My colleague Ilya Somin insightfully defends against allegations of the death of Moneyball in baseball and legal academia — largely making the point that larger institutions with larger payrolls imitating the successful elements of the strategy.  There is more there, so go read the whole thing as well as an interesting comment thread.  Ilya points out the following non-exhaustive list of GMU strategies on the hiring market aimed at acquiring undervalued assets: (1) L&E scholars, (2) conservative and libertarian academics; (3) academics with strong publication records but otherwise inferior traditional academic credentials.  Ilya correctly notes that L&E scholars are no longer generally undervalued in legal academia (he also asserts that ideological discrimination and credential fetishization are less than ten years ago — a view that contradicts my own prior somewhat — but I want to focus on the L&E point).

Read the full piece here.

It looks like the old/new EU Microsoft browser tie-in case might be resolved through a requirement that Microsoft offers consumers a “ballot screen”  that would allow users to select and install competing browsers.  (HT: WSJ) That is, Microsoft will be offering up a menu of rival browsers to consumers.  Apparently, the EU is willing to allow Internet Explorer on the menu.  Word from the Commission on the proposal is favorable…

Read the full piece here. 

I was very pleased to thumb through the newest version of Antitrust Magazine and see a TOTM post get some attention.  Its always nice to be cited and have folks take the time to respond to your work — or in this case, blog post.  Its even more tickling when the person doing the responding is a prominent and well respected figure such as former Federal Trade Commissioner Leary.  Commissioner Leary revisits the FTC’s enforcement action in Ovation and takes on the criticism of that enforcement action in this post.  You can see Commissioner Leary’s article here (I believe ABA registration and password required).  I’m grateful for the response and am going to take the opportunity  to argue that, despite the Commissioner’s criticisms, the troublesome implications that I pointed out in the earlier post associated with the enforcement approach in Ovation remain (see also guest blogger Mary Coleman’s related concerns).

Read the full piece here. 

Here’s a great post from Glen Whitman on libertarian paternalism as applied to mortgages and the housing market.  Glen takes Richard Thaler to task for his NY Times piece discussing behavioral economics in the mortgage market and advocating defaults for “plain vanilla” mortgages. Glen’s primary beef is that Thaler ignores the distinction between private and public action…

Read the full piece here. 

There has been a lot of talk recently about the possibility that lax antitrust gave rise to the financial crisis or that antitrust could be used as a proactive weapon to prevent mergers and acquisitions that would create entities “too big to fail.” George Priest recently took AAG Varney to task for suggesting that there was a consensus amongst economists that lax antitrust contributed to the current financial situation.  Simon Johnson has been pushing the idea that antitrust is an appropriate tool for dealing with the type of financial risk imposed by businesses that become so large that their failure would cause substantial damage throughout the economy.  The idea might be catching on.  Frank Pasquale recently cited to Johnson’s work favorably.  The idea has also been favorably cited by Commissioner Rosch.

Read the full piece here.

Commissioner Rosch has offered a defense of the withdraw of the Section 2 Report.  This is an important step and the Commissioner, who readers know I’ve criticized from time to time here, should be credited for laying out his specific objections to the Report.  The objections are, in short, that the Report…

Read the full piece here.

Abstract

Complaints about frivolous patents abound in academic, business, and policy circles, and the focus of blame is usually on the large number of junk patents that have issued from the Patent Office that are actually invalid. The underlying cause is said to be the relatively modest examination performed by the Patent Office. Most popular proposals for change suggest methods for segregating patents into two or so bundles based on whether the patents should be subject to closer examination. A so-called “second window of review” has been proposed to allow competitors to make the choice of which patents get closer examination; and a so-called “gold-plated approach” has been proposed to allow patentees to make the election. Applying a back-to-basics approach, this Article points out two core problems with these popular proposals: (1) they do not adequately account for the information costs, error costs, and risks of capture that accompany any system premised on flexible and discretionary administrative review, and (2) they overlook the central lessons learned through debates over civil litigation generally about how to balance the conflicting goals of speed, cost, accuracy, and finality. The Article then elucidates how some small changes to our patent system could be used to better solve the problem of bad patents than would other popular proposals. This small number of changes, which are implementable through either case law or statute, would interact to make available a symmetrical risk of fee and cost shifting for bad-faith litigation over patents to encourage parties to exchange information and resolve disputes before getting deeply into expensive litigation. Such an approach would directly address the complaints of patent critics without injecting the degree of unpredictability and political manipulability into the system that would be caused by their proposed changes. It takes seriously the importance to the economy of strong intellectual property rights as well as reforms designed to lessen the negative impact of junk patents and frivolous lawsuits.

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007) (“Leegin”), the Supreme Court completed the erosion of the per se rule against resale price maintenance (“RPM”) that began nearly 100 years prior.  It took only three months, however, for Congress to take steps toward reversing course by introducing the Discount Pricing Consumer Protection Act (“DPCPA”) in October 2007, which sought to legislatively overturn Leegin and mandate a rule of per se illegality in RPM cases.

Read the full piece here.

Economic theory is essential to antitrust law.  It is economic analysis that constrains antitrust law and harnesses it so that it is used to protect consumers rather than competitors.  And the relationship between economics and antitrust is responsible for the successful evolution of antitrust from its economically incoherent origins to its present state.  In my view, which I’ve expressed in greater detail elsewhere, the fundamental challenge for antitrust is one that is created by having “too many theories” without methodological commitments from regulators and courts on how to select between them.  The proliferation of economic models that came along with the rise of Post-Chicago economics and integration of game theory into industrial organization has led to a state of affairs where a regulator or court has a broad spectrum of models to choose from when analyzing an antitrust issue.

Read the full piece here.