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TOTM One of my summer writing projects is a response to Einer Elhauge’s recent, highly acclaimed article, Tying, Bundled Discounts, and the Death of the Single . . .
One of my summer writing projects is a response to Einer Elhauge’s recent, highly acclaimed article, Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory. In the article, which appeared in the December 2009 Harvard Law Review, Elhauge defends current tying doctrine, which declares tie-ins to be per se illegal when the defendant has market power in the tying product market and the tie-in affects a “not insubstantial” volume of commerce in the tied product market.
Read the full piece here.
TOTM I’ve recently finished reading Jonathan Baker’s Preserving a Political Bargain: The Political Economy of the Non-Interventionist Challenge to Monopolization Enforcement, forthcoming in the Antitrust Law . . .
I’ve recently finished reading Jonathan Baker’s Preserving a Political Bargain: The Political Economy of the Non-Interventionist Challenge to Monopolization Enforcement, forthcoming in the Antitrust Law Journal.
Baker’s central thesis in Preserving a Political Bargain builds on earlier work concerning competition policy as an implicit political bargain that was reached during the 1940s between the more extreme positions of laissez-faire on the one hand and regulation on the other. The new piece tries to explain what Baker describes as the “non-interventionist” critique of monopolization enforcement within this framework.
Scholarship Abstract There are very few industries that can attract the attention of Congress, multiple federal and state agencies, consumer groups, economists, antitrust lawyers, the business . . .
There are very few industries that can attract the attention of Congress, multiple federal and state agencies, consumer groups, economists, antitrust lawyers, the business community, farmers, ranchers, and academics as the agriculture workshops have. Of course, with intense interest from stakeholders comes intense pressure from potential winners and losers in the political process, heated disagreement over how gains from trade should be distributed among various stakeholders, and certainly a variety of competing views over the correct approach to competition policy in agriculture markets. These pressures have the potential to distract antitrust analysis from its core mission: protecting competition and consumer welfare. While imperfect, the economic approach to antitrust that has generated remarkable improvements in outcomes over the last fifty years has rejected simplistic and misleading notions that antitrust is meant to protect “small dealers and worthy men” or to fulfill non-economic objectives; that market concentration is a predictor of market performance; or that competition policy and intellectual property cannot peacefully co-exist. Unfortunately, in the run-up to and during the workshops much of the policy rhetoric encouraged adopting these outdated antitrust approaches, especially ones that would favor one group of stakeholders over another rather than protecting the competitive process. In this essay, we argue that a first principles approach to antitrust analysis is required to guarantee the benefits of competition in the agricultural sector, and discuss three fundamental principles of modern antitrust that, at times, appear to be given short-shrift in the recent debate.
TOTM The DOJ has posted the transcript from the recent DOJ/USDA hearings on antitrust in agriculture here. I figured our readers might be especially interested in . . .
The DOJ has posted the transcript from the recent DOJ/USDA hearings on antitrust in agriculture here. I figured our readers might be especially interested in seeing Christine Varney’s comments (especially without having to slog through all 350 pages to find them!). I have bolded some of the most interesting parts of her comments.
TOTM A common theme throughout the day has been the declining number of seed companies–increasing concentration–and its effect. Except no one has talked about the effect. . . .
A common theme throughout the day has been the declining number of seed companies–increasing concentration–and its effect. Except no one has talked about the effect. Other than pointing to the structural change itself, no one seems to have any evidence relating to the effect of the change. One farmer at the open mic session (coincidentally one who had been sued by Monsanto) asserted that the move from 70 seed companies to 4 represented a relevant decline in competition. But he didn’t talk about any relevant effect; he had nothing to offer on declining return on investment–no evidence that the change actually affected his bottom line.
TOTM Bill Northey, IA Ag Sec’y, sounds a bit like an economist (ah, turns out he has a degree in ag business and an MBA . . . .
Bill Northey, IA Ag Sec’y, sounds a bit like an economist (ah, turns out he has a degree in ag business and an MBA . . . ). Yes, price of seeds has gone up, but so has yield, and so has overall value. The issue, he says, is how to divide the surplus, and he suggests that it’s dividing the pie that drives farmer concerns. That’s not at all a surprise, but it’s also not much of an antitrust issue. Unless the pie could be bigger absent, say, Monsanto’s huge investment in seeds and the resulting relatively-concentrated market structure (and basing enforcement on the theoretical possibility of that counter-factual is a perilous enterprise, as Josh and I have suggested many times), this is just a question of pecuniary transfers. Sure, they matter a lot to the parties involved and there’s always an incentive to deputize the government to put a thumb on the scale of that dispute, but that’s not a matter of allocative efficiency, and not a matter for the antitrust laws.
TOTM Today, the Commission announced a consent decree with Transitions Optical in an exclusionary conduct case. Here’s the FTC description… Read the full piece here.
Today, the Commission announced a consent decree with Transitions Optical in an exclusionary conduct case. Here’s the FTC description…
TOTM In the comments to my last post on Mr. Obama’s health proposals (which have gotten worse — price controls!?), “Chris” and I have been having . . .
In the comments to my last post on Mr. Obama’s health proposals (which have gotten worse — price controls!?), “Chris” and I have been having a back-and-forth about what he characterizes as a uniquely Republican disease — obstructionism. He calls Republicans “the Party of No.”
Popular Media Regarding firm size and integration, it must be kept in mind that the agriculture industry in the U.S. has, for good reasons, moved beyond the . . .
Regarding firm size and integration, it must be kept in mind that the agriculture industry in the U.S. has, for good reasons, moved beyond the historic, pastoral image of small family farms operating in quiet isolation, devoid of big business and modern technologies. The genetic traits that give modern seeds their value—traits that confer resistance to herbicide and high yields, for example—are often developed through processes that are technologically-advanced, time- and money-intensive, risky investments, and subject to various layers of regulation. It doesn’t take expertise in industrial organization to imagine why at least for some participants in this market these processes are likely to be more efficiently and effectively conducted within large agribusiness companies having enormous research and development budgets and significant expertise in managing complex business and legal operations, than they are by the somber couple depicted in the famous 1930 Grant Wood painting, “American Gothic.” Nor is such expertise required to imagine why complex contracting across firms, of any size, is likely to be of significant help in supporting the specialization and division of labor that is useful in allowing some businesses (even a small family farm is a business) to be good at planting and harvesting while others are good at inventing, investing, managing, developing, testing, manufacturing, marketing, and distributing the next wave of innovative crop technologies. This requires on the one hand that the government give reliable enforcement to contracts and property rights whether tangible or intangible (extremely important in this industry are patents, trade secrets, and even trademarks), while on the other hand it allows firms wide flexibility to decide for themselves which of these contracts and property rights they would like to enter into or obtain pursuant to the applicable bodies of contract and property law.
