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.
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
This book provides an innovative interpretation of industrialization and statebuilding in the United States. Whereas most scholars cast the politics of industrialization in the progressive era as a ...narrow choice between breaking up and regulating the large corporation, Berk reveals a third way: regulated competition. In this framework, the government steered economic development away from concentrated power by channeling competition from predation to improvements in products and production processes. Louis Brandeis conceptualized regulated competition and introduced it into public debate. Political entrepreneurs in Congress enacted many of Brandeis's proposals into law. The Federal Trade Commission enlisted business and professional associations to make it workable. The commercial printing industry showed how it could succeed. And 30 percent of manufacturing industries used it to improve economic performance. In order to make sense of regulated competition, Berk provides an original theory of institutions he calls 'creative syncretism'.
Contrary to common belief, large digital platforms that deal directly with consumers, such as Amazon, Apple, Facebook, and Google, are not "winner-take-all" firms. They must compete on the merits or ...otherwise rely on exclusionary practices to attain or maintain dominance, and this gives antitrust policy a role. While regulation may be appropriate in a few areas such as for consumer privacy, antitrust's firm-specific approach is more adept at addressing most threats to platform competition. When platforms exert their market power over other firms, liability may be apt, but remedies present another puzzle. For the several pending antitrust complaints against Google and Facebook, for instance, what should be the remedy if there is a violation? Breaking up large firms that benefit from extensive economies of scale and scope will injure consumers and most input suppliers, including the employees who supply labor. In many situations, a better approach would be to restructure management rather than assets, which would leave the platform intact as a production entity but make decision-making more competitive. A second option to breaking up firms would be to require interoperability - and in the information context, mandate the pooling of valuable information. These measures could promote competition and simultaneously increase the value of positive network effects. Finally, this article examines another aspect of platforms - their acquisitions. For the most salient category of platform acquisitions of nascent firms, the greatest threat to competition comes from platforms' acquisitions of complements or differentiated technologies. Current merger-enforcement tools are ill suited to analyze this new variation on competitive harm. New approaches are required.
Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets ...as in product markets, the government does little to address the labor market problem, and private litigation has been rare and mostly unsuccessful. One reason is that the analytic methods for evaluating labor market power in antitrust contexts are far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our approach to other forms of anticompetitive practices undertaken by employers against workers. We highlight some arguments and evidence indicating that market power may be even more important in labor markets than in product markets.
Amazon's Antitrust Paradox KHAN, LINA M.
The Yale law journal,
01/2017, Volume:
126, Issue:
3
Journal Article
Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction ...house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of ecommerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm's structure and conduct pose anticompetitive concerns—yet it has escaped antitrust scrutiny. This Note argues that the current framework in antitrust—specifically its pegging competition to "consumer welfare," defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon's dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are heightened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible. Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors. This Note maps out facets of Amazon's dominance. Doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of Amazon's structure and conduct, and underscores deficiencies in current doctrine. The Note closes by considering two potential regimes for addressing Amazon's power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties.
The Effective Competition Standard Steinbaum, Marshall; Stucke, Maurice E.
The University of Chicago law review,
03/2020, Volume:
87, Issue:
2
Journal Article
Peer reviewed
America's failing antitrust system is, in large part, to blame for today's market power problem. Lax antitrust law and enforcement have allowed troubling trends like corporate consolidation to remain ...unchallenged, further embedding our skewed economy. In highly concentrated markets, individuals have limited choice and little power to pick their price, quality, or provider for the goods and services they need; workers are met with powerful employers and have little agency to shop around or bargain for competitive wages and benefits; and suppliers can't reach the market without paying powerful intermediaries or succumbing to acquisition.
Our Essay offers an alternative to the courts' consumer welfare standard. Ambiguous and inadequate, the consumer welfare standard identifies threats to competition only by the potential consequences for consumers and ignores adverse effects on workers, suppliers, product quality, and innovation.
Our effective competition standard would restore the primary aim of antitrust laws—namely, to promote competition wherever in the economy it has been compromised, including throughout supply chains and in the labor market. These changes are essential to protect competitive markets in the United States, as well as individuals and the economy at large, by deconcentrating private power.
A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, ...efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and fact-specific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of creating substantive antitrust rules. It is difficult to quantify this harm.
This Essay argues that rulemaking under § 5 of the Federal Trade Commission Act should supplement antitrust adjudication, and that this institutional shift would lower enforcement costs, reduce ambiguity, and facilitate greater democratic participation. We build on existing scholarship to debunk the view that the Federal Trade Commission (FTC) does not have competition rulemaking authority pursuant to the Administrative Procedure Act conferring Chevron deference, and trace legislative history to underscore how Congress designed the FTC to play a unique institutional role.
We close by outlining an initial set of factors that should weigh in favor of rulemaking: when there is significant learning from past enforcement and when private litigation would be unlikely. Finally, we pose questions in the context of the FTC's recent hearings to prompt further discussion on where this unused tool would be most useful.
