Application Of Antitrust Laws Research Articles

The Application of Competition Law to Labour Markets: Some Unresolved Issues

Abstract In recent years, many have wondered about the application of antitrust law in labour markets. This article analyses both the theoretical premises that justify such intervention and the ways in which it should occur. In this respect, the article takes steps from the economic literature on monopsony in the attempt to ensure that the logic that antitrust scholars customarily carry out in relation output markets applies in relation to labour markets as well.

Implementasi Teory Transaction Cost Economics (TCE) Dalam Kebijakan Antitrust Prespektif Islam

In economic studies, Islam lays down fundamental principles that are global in nature. Often competition between business entities is seen as an obstacle for business people, but it is an unavoidable interaction. In competition, imperfect competition behavior often occurs by carrying out monopoly actions. To that end, the government issues an antitrust policy to regulate and promote healthy competition in the economic ecosystem. The application of Theory Transaction Cost Economics (TCE) in antitrust policies is important in order to produce a healthy rule of law. In the Islamic view, this is urgent as an effort to analyze the background and objectives of the company's integration both vertically and horizontally so that errors in the application of antitrust law do not occur.

A Three-Tiered Circuit Split: Why the Supreme Court Was Right to Hear Alston v. NCAA

This article provides a retrospective look at the Supreme Court’s decision to review the NCAA v. Alston antitrust litigation by defining and analyzing a three-tiered circuit split that existed in the courts’ application of antitrust law to NCAA amateurism regulations. Using mixed-methods citation network analysis review, this article shows wide disarray within the NCAA amateurism discrete citation network by analyzing the doctrinal differences in how three distinct jurisdictional silos applied antitrust law to four broad categories of NCAA rules. As such, this article argues that the Supreme Court was correct to grant certiorari to the Alstonpetitioners to resolve this circuit split and better define the precedential effect of the much-debated NCAA v. Board of Regents.

The Causes and Consequences of the Neo-Brandeisian Antitrust Movement in the United States

Abstract The recent appointments of Timothy Wu as Special Assistant to the U.S. President for Technology and Competition Policy and Lina Khan, a member of the U.S. Federal Trade Commission, two prominent advocates for a fundamental shift in U.S. antitrust policy, and the introduction of federal and state legislation to change how antitrust is applied signal a realistic possibility of a fundamental change of direction in the course of U.S. antitrust. The shift advocated by these self-described “Brandeisians” goes beyond the reform proposals advocated by the Post-Chicago School movement. Whereas the Post-Chicago School movement, which was based primarily on industrial organization theory, advocated for change while recognizing the primacy of economic theory in the application of antitrust law, the Neo-Brandeisians argue that economic considerations should only be part of the substantive antitrust analysis and not necessarily the determinative factor. For many Europeans, and in particular Germans familiar with legal history, the ideas advanced by the Neo-Brandeisians will be familiar. Louis Brandeis, whose writings and opinions serve as the intellectual compass of the Neo-Brandeisians, was himself influenced by the Freirechtsbewegung and their skepticism of a wertfreie jurisprudence. Borrowing from post-modernist philosophy, the Neo-Brandeisians recognize that the dominant legal doctrines reflect the prevailing power structures in society. In their view, the fact that U.S. antitrust law relies heavily on economic theory does not allow it to claim value neutrality. The more radical members of this movement consequently argue that other values beyond economics should