F.M. Scherer has not effectively rebutted my subjectivist criticism of the standard microeconomic welfare model; Scherer's historical reference to what Congress (allegedly) believed is irrelevant to the theoretical concerns raised by subjectivism. Nor does my “principal” criticism of antitrust policy rests on “philosophical foundations”; my principal criticism rests on conventional economic analysis and a detailed economic history of the classic antitrust cases. My conclusion that the electrical equipment conspiracy of the late 1950s had no significant effect on market (...) prices is supported by Ralph Sultan's findings; indeed, it is Scherer who brutally ignores the context and misrepresents the general thrust of Sultan's research. Scherer's comments on OPEC confuse the distinction that I made between private and governmental cartels.Finally, the economic welfare model that Scherer embraces so enthusiastically at the start of his review cannot be so suddenly discarded when I show something inconvenient: namely, that the “dominant firms” in the classic antitrust cases did not reduce market output and did not raise market prices. Scherer has not come to grips with my central thesis that antitrust regulation has generally been employed to restrain the competitive market process. (shrink)

The American Antitrust Institute, a Washington, D.C. think tank, recently completed a study that concludes that competition law and policy plays little if any role in business ethics courses taught in U.S. business schools. To fill this intellectual void, this article makes a case for the development of a business ethics sub-field of antitrust ethics that is synonymous with the ethics of competitive strategy. After reviewing Paine''s Five Principles of Positive Competition and Boatright''s and Hendry''s views on the (...) Moral Manager Model and Moral Market Model, the need for ethical decision-making in a dynamic, innovative environment is explained through a Federal Trade Commission antitrust case involving the Dell Computer Corporation. The author argues that the contributions of Paine, Boatright, and Hendry provide an initial foundation for further research concerning the moral theories, principles, and rules pertaining to antitrust ethics, especially as it pertains to dynamic competition and "fair and competitive" executive behavior. (shrink)

In California Dental Association v. FTC, 119 S. Ct. 1604, the U.S. Supreme Court reviewed a decision by the U.S. Court of Appeals for the Ninth Circuit that a nonprofit affiliation of dentists violated section 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45, which prohibits unfair competition. The Court examined two issues: the Federal Trade Commission's jurisdiction over the California Dental Association ; and the proper scope of antitrust analysis. The Court unanimously held that CDA was (...) subject to FTC's jurisdiction, but split 5-4 in its finding that the district court's use of abbreviated rule-of-reason analysis was inappropriate.CDA is a voluntary, nonprofit association of local dental societies. It boasts approximately 19,000 members, who constitute roughly threequarters of the dentists practicing in California. Although a nonprofit, CDA includes for-profit subsidiaries that financially benefit CDA members. CDA gives its members access to insurance and business financing, and lobbies and litigates on their behalf. Members also benefit from CDA marketing and public relations campaigns. (shrink)

Dominick T. Armentano 's book, Antitrust and Monopoly: Anatomy of a Policy Failure, 2nd ed., has serious limitations as a scholarly work. Monopolistic price?raising is even more objectionable under plausible interpretations of Armentano 's subjectivist criterion than in the standard case, which assumes equal subjective value for all consumers? dollar expenditures. Armentano 's historical review of leading antitrust cases is also faulty. His evidence on the alleged failure of price?fixing schemes is defective, and his approach to judging whether (...) monopoly power existed proceeds from an inappropriately static theory. (shrink)

Over the past twenty years, economic theory has begun to play a central role in antitrust matters. In earlier days, the application of antitrust rules was viewed almost entirely in formal terms; now it is widely accepted that the proper interpretation of these rules requires an understanding of how markets work and how firms can alter their efficient functioning. The Handbook of Antitrust Economics offers scholars, students, administrators, courts, companies, and lawyers the economist's view of the subject, (...) describing the application of newly developed theoretical models and improved empirical methods to antitrust and competition law in both the United States and the European Union. After a general discussion of the use of empirical methods in antitrust cases, the Handbook covers mergers, agreements, abuses of dominance, and market features that affect the way firms compete. Chapters examine such topics as analyzing the competitive effects of both horizontal and vertical mergers, detecting and preventing cartels, theoretical and empirical analysis of vertical restraints, state aids, the relationship of competition law to the defense of intellectual property, and the application of antitrust law to "bidding markets," network industries, and two-sided markets.ContributorsMark Armstrong, Jonathan B. Baker, Timothy F. Bresnahan, Paulo Buccirossi, Nicholas Economides, Hans W. Friederiszick, Luke M. Froeb, Richard J. Gilbert, Joseph E. Harrington, Jr., Paul Klemperer, Kai-Uwe Kuhn, Francine Lafontaine, Damien J. Neven, Patrick Rey, Michael H. Riordan, Jean-Charles Rochet, Lars-Hendrick Röller, Margaret Slade, Giancarlo Spagnolo, Jean Tirole, Thibaud Vergé, Vincent Verouden, John Vickers, Gregory J. WerdenPaolo Buccirossi is Director and Founder of Lear, a research center and an economics consulting firm in Rome, and has worked as an economic advisor at the Italian Competition Authority. (shrink)

