Antitrust & Competition Policy Blog

Spulber and Yoo on Trinko

Posted by D. Daniel Sokol

Trinko is one of the most important antitrust decisions of recent years.  Daniel Spulber of Northwestern University's Kellog School of Management and Christopher Yoo of Vanderbilt Law School examine Trinko and apply its meaning to the current debate on net neutrality issues in their working paper entitled Mandating Access to Telecom and the Internet: The Hidden Side of Trinko.

Abstract: Antitrust has long played a major role in telecommunications policy, demonstrated most dramatically by the equal access mandate imposed during the breakup of AT&T. In this Article we explore the extent to which antitrust can continue to serve as a source of access mandates following the Supreme Court's 2004 Trinko decision. Although Trinko sharply criticized access remedies and antitrust courts' ability to enforce them, it is not yet clear whether future courts will interpret the opinion as barring all antitrust access claims. Even more importantly, the opinion contains language hinting at possible bases for differentiating among different types of access, in contrast to previous analyses, which have generally grouped all of the forms of access into a single category. We build upon this language to offer an analytical framework, based on a branch of mathematics known as graph theory, that captures the manner in which different components of network can interact with one another as part of a complex system. Our analysis  also offers a basis for classifying the different types of access into five categories: retail, wholesale, interconnection, platform, and unbundled. We then employ this framework to analyze a range of policy and doctrinal issues, including the current debate over network neutrality.

50 Years Later: Is Less EU Competition Policy Better?

Posted by D. Daniel Sokol

Valentine Korah of University College London provides her thoughts on 50 years of competition policy in the EU here (free registration required).  Korah notes a pattern of decreasing competition policy intervention.

Korah makes a number of interesting points.  One insight in particular on the current state of Article 82 stands out.  Korah writes, "The old views on Article 82 are still accepted by the courts, although the views are now controversial. The Commission is trying focus on avoiding consumer harm, and analyzing the direct or indirect effects on consumers of conduct alleged to be abusive. There is a huge dispute between those influenced by the German school of Ordo Liberals, interested in competition as an institution and the protection of competitors, on the one hand, and those influenced by developments in the USA and concern for efficiency." 

Are we in fact seeing the Americanization of Article 82?

International Competition Network in Action

Posted by D. Daniel Sokol

The International Competition Network (ICN) has, in my estimation, been the most important and effective international antitrust institution for norm creation and implementation since its creation in 2001.  Two ICN events are coming up in the near term that are worth noting. 

As posted on the ICN website, "The Irish Competition Authority and the UK Office of Fair Trading will be hosting an ICN Mergers Workshop on Substantive Issues in Merger Review to be held on April 12th-13th, 2007, in Dublin, Ireland. The Workshop is aimed at case handlers of competition authorities and it is intended to promote the outputs delivered by the ICN Merger Investigation and Analysis Subgroup over the last two years."

The ICN annual meeting conference website is now up, here.  The meeting will be in Moscow.  As documents become final, they will be posted on the conference website.  The conference agenda is exciting and is available here.  I have been involved with the inputs of a number of subgroups and think that this conference and materials will be excellent.  As noted earlier, due to the upcoming birth of our second child, my wife has forbidden my travel in May and June so I will not attend the conference.  We will try to get someone to report from the conference for the blog.

Comparative Perspectives on Multi-Jurisdictional Antitrust Enforcement

Posted by D. Daniel Sokol

The Centre for Competition Policy at the University of East Anglia will hold its annual summer conference from June 14-15.  This year's theme is Comparative Perspectives on Multi-Jurisdictional Antitrust Enforcement.  You can find more conference information here.

Speakers include:
Professor Stephen Calkins (Wayne State University); Firat Cengiz (CCP, University of East Anglia); Professor Andrew Gavil (Howard University); Dr. Michael Harker (CCP, University of East Anglia); Professor Scott Hemphill (Columbia University); Professor William Kovacic (FTC); Dr. Philip Marsden (BICL); Professor Stephen Wilks (Exeter University).

