The Supreme Court has granted cert in Pacific Bell Telephone Co., dba AT&T California v. linkLine Communications in order to address the question of whether a Section 2 “price squeeze” claim is viable under the Sherman Act if the defendant has no duty to deal.

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Chairman Kovacic has posted a paper announcing a major self-assessment initiative at the FTC: The FTC at 100: Into our Second Century.  Here is the opening paragraph…

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I’ve posted to SSRN my new article (co-authored by my colleague Bruce Kobayashi), Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup. We presented an earlier version of our analysis at the George Mason/ Microsoft Conference on the Law and Economics of Innovation and benefited significantly from comments from the discussants and participants. We take an approach grounded in the economics of federalism and recent Supreme Court antitrust jurisprudence in arguing for substantive limits on antitrust enforcement of patent holdup in favor of reliance on patent law as well as state common law. Along the way we discuss recent cases and enforcement actions involving patent holdup, including the D.C. Circuit’s decision in Rambus, Broadcom, and N-Data. If you’re a reader interested in patent holdup and related issues, please give the paper a read. Comments welcome (here or email me).

Read the full piece here.

Abstract

This chapter surveys the legal and economic literatures on the antitrust analysis of tying arrangements and exclusive dealing contracts. We review the analytical framework applied under U.S. antitrust law to tying, bundling and exclusive dealing arrangements as well as the existing theoretical and empirical literatures.

I’ve mentioned previously that my colleague Lloyd Cohen and I are editing a volume for Edward Elgar Publishing on Pioneers in Law and Economics.   Look for details in this space soon on a full list of contributing authors and subjects as well as where to buy the book!  One of the perks of co-editing a volume like this was that I was able to assign myself the chapter on my dissertation advisor and co-author Benjamin Klein.

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I’ve just spent a couple of great days in spectacular Boulder, Colorado at a conference on the New Institutional Economics (NIE). (Not sure why the “the” is required, but it always seems to be used.) The conference, organized by Colorado Law’s Phil Weiser and hosted by the Silicon Flatirons Center for Law, Technology, and Entrepreneurship, was designed to provide law professors with an overview of what the NIE is about and how it can inform legal scholarship. Geoff also attended and would probably agree that the conference was great fun.

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I promised that I would write about why I think that Professor Elhauge’s claim in his new working paper, “Loyalty Discounts and Naked Exclusion,” that he has proven that loyalty discounts generally involve anticompetitive effects is mistaken. Let me begin by saying that this is a very provocative claim from a very serious antitrust analyst and deserves careful attention. Loyalty discounts are an important and highly controversial issue in antitrust at the moment and so economic analysis that enlightens us to their effects in the marketplace should be applauded. I should also note, as I made clear in the first post, that I admire Elhauge’s work and have a great deal of respect for him. Obviously, with that many caveats, you know what is coming next. I strongly disagree that Elhauge’s economic analysis lives up to his claims.

Read the full piece here.

2008 has been a busy year for Harvard Professor Einer Elhauge so far from the looks of his SSRN page (not to mention advising Senator Obama on legal policies). He’s posted three new working papers covering a diverse set of antitrust topics…

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FTC Chairman William Kovacic, easily one of the most insightful thinkers and writers on issues of global competition policy, has posted a new paper offering a thoughtful analysis of where the EU and US competition policy systems have been, where they are going, what institutional differences might cause the systems to converge or diverge further, and what to do about it. Kovacic notes that while “the apparent agreement on overall objectives would seem to be, and is, an important step toward achieving convergence between the two systems” it is important not to avoid frank discussions of what both US and EU officials mean when they invoke the concept of “consumer welfare” or “protecting competition, not competitors” precisely because these phrases can “are so open-ended that their true meaning in practice depends on how they are applied.” Kovacic goes on to discuss various institutional forces favoring both convergence and divergence and offering some suggestions for facilitating the adoption of superior norms. The paper is a must-read for anybody interested in global competition issues.

Read the full piece here.