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Showing 6 of 141 Results in Consumer Welfare Standard

Evading Section Two, Two Ways: The Commission’s Cases Against McCormick and Intel

TOTM Yesterday, in my contribution to the Antitrust & Competition Policy Blog’s Section 5 symposium, I discussed the FTC’s use of Section 5 to evade the . . .

Yesterday, in my contribution to the Antitrust & Competition Policy Blog’s Section 5 symposium, I discussed the FTC’s use of Section 5 to evade the tough standards facing plaintiffs bringing Section 2 claims and how that evasion was likely to cost consumers by stripping out the error-cost protections embedded in modern monopolization law.  I also argued that the Commission’s various justifications for bringing the case under Section 5 were both unpersuasive and unprincipled.  Some of the justifications are to do with the general trend towards favoring Section 5 as a stand alone authority, others rely on the institutional expertise of the Commission relative to judges in federal district court, and still others on the nature of competition in the microprocessor market, e.g. Commissioner Rosch’s claim that the difficulty in distinguishing harm to competitors from harm to competition in this setting supports a Section 5 case.

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Antitrust & Consumer Protection

Andrew Gavil on Revising the Merger Guidelines

TOTM 1.  Do the Merger Guidelines Need Revision? Yes.  Conceptually, the current Guidelines incorporate multiple strands of intellectual and legal history with respect to merger analysis . . .

1.  Do the Merger Guidelines Need Revision?

Yes.  Conceptually, the current Guidelines incorporate multiple strands of intellectual and legal history with respect to merger analysis that have been layered one upon the other over time, but never effectively integrated.  This now encumbers the application of the Guidelines and may be inhibiting the government’s capacity to effectively and efficiently initiate merger challenges.

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Antitrust & Consumer Protection

Abuse of Plaintiff Win Rates as Evidence that Antitrust Law Is Too Lenient

TOTM I was recently reading Dean Chemerinsky (Irvine Law) on the Roberts Court at Age 3. One of Chemerinsky’s standard takes when he talks about the . . .

I was recently reading Dean Chemerinsky (Irvine Law) on the Roberts Court at Age 3. One of Chemerinsky’s standard takes when he talks about the Roberts Court is that the Court’s pro-business stance is one of its defining characteristics. Readers of the blog will know that I’ve been critical of Chemerinsky for his superficial antitrust commentary. For example, in this California Bar Journal piece, under the heading “Favoring Businesses over Consumers and Employees,” Chemerinsky argues that the Roberts Court antitrust decisions favored businesses over consumers by overturning Dr. Miles, “make it more difficult to sue business for antitrust violations” in Credit Suisse, and, in Twombly, made it “harder for plaintiff to get into court.”

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Antitrust & Consumer Protection

The Law and Economics of Monopolization Standards

Scholarship Abstract This chapter provides a survey of the law and literature on monopolization. The focus is American law, but the issues considered are equally applicable . . .

Abstract

This chapter provides a survey of the law and literature on monopolization. The focus is American law, but the issues considered are equally applicable to European law. After briefly reviewing the history of monopolization law in the U.S., I review various approaches to the legal standard for monopolization suggested in the literature. I then attempt to model monopolization standards, and assess their desirability in light of error costs.

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Antitrust & Consumer Protection

“There is Little Evidence that Economic Analysis of Law Has Changed [Antitrust] in Any Noticeable Way”

TOTM Huh? This statement appears in this article by Professor Anthony D’Amato (Northwestern) on the failure of interdisciplinary scholarship in the legal academy. HT: Brian Leiter. . . .

Huh? This statement appears in this article by Professor Anthony D’Amato (Northwestern) on the failure of interdisciplinary scholarship in the legal academy. HT: Brian Leiter. Quite frankly, I was very surprised to see a claim like this in a paper written after 1970 or so. Even in corners of the academy hostile to economic analysis, antitrust is conventionally distinguished as a special case where economics is useful, typically along with some statement about the uniqueness of antitrust. D’Amato reserves no such special treatment for antitrust, criticizing that field in the context of a more general critique of what he describes as the “interdisciplinary turn” in the legal academy on three grounds…

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Antitrust & Consumer Protection

Use and Misuse of Business Documents in Antitrust Enforcement & Adjudication

Scholarship In this article we examine the use of business documents to prove antitrust violations. Such usage has long occurred in the courts and regulatory agencies. More recently, there has been a scholarly effort to justify the use of such documents and the rhetoric they contain in antitrust analysis.

Summary

This Article considers the implications for antitrust law and policy of the relationship between business rhetoric and economic analysis. We maintain that antitrust analysis should remain firmly rooted in economics and that courts must be wary of the role of business rhetoric in antitrust analysis and adjudication. This is not to say that “market realities” reflected in business documents and testimony should not be considered in antitrust cases. Rather, courts and policy makers should recognize the distinction between the market realities themselves and expressions or characterizations of those realities for legally irrelevant business purposes. An important implication is that regulators’ and courts’ reliance on business documents is misplaced, and much of this material should be excluded from consideration by courts.

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Antitrust & Consumer Protection