Bargaining Over Remedies in Merger Regulation

Posted by D. Daniel Sokol

Merger remedies are a critical issue in any given jurisdiction, yet one that is underplayed in the academic literature.  Adding to the literature on EU merger remedies is a working paper by Bruce Lyons and Andrei Medvedev of the Competition Centre of the University of East Anglia entitled Bargaining Over Remedies in Merger Regulation.

ABSTRACT: This paper provides a first attempt to understand how outcomes are determined by the standard institutions of merger control. In particular, we focus on the internationally standard 2-phase investigation structure and remedy negotiations of the form practiced by the EC. We find that there are inherent biases in remedy outcomes, and identifiable circumstances where offers will be excessive and where they will be deficient. In particular, we find clear circumstances in which firms offer excessive remedies, which goes against a possible intuition that firms should expect to extract an information rent for possessing superior information about competition in the market.

The intersection of competition law and IP in Europe

Posted by D. Daniel Sokol

Ioannis Lianos, Associate Executive Director of the Jevons Institute of Competition Law and Economics at the Faculty of Laws of the University College London recently wrote on the interaction between competition law and IP in Europe (defending a regulatory theory of IP). The article is based on a lecture he gave last year at the Centre for European Legal Studies, University of Cambridge and has been published at the 8 Cambridge Yearbook of European Legal Studies (2006) 153.

Download Competition_law_and_intellectual_property_rights_article.pdf

The Jevons Institute of Competition Law and Economics's forthcoming conference on May 10, 2007 is on the topic of competition law and its interface with IP.

TOP 10 Most Downloaded Papers for Antitrust Law & Policy

Posted by D. Daniel Sokol

TOP 10 Papers for Antitrust Law & Policy
February 3, 2007 to April 4, 2007

1. The European Commission's 2006 Guidelines on Antitrust Fines: A Legal and Economic Analysis
Wouter P.J. Wils,
European Commission - Directorate General for Legal Service,

2. Antitrust
Louis Kaplow, Carl Shapiro,
Harvard Law School, University of California, Berkeley - Economic Analysis & Policy Group,

3. Drug Patent Settlements Between Rivals: A Survey
C. Scott Hemphill,
Columbia University - Columbia Law School,

4. Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age
D. Daniel Sokol,
University of Wisconsin Law School,

5. Beyond Schumpeter Vs. Arrow: How Antitrust Fosters Innovation
Jonathan B. Baker,
American University - Washington College of Law,

6. Priceless? The Competitive Costs of Credit Card Merchant Restraints
Adam Levitin,
Georgetown University - Law Center,

7. Arbitration of Antitrust Claims in the United States and Europe
Niccolò Landi, Catherine A. Rogers,
Santa Maria Law Firm, University of Bocconi - Institute of Comparative Law,

8. Antitrust Process and Vertical Deference: Judicial Review of State Regulatory Inaction
Jim Rossi,
Florida State University College of Law,

9. Discovering Cartels: Uncovering Dynamic Interrelationships Between Criminal and Civil Antitrust Investigations
Vivek Ghosal,
Georgia Institute of Technology - School of Economics,

10. Priceless? The Social Costs of Credit Card Merchant Restraints
Adam Levitin,
Georgetown University - Law Center.

The Law and Economics of Innovation

Posted by D. Daniel Sokol

THE REGULATION OF INNOVATION AND ECONOMIC GROWTH

Friday, May 4, 2007
9 a.m.-4:00 p.m.

George Mason University School of Law
Arlington, Virginia

http://innovationforum.gmu.edu

The George Mason University School of Law and Microsoft Corporation announce the first in an annual series of conferences on The Law and Economics of Innovation. The series will bring together leading academics to present and discuss new scholarship touching on diverse aspects of a key question affecting the technology industry and the process of innovation. Each conference will conclude with a roundtable discussion among top technology industry representatives and regulators to begin to assess the concrete implications of the scholarship for the development of innovative industries.

