes struck a proper balance between minimizing the chances that a remedy will not prove effective in replicating pre-transaction competition and avoiding prohibiting or delaying efficiency-creating transactions?

https://lawprofessors.typepad.com/antitrustprof_blog/2022/07/call-for-papers-antitrust-law-journal-symposium-on-antitrust-process-and-policy-effects-proposals-du.html

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