This is a philosophical study of concepts that lie at the foundation of antitrust - a body of law and policy designed to promote or protect economic competition. Topics covered are: the nature of competition; the relation between competition and welfare; the distinction between per se rules and rules of reason; agreements; concerted practices; and the spectrum from independent action to collusion. Although there are many legal and economic books on antitrust, this is the first book devoted to (...) the philosophical scrutiny of the concepts that underpin it. No prior knowledge of philosophy is presupposed. The book is primarily directed at students, theorists and practitioners of antitrust, but will also be useful to lawyers, economists, philosophers, political scientists and others who have an interest in the discipline. (shrink)

The book provides an analysis of the grocery retail market in a very large number of countries with an international report written by an economist. The second part of the book offers the analysis of liability issues in relation to non-compliance with CSRs with an international report by a British barrister. Both topics are very timely.

The past few years have seen the opening of several antitrust investigations against some of the most dominant and powerful companies in the world—e.g., the U.S. Department of Justice, numerous states, and the Federal Trade Commission have sued Google, Facebook, and Amazon, and the E.U. has launched additional proceedings against Amazon, Apple, Facebook, and Google. This paper looks at the latest trends and developments in the E.U. and the USA and analyzes the different regulatory approaches taken from a distinct (...) business ethics, that is, ordoliberal perspective. The paper aims to derive ordoliberal-inspired antitrust principles and apply them to the current antitrust proceedings and investigations, thereby assessing their strengths and weaknesses. It also aims at developing ordoliberal-inspired reform proposals which might help to strengthen and “harden” modern-day antitrust regimes. (shrink)

Economists are often called upon as expert witnesses by the parties involved in antitrust litigation. One challenge they may face in US federal courts is compliance with the Daubert standard of admissibility of expert testimony. The interplay between model applicability and the Daubert standard is analyzed, suggesting the importance of distinguishing between weak applicability claims, those that state that a model’s critical assumptions are shared by the target, and strong applicability claims, those that connect empirical models and quantitative market (...) features. Recent antitrust cases in which expert testimonies based on economic models have been assessed following the Daubert standard are examined using this framework. Some normative implications are drawn concerning how to improve judges’ assessment of model-based arguments. (shrink)

Although the details of the Clinton health care plan have yet to emerge from the continuing policy debate over the shape and size of the administration’s reform measures, one thing has become increasingly clear. Several recent developments in antitrust law will have important implications for what the plan will permit and how it will work.By all accounts, the broad outline of the administration’s plan revolves around the development of large and powerful consumer groups who, with the help of sophisticated, (...) government-established intermediaries, will presumably purchase health care wisely and well. This alliance of massed consumer purchasing and government information-gathering will, it is hoped, produce a health care market more in competitive balance than the current version, which is widely regarded as dominated by powerful providers who dictate terms to small, uninformed buying groups. (shrink)

Although the details of the Clinton health care plan have yet to emerge from the continuing policy debate over the shape and size of the administration’s reform measures, one thing has become increasingly clear. Several recent developments in antitrust law will have important implications for what the plan will permit and how it will work.By all accounts, the broad outline of the administration’s plan revolves around the development of large and powerful consumer groups who, with the help of sophisticated, (...) government-established intermediaries, will presumably purchase health care wisely and well. This alliance of massed consumer purchasing and government information-gathering will, it is hoped, produce a health care market more in competitive balance than the current version, which is widely regarded as dominated by powerful providers who dictate terms to small, uninformed buying groups. (shrink)

ABSTRACT A key discourse underpinning US antitrust law is that it protects competition, not competitors. However, what this means in practice both has changed over time and betrays the politics underlying antitrust enforcement. This article interrogates this discourse and its contradictions in the context of the AT&T-Time Warner merger lawsuit through a critical discourse analysis of legal documents related to the case. The case represents a conflict over incentivizing competition in digital advertising markets at the expense of competition, (...) particularly smaller competitors, in video markets. The analysis reveals how the discourse obscures the strategic choices made by courts to protect incumbent companies: by approving the merger, the court circumscribed the video programming and distribution market for consolidation to strengthen the competitive position of the merging parties in the digital advertising market dominated by Facebook and Google. Thus, this discourse masks not just the deference to dominant merging companies, but also the role of courts in shaping market competition at their behest. (shrink)

