Showing 9 of 273 Publications in Monopolization

Google and the Limits of Antitrust

Scholarship The antitrust landscape changed dramatically in the last decade. Within the last two years alone, the Department of Justice has held hearings on the appropriate scope of Section 2 of the Sherman Act and has issued, then repudiated, a comprehensive Report.

Summary

The antitrust landscape changed dramatically in the last decade. Within the last two years alone, the Department of Justice has held hearings on the appropriate scope of Section 2 of the Sherman Act and has issued, then repudiated, a comprehensive Report. During the same time, the European Commission has become an aggressive leader in single?firm conduct enforcement by bringing abuse of dominance actions and assessing heavy fines against firms including Qualcomm, Intel, and Microsoft. In the United States, two of the most significant characteristics of the new antitrust approach have been the increased focus on innovative companies in high?tech industries and the diminished concern that erroneous antitrust interventions will hinder economic growth. This focus on high?tech industries is dangerous, and the concerns regarding erroneous interventions should not be dismissed too lightly.

This Article offers a comprehensive, cautionary tale in the context of a detailed factual, legal, and economic analysis of the next Microsoft: the theoretical, but perhaps imminent, enforcement against Google. Close scrutiny of the complex economics of Google’s disputed technology and business practices reveals a range of procompetitive explanations. Economic complexity and ambiguity, coupled with an insufficiently deferential approach to innovative technology and pricing practices in the most relevant case law, portend a potentially erroneous—and costly—result.

Our analysis, by contrast, embraces the cautious and evidence?based approach to uncertainty, complexity, and dynamic innovation contained within the well?established error?cost framework. As we demonstrate, though there is an abundance of error?cost concern in the Supreme Court precedent, there is a real risk that the current, aggressive approach to antitrust error, coupled with the uncertain economics of Google’s innovative conduct, will yield a costly intervention. The point is not that we know that Google’s conduct is procompetitive, but rather that the very uncertainty surrounding it counsels caution, not aggression.

 

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Antitrust & Consumer Protection

Why can’t we have a better press corps?: WaPo Google antitrust edition

TOTM Steven Pearlstein at the Washington Post asks if it’s “Time to loosen Google’s grip.”  The article is an analytical mess.  Pearlstein is often a decent . . .

Steven Pearlstein at the Washington Post asks if it’s “Time to loosen Google’s grip.”  The article is an analytical mess.  Pearlstein is often a decent business reporter–I’m not sure what went wrong here, but this is a pretty shoddy piece of antitrust journalism.

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Antitrust & Consumer Protection

Correcting Herb Kohl (and Kayak and Bing Travel . . .) on Google/ITA

TOTM Today comes news that Senator Kohl has sent a letter to the DOJ urging “careful review” of the proposed Google/ITA merger.  Underlying his concerns (or . . .

Today comes news that Senator Kohl has sent a letter to the DOJ urging “careful review” of the proposed Google/ITA merger.  Underlying his concerns (or rather the “concerns raised by a number of industry participants and consumer advocates that I believe warrant careful review”) is this…

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Antitrust & Consumer Protection

The EU tightens the noose around Google

TOTM Here we go again.  The European Commission is after Google more formally than a few months ago (but not yet having issued a Statement of . . .

Here we go again.  The European Commission is after Google more formally than a few months ago (but not yet having issued a Statement of Objections).

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Antitrust & Consumer Protection

What’s An Internet Monopolist? A Reply to Professor Wu

TOTM We’ve been reading with interest a bit of an blog squabble between Tim Wu and Adam Thierer ( see here and here) set off by . . .

We’ve been reading with interest a bit of an blog squabble between Tim Wu and Adam Thierer ( see here and here) set off by Professor Wu’s WSJ column: “In the Grip of the New Monopolists.”  Wu’s column makes some remarkable claims, and, like Adam, we find it extremely troubling.

Read the full piece here.

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Antitrust & Consumer Protection

FTC Settlement Finalized

TOTM The FTC settlement with Intel has been finalized with one change the Commission’s press release describes as follows… Read the full piece here. 

The FTC settlement with Intel has been finalized with one change the Commission’s press release describes as follows…

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Antitrust & Consumer Protection

When Google’s Competitors Attack …

TOTM We’ve discussed the all too common tactic in antitrust of rivals complaining to government agencies to get them to bring antitrust complaints.  There is nothing . . .

We’ve discussed the all too common tactic in antitrust of rivals complaining to government agencies to get them to bring antitrust complaints.  There is nothing particularly special about this tactic.  As I’ve pointed out in the context of allegations by Microsoft and Microsoft-supported rivals of Google, conventional economic reasoning suggests that, without more, complaints from rivals should be viewed with skepticism…

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Antitrust & Consumer Protection

DOJ v. Blue Cross Blue Shield of Michigan

TOTM This should be an interesting case to watch.  As I’ve discussed, if one excludes policy speeches and restricts focus to enforcement action and activity, it . . .

This should be an interesting case to watch.  As I’ve discussed, if one excludes policy speeches and restricts focus to enforcement action and activity, it has been thus far difficult to distinguish the Obama Antitrust Division from the Bush II Antitrust Division when it comes to single firm or allegedly exclusionary conduct.  But the DOJ’s recent announcement of case against Blue Cross Blue Shield of Michigan looks like the DOJ’s first major “exclusionary” conduct case — despite the fact that it is brought under Section of the Sherman Act rather than Section 2 (there is also a state antitrust law claim).

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Antitrust & Consumer Protection

Misbehavioral Economics: The Case Against Behavioral Antitrust

TOTM In a policy speech earlier this year, Commissioner J. Thomas Rosch of the Federal Trade Commission advocating the incorporation of behavioral economics into antitrust analysis . . .

In a policy speech earlier this year, Commissioner J. Thomas Rosch of the Federal Trade Commission advocating the incorporation of behavioral economics into antitrust analysis suggested one concern that others might have with the approach was that “behavioral economics was simply liberalism masquerading as economic thinking.”   The Commissioner himself has been a vocal proponent of incorporating insights from behavioral economics into antitrust, as has already been done in the consumer protection realm (see, e.g. CFPB).  Indeed, with Cass Sunstein’s appointment at OIRA, the recent creation of a “Nudge” team in David Cameron’s Cabinet (aka “behavioral insight team”) in the UK, the CFPB, and the calls from at least one Federal Trade Commissioner to modify antitrust analysis suggest the behavioral regulatory regime is no longer right around the corner; it has arrived.

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Antitrust & Consumer Protection