The international spread of antitrust suggested the historical process shaping global capitalism. By the 1930s, Americans feared that big business exceeded the government's capacity to impose ...accountability, engendering the most aggressive antitrust campaign in history. Meanwhile, big business had emerged to varying degrees in liberal Britain, Australia and France, Nazi Germany, and militarist Japan. These same nations nonetheless expressly rejected American-style antitrust as unsuited to their cultures and institutions. After World War II, however, governments in these nations - as well as the European Community - adopted workable antitrust regimes. By the millennium antitrust was instrumental to the clash between state sovereignty and globalization. What ideological and institutional factors explain the global change from opposing to supporting antitrust? Addressing this question, this book throws new light on the struggle over liberal capitalism during the Great Depression and World War II, the postwar Allied occupations of Japan and Germany, the reaction against American big-business hegemony during the Cold War, and the clash over globalization and the WTO.
This book is an effort to consolidate several different perspectives on antitrust law. First, Professor Hylton presents a detailed description of the law as it has developed through numerous judicial ...opinions. Second, the author presents detailed economic critiques of the judicial opinions, drawing heavily on the literature in law and economics journals. Third, Professor Hylton integrates a jurisprudential perspective into the analysis that looks at antitrust as a vibrant field of common law. This last perspective leads the author to address issues of certainty, stability, and predictability in antitrust law, and to examine the pressures shaping its evolution. The combination of these three perspectives offers something new to every student of antitrust law. Specific topics covered include perfect competition versus monopoly, enforcement, cartels, section 1 doctrine, rule of reason, agreement, boycott, power, vertical restraints, tying and exclusive dealing, horizontal mergers, and conglomerates.
Niamh Dunne undertakes a systematic exploration of the relationship between competition law and economic regulation as legal mechanisms of market control. Beginning from a theoretical assessment of ...these legal instruments as discrete mechanisms, the author goes on to address numerous facets of the substantive interrelationship between competition law and economic regulation. She considers, amongst other aspects, the concept of regulatory competition law; deregulation, liberalisation and 'regulation for competition'; the concurrent application of competition law in regulated markets; and relevant institutional aspects including market study procedures, the distribution of enforcement powers between competition agencies and sector regulators, and certain legal powers that demonstrate a 'hybridised' quality lying between competition law and economic regulation. Throughout her assessment, Dunne identifies and explores recurrent considerations that inform and shape the optimal relationship between these legal mechanisms within any jurisdiction.
Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform ...imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by a variety of online platforms offering, for example, hotel and transportation bookings, consumer goods, digital goods, or handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the United States. Our Feature explains why MFNs employed by online platforms can harm competition by keeping prices high and discouraging the entry of new platform rivals, through both exclusionary and collusive mechanisms, notwithstanding the possibility that some MFNs may facilitate investment by limiting customer freeriding. We discuss ways by which government enforcers in the United States and private plaintiffs could potentially reach anticompetitive platform MFNs under the Sherman Act, and the litigation challenges such cases present.
Multisided platforms are ubiquitous in today's economy. Although newspapers demonstrate that the platform business model is scarcely new, recent economic analysis has explored more deeply the manner ...of its operation. Drawing upon these insights, we conclude that enforcers and courts should use a multiple-markets approach in which different groups of users on different sides of a platform belong in different product markets. This approach appropriately accounts for cross-market network effects without collapsing all of a platform's users into a single product market. Furthermore, we advocate the use of a separate-effects analysis, which rejects the view that anticompetitive conduct harming users on one side of a platform can be justified so long as that harm funds benefits for users on another side. Courts should consider the price structure of a platform, and not simply the net price, in assessing competitive effects. This approach in turn supports our final conclusion: that antitrust plaintiffs should not be required to prove as part of their prima facie case more than occurrence of competitive harm in a properly-defined market; thereafter, the burden to produce procompetitive justifications should shift to defendants.