The purpose of this article is to provide an alternative antitrust model to the mainstream model that is used in competition policy. I call it the InstitutionalEvolutionary Antitrust Model. In order to construct an antitrust model one needs both empirical knowledge and considerations of how to adequately deal with norms. The analysis of competition as an evolutionary process that unfolds within legal rules provides the empirical foundation for the model. The development of the normative dimension involves the (...) elaboration of a comparative approach. Building on those foundations the main features of the Institutional-Evolutionary Model are sketched out and it is shown that its use leads to systematically different outcomes and conclusions than the dominant antitrust ideals. (shrink)

Il apparaît qu’en France aujourd’hui, le modèle néoclassique de la concurrence inspire l’ essentiel de la réglementation de la concurrence. Or la théorie économique moderne, telle qu’elle est inspirée par Coase et Hayek notamment, tend à renverser les certitudes du modèle néoclassique et à admettre que la discrimination commerciale peut avoir un effet bénéfique sur l’efficacité économique. La distribution sélective prend tout son sens dans un contexte d’incertitude et d’ information imparfaite. C’est la confrontation de ces deux philosophies — celle (...) qui inspire le législateur français, le législateur allemand ou la doctrine communautaire européenne, et celle plus optimiste à l’égard des pratiques discriminatoires — qui est opérée dans cet article. Ainsi, la pratique des prix imposés, la franchise, la concession et la protection territoriale sont analysées dans le cadre de cette confrontation. De même, une critique de la doctrine communautaire est exposée. L’évolution du droit des contrats et du droit de la concurrence fait aussi l’objet d’une analyse mettant face à face les deux doctrines. C’est bien la vision du marché en tant que processus qui est au centre de cette analyse.The neoclassical model of competition seems to sustain today in France the main regulations about competition. However, modern economic theory, as initiated by Coase and Hayek notably, calls into question the certainties brought about by the neoclassical model and acknowledges the beneficial effects of commercial efficiency. Contractual discrimination takes its meaning in an open-ended world. The contrast between these two views — the one which inspires the French legislator, the German legislator, or the European Community doctrine, and the more optimistic one with respect to discriminatory practices — is put forward in this paper. Thus, imposed prices, franchising, concession and territorial protection are pratices discussed within this contrast. Moreover, a critique of the European Community doctrine is developed. The evolution of contract law and antitrust law is also examined by contrasting the two views. It is indeed the thesis of the market as a process which is underlined in the present analysis. (shrink)

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property, antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always (...) acknowledged, ways. In particular, it argues that some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency. The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily. (shrink)

Self-regulation exists at the firm-level, the industry-level, and the business-level of economic organization. Industry self-regulation has faced economic (free rider) and legal (antitrust) impediments to widespread implementation, although there exist examples of effective industry self-regulation, e.g., securities industry and the SEC, advertising and the FTC. By instituting industry codes of conduct, national trade associations have shown to be natural vehicles for self-regulation. While there has been long-standing general encouragement for establishing industry codes, adopting and enforcing conduct codes has been (...) seriously circumscribed by restrictive Supreme Court decisions and FTC advisory opinions. One approach to clearing legal confusion is to petition the FTC to issue an industry guide on promulgating and enforcing trade association codes of conduct. Another strategy is to utilize a stakeholder approach to association ethics committee appointments that subsequently influence code creation and enforcement. Finally, a new concept of an industry code of conduct will consist of three subcodes: an economic code; an environmental code; and a socio-political code. Combined, these strategic approaches will offer new opportunities for effective nonmarket regulation. (shrink)

In this chapter, I argue that it is impossible to trust the Big Tech companies, in an ethically important sense of trust. The argument is not that these companies are untrustworthy. Rather, I argue that the power to hold the trustee accountable is a necessary component of this sense of trust, and, because these companies are so powerful, they are immune to our attempts, as individuals or nation-states, to hold them to account. It is, therefore, literally impossible to trust Big (...) Tech. After introducing the accounts of trust and power that I deploy, I argue that Big Tech companies have four kinds of power that render them unaccountable: fiscal power, political power, data power, and cognitive power. I conclude by reflecting on recent calls to break up the Big Tech firms, suggesting a new antitrust test in the light of my arguments. (shrink)

Mark White has developed a provocative skepticism about antitrust law. I first argue against three claims that are essential to his argument: the state may legitimately constrain or punish only conduct that violates someone’s rights, the market’s purpose is coordinating and maximizing individual autonomy, and property rights should be completely insulated from democratic deliberation. I then sketch a case that persons might have a right to a competitive market. If so, antitrust law does deal with conduct that violates (...) rights. The main thread running throughout the article is that what counts as a legitimate exercise of property rights is dynamic, sensitive to various external conditions, and is the proper object of democratic deliberation. (shrink)

