Research Programs
More
What are you looking for?
Showing Latest Publications
Scholarship Abstract Antitrust observers and football fans alike awaited the Supreme Court’s decision in American Needle v. National Football League for months – inspiring over a . . .
Antitrust observers and football fans alike awaited the Supreme Court’s decision in American Needle v. National Football League for months – inspiring over a dozen articles, and even one from the quarterback of the defending champion New Orleans Saints. Yet the implications of the Court’s decision, effectively narrowing the scope of the “intra-enterprise immunity” doctrine to firms with a complete “unity of interests,” are unclear. While some depict the decision as a schism from the last several decades of antitrust law, we explain why this interpretation is meritless and discuss the practical impact of the Court’s holding. The Court’s antitrust jurisprudence over the past several decades, including that of the Roberts Court and American Needle, has broadly embraced rules that are both relatively easy to administer as well as conscious of the error costs of deterring pro-competitive conduct. Intra-enterprise immunity potentially provided such a “filter” that enabled judges to dismiss a non-trivial subset of meritless claims prior to costly discovery. The doctrine, however, proved notoriously difficult to consistently apply in situations involving common organizational structures. Consistent with error-cost principles that have been the lodestar of the Court’s recent antitrust output, American Needle gave the Court an opportunity to effectively abandon intra-enterprise immunity in favor of the Twombly “plausibility” standard. Rather than marking a drastic change in antitrust jurisprudence, therefore, American Needle should be viewed as the Supreme Court substituting an unreliable screening mechanism in favor of a more cost-effective alternative.
TOTM Today’s Wall Street Journal has an article tailor made for anyone wishing to defend free-markets from overreaching regulation. The story details the legal battle between . . .
Today’s Wall Street Journal has an article tailor made for anyone wishing to defend free-markets from overreaching regulation. The story details the legal battle between the monks of St. Joseph Abbey in Louisiana with the Louisiana state funeral regulatory board. As is typical with such boards, the Louisiana version is dominated by the industry. Of course this is just what Stigler would have predicted 40 years ago in his classic article on regulatory capture. Two things struck me about the story however. First is how the “captured” funeral board doesn’t even make a pretext of some sort of health or safety motivation for its actions. In what might be the most honest statement ever made by a cartel member to a newspaper one of the monks’ competitors states…
Read the full piece here.
TOTM In the WSJ, Scott Hemphill (Columbia) and Jeannie Suk (Harvard) defend Charles Schumer’s proposed bill, which would extend copyright protection to fashion design… Read the . . .
In the WSJ, Scott Hemphill (Columbia) and Jeannie Suk (Harvard) defend Charles Schumer’s proposed bill, which would extend copyright protection to fashion design…
TOTM One of the primary concerns with the Proposed HMGs was that the new approach would lead to small relevant markets in order to better reflect . . .
One of the primary concerns with the Proposed HMGs was that the new approach would lead to small relevant markets in order to better reflect the Agencies’ views that the traditional approach understated the importance of competition between close substitutes. I highlighted one analytical concern with this approach in a previous blog post…
TOTM Commissioner Rosch has offered an interesting separate statement on the new HMGs. While favoring the new guidelines generally, Commissioner Rosch offers several criticisms. I concur . . .
Commissioner Rosch has offered an interesting separate statement on the new HMGs. While favoring the new guidelines generally, Commissioner Rosch offers several criticisms. I concur with a few of these criticisms, for example, Commissioner Rosch also argues for a more empirical approach to merger analysis. I agree with that general proposition despite, as we shall see below, the fact that the Commissioner offers it along with the peculiar distinction between “economic evidence” which he rejects and “empirical evidence”. The Commissioner should be applauded for putting these criticisms, as well as those with which I disagree of course, on the record.
TOTM In what has become an annual affair, around this time of the year, I like to make the case for law students to take antitrust. . . .
In what has become an annual affair, around this time of the year, I like to make the case for law students to take antitrust. Each year, the post is edited and tweaked a little bit. So, without further ado, here is this year’s edition of “Why Take Antitrust?”
TOTM A predatory pricing case in California under Section 17043 results in a $21 million fine awarded to one newspaper, the Bay Guardian, in a suit . . .
A predatory pricing case in California under Section 17043 results in a $21 million fine awarded to one newspaper, the Bay Guardian, in a suit against a competitor, San Francisco Weekly (HT: Reason). The suit alleged that the SF Weekly was selling advertising below cost for the purpose of harming a competitor. A summary of the appellate decision (available here): No recoupment, no market power, no harm to competition, no problem. One of the benefits of those requirements for predatory pricing claims under the Sherman Act is to minimize the use of litigation to subvert the competitive process. No such luck under California law. To get a sense of how different operation of 17043 from conventional federal antitrust analysis, consider the following excerpt from the opinion…
TOTM In an earlier post on the CARE Act, I highlighted the fact that the law would essentially immunize state laws regulating the distribution and sale . . .
In an earlier post on the CARE Act, I highlighted the fact that the law would essentially immunize state laws regulating the distribution and sale of beer, wine and liquor wholesalers from challenge under the Commerce clause and the Sherman Act. For more details on the CARE Act, see the earlier post, but the bottom line is that the CARE Act will put an end to successful challenges to anticompetitive state regulation protecting alcohol wholesalers such as the Costco v. Maleng or Granholm v. Heald. In this post, I want to focus on a recent empirical research project that I undertook with FTC lawyer and economist James Cooper evaluating both the competitive effects and social harms from these state regulations of alcohol distribution. For those who want to skip the background and get straight to the paper, here is the SSRN link to “State Regulation of Alcohol Distribution: The Effects of Post and Hold Laws on Output and Social Harms.” The paper has also been released as part of the FTC Bureau of Economics working paper series.
TOTM Todd posts below about the $26 billion bill before the US House today as a gift to teachers (or perhaps more accurately, teachers unions) and . . .
Todd posts below about the $26 billion bill before the US House today as a gift to teachers (or perhaps more accurately, teachers unions) and school bureacrats. In reality, only $10 billion of the funds is specifically slated to rehire laid off teachers and some other public employees. The other $16 billion is to fund another six months of increased Medicaid payments to the the States (according to this NYT article). In theory, States would use the freed up cash flow to retain more teachers, police and other public service employees. So it would appear the gift is more to the whole collection of public employee unions, not just the teachers. However, I want to focus on a different dimension of this bill: the use of the Federal government to circumvent State laws, rules and regulations regarding responsible fiscal spending.