Antitrust in a time of populism Shapiro, Carl
International journal of industrial organization,
11/2018, Letnik:
61
Journal Article
Recenzirano
•Moderate increases in market concentration have taken place in many sectors in the United States over the past 20 to 30 years, but these increases do not indicate a systematic decline in competition ...in the United States.•Corporate profits have grown sharply as a share of GDP in the United States over the past twenty years, most likely due to the efficiency of some large firms and to growing barriers to entry in some industries.•Economic evidence supports a move toward moderately more vigorous merger enforcement in the United States.•Close antitrust scrutiny is appropriate for today’s largest and most powerful firms, including those in the high-tech sector.•Populist calls to abandon the consumer welfare standard in antitrust are not supported by the evidence, and no better alternative has been offered.
This article discusses how to move antitrust enforcement forward in a constructive manner during a time of widespread and growing concern over the political and economic power of large corporations in the United States. Three themes are emphasized. First, a body of economic evidence supports more vigorous merger enforcement in the United States. Tighter merger control can be achieved by utilizing the existing legal presumption against highly concentrating mergers. Second, close antitrust scrutiny is appropriate for today's largest and most powerful firms, including those in the tech sector. Proper antitrust enforcement regarding unilateral conduct by dominant firms should continue to focus on identifying specific conduct that harms customers or disrupts the competitive process. Third, while antitrust enforcement has a vital role to play in keeping markets competitive, antitrust law and antitrust institutions are ill suited to directly address concerns associated with the political power of large corporations or other public policy goals such as income inequality or job creation.
One of the fundamental challenges currently facing the EU is that of reconciling its economic and environmental policies. Nevertheless, the role of environmental protection in EU competition law and ...policy has often been overlooked. Recent years have witnessed a shift in environmental regulation from reliance on command and control to an increased use of market-based environmental policy instruments such as environmental taxes, green subsidies, emissions trading and the encouragement of voluntary corporate green initiatives. By bringing the market into environmental policy, such instruments raise a host of issues that competition law must address. This interdisciplinary treatment of the interaction between these key EU policy areas challenges the view that EU competition policy is a special case, insulated from environmental concerns by the overriding efficiency imperative, and puts forward practical proposals for achieving genuine integration.
"Horizontal shareholding" occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large ...shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market prices are higher than they would otherwise be. We consider how the antitrust laws might be applied to this practice, identifying a theory of harm and how it matches the law, examining the issues that courts are likely to encounter, and attempting to anticipate litigation problems. While the current literature on horizontal shareholding does not offer a single robust explanation of how the price increase mechanism works, we show that the "effects" test expressed in the Clayton Act does not require proof of the precise mechanism. Further, Section 7's "solely for investment" exception typically will not apply. We also briefly discuss special problems of private plaintiff challenges. Finally, we elaborate the two ways that efficiencies are relevant to analysis of such mergers.
The First Young Competition Law Conference addresses the systematic and methodological challenges future technologies for competition law, such as the normative impact of innovation, the emergence of ...entirely new markets and challenges to private enforcement and DMA, including opportunities of legal tech in collective redress which may help to overcome biases of private parties to sue. The subject matter spans from national competition law in Germany, Austria and Switzerland to European competition law, taking into account a comparative analysis of how to strengthen private enforcement mechanisms in the digital sector in the UK and US. With contributions by Malte Drouet, Universität Osnabrück | Mag.a Melani Dumancic, LL.M. (King's College London) | RA David Fila, LL.M. | Eva Fischer, LMU München | Ass.-Prof. Dr. Lena Hornkohl, LL.M., Universität Wien | Nils Imgarten LL.M., (College of Europe) Universität Göttingen | Philipp Loser, Universität Tübingen | Prof. Dr. Philipp Marsden, LL.M., Bank of England, Enforcement Decision Making Committee | Julius Ott, Universität Potsdam | Jennifer Pullen, M.A., HSG in Law and Economics | RA Hon.-Prof. Dr. jur. Thomas Tiede, LL.M., SPIEKER & JAEGER PartG mbB
In this paper, we discuss whether the consumer welfare (CW) standard needs to be replaced or revised in order for antitrust law to deal effectively with the economic challenges of the platform ...economy. We argue that both the general and platformspecific assaults on the CW standard are misguided, that the CW standard is capable of addressing the economic concerns that critics have raised, and that the proposed alternatives would make things worse—not better.
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