The debate surrounding ‘big tech’ and antitrust has dominated public policy discourses over the past few years in many parts of the world. Noteworthy is that several countries and regions, including China, the European Union, and the United States, have launched investigations into the allegedly anticompetitive and exclusionary business practices of companies such as Amazon, Apple, Facebook, and Google and their Chinese counterparts, Alibaba and Tencent. This paper builds on the renewed interest in the topic and discusses in detail (...) – and from an ordoliberal perspective – the key characteristics of the digital economy, the business conduct of tech platforms, and the corresponding antitrust concerns, as well as possible reform steps which could help to strengthen modern-day competition law and policy (and antitrust enforcement). (shrink)

Today’s economy has transitioned from the traditional brick and mortar structure of doing business to that of digitalized economy. The latter functions with the aid of technological tools with ‘data’ being the most significant tool in today’s context. The issue has become even more critical with the advent of ‘big data’. It is argued that accumulation, analysis and usage of ‘big data’ enable creation of varied forms of entry barriers for new entrants and information asymmetries for customers which in turn (...) affect ‘market competition’ adversely (Santesteban & Longpre The Antitrust Bulletin,65(3), 459-485, 2020; Fast et al., 2021). Consequently, it is pertinent to revisit the traditional understanding of ‘market competition’ as stipulated in the antitrust laws across jurisdictions and specifically the Indian Competition Act, 2002. The existing regime being centred around neo-classical price theory is not equipped to comprehend the various dimensions of the digitalised world where ‘data’ is the new form of currency having effects on market power and, consequently, on market competition. Digital markets are multi-sided and non-linear in nature where ‘big data’ acts as a lubricant for their smooth functioning. Whether access to data provides any form of competitive advantage is the central question. A resource to provide any form of competitive advantage must be distinct, rare, inimitable, non-substitutable and valuable (Barney, 1991). If data carries such characteristics, the continuous percolation and usage of technology powered by ‘big data’ into the markets will affect the understanding of the basic competitive wrongs. Potential interdependencies between technology, data and market power also affect the understanding of ‘dominance’ as stipulated under the existing law. The unique challenges which ‘big data’ poses are not only restricted to competition policy but also extended to enforcement as they trigger overlapping constitutional concerns in relation to privacy. This demands for looking at the existing gap between competition law/policy and the ‘data’-driven challenges being faced in this ever-evolving digital economy. (shrink)

In this paper I would like to present a brief description of the issues in English-Polish translation in the field of antitrust. Ever since Poland became a part of the broadening European integration, the Polish antitrust laws have been strongly “Europeanised”. Many new linguistic elements exist in both the Polish language of antitrust law and Polish legal language. Whatever the cause, the result is a decrease in the quality of the language. The issues of concern are divided (...) into two groups. The first relates to producing Polish versions of EU legal documents concerning antitrust. The second is related to translating English language of antitrust for the purposes of drafting national documents concerning antitrust, both legal documents and documents that are not legally binding. I will then turn to areas where a change is needed and propose measures that might be helpful in the current circumstances. (shrink)

The paper deals with the mysterious persistence of the Chicago approach as the main analytical engine driving antitrust enforcement in American courts. While the approach has been almost completely replaced in contemporary industrial economics by the so-called Post-Chicago view, Chicago arguments still permeate antitrust case law at all judicial levels. Chicago’s rise to dominance was allegedly due to the superiority of its economic analysis. Why did the Post-Chicago approach, which is supposed to have a clear analytical edge, fail (...) to do the same? The paper offers a series of explanations: though none is completely exhaustive, each may account for a bit of the story. More generally, the current situation of antitrust case law offers valuable methodological insight on themes such as how economists persuade or the impact of the different professional practices in the diffusion of economic ideas. (shrink)

This paper assesses whether the purposive interpretation of the term “undertaking” is used by decision-makers in antitrust cases. This article presents a short summary of this research regarding cases related to the abuse of a dominant position. As a rule, priority must be given to the direct meaning of a text. There are, however, important exceptions to the sup- posed rule. A concise examination of the jurisprudence shows that purposive interpretation is used where the provision in question is open (...) to several inter- pretations. This article relates in some form to the problems that arise from the EU-oriented purposive interpretation of the term “undertaking” as defined under Polish antitrust law. The article considers some of them. (shrink)

On September 18, 1995, the U.S. Court of Appeals for the Seventh Circuit handed down a decision in Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic ) that sets two important precedents regarding the status of health maintenance organizations under antitrust law. Chief Judge Posner, writing for the court, concluded that HMOs do not constitute a market separate from the general market for medical services and that agreements, between HMOs in a region, to operate in separate (...) areas constitute a prohibited form of market splitting.This case primarily involves two HMOs in north central Wisconsin: one a subsidiary of Blue Cross, the other a subsidiary of the Marshfield Clinic. The Blue Cross HMO claimed that the Marshfield HMO had an illegal monopoly in the region's HMO market and therefore violated the Sherman Act ). (shrink)