The inaugural conference in the series, to be held on Friday, May 4th at George Mason University School of Law, will address the complex problem of regulation and how regulation fosters or impedes economic growth through innovation: How should a jurisdiction, particularly an emerging or developing economy, approach its IP or its antitrust regime if it seeks to maximize economic growth to optimize the role of innovation in growth?

REGISTRATION:

Registration is free of charge but space is limited. To register, click here.

CONFERENCE PROGRAM:

8:30am   Registration & Welcome Coffee
9:00am   Welcome Remarks
9:15am   Keynote Address:  Robert D. Cooter, University of California at Berkeley School of Law

9:45am   Panel 1:  Some Economics of Innovation
              - Marco Iansiti, Harvard Business School
              - Stan J. Liebowitz, University of Texas/Dallas School of Management
              - Stephen E. Margolis, North Carolina State College of  Management
              - Moderated by Bruce H. Kobayashi, George Mason School of Law

11:00am  Panel 2:  Regulatory Reform
              - Howard A. Shelanski, University of California at Berkeley School of Law
              - Douglas G. Lichtman, University of Chicago Law School
              - Moderated by Randal Picker, University of Chicago Law School

12:00pm  Lunch in the Atrium

1:00pm   Panel 3:  Antitrust, Innovation and Economic Growth
              - Daniel F. Spulber, Kellogg School of Management
              - Keith N. Hylton, Boston University School of Law
              - Joshua D. Wright, George Mason School of Law
              - Moderated by Jonathan B. Baker, American University Washington College of Law

2:45pm   Industry/Regulator Roundtable Discussion
              - Gerald F. Masoudi, Deputy Assistant Attorney General, Department of Justice, Antitrust
                Division
              - David A. Heiner, Vice President and Deputy General Counsel, Antitrust Group, Microsoft
                Corporation
              - Others TBD
              - Moderated by Ronald A. Cass, Dean Emeritus, Boston University School of Law

4:00pm   Closing Reception

Is Antitrust Moral?

Posted by D. Daniel Sokol

What role, if any, should morality play in antitrust?  This is an underexplored question that is the theme of a new working paper by the Maurice Stucke of the DOJ Antitrust Division entitled Morality and Antitrust.

Abstract: Although the Sherman Act was enacted over a century ago, antitrust enforcers, policy makers, and scholars have largely circumvented the morality of antitrust crimes. Its absence is remarkable given the vigorous debate over the appropriate civil and criminal penalties for antitrust violations. Under the continued influence of the Chicago-school's neoclassical economic theories, antitrust analysis is primarily concerned with economic efficiency. Since terms like morality and evil are judgmental, not descriptive, they are deemed outside the discourse of economic theory's self-described positivism. But antitrust analysis is not beyond the judgmental. Over the past thirty years, while antitrust's civil remedies have remained relatively unchanged, the criminal penalties for price fixing, bid rigging, and other Sherman Act antitrust violations have soared - from a misdemeanor to a felony punishable by up to ten years imprisonment. If the criminal laws reflect society's moral judgments, then antitrust and morality ultimately are intertwined. This article provides a background of antitrust violations and the flawed economic theory of optimal deterrence that has played a critical role in shaping the criminal sanctions for Sherman Act violations. Despite the escalation in antitrust's criminal penalties, there is no clear evidence that optimal deterrence has been achieved. The article next introduces morality and asks what role morality could play in the field of antitrust, if optimal deterrence alone is insufficient to effectively deter violations. After examining under a three-part standard whether antitrust crimes can indeed be deemed immoral, the article weighs some of the benefits and risks of supplementing antitrust crimes with a moral component and the risks of the current course - namely, ignoring morality. 

AMC Report is Out

Posted by D. Daniel Sokol

The Antitrust Modernization Commission Report is out.  You can link to the 540 page report here.  Because of its length, I have not begun to analyze it.  The much shorter press release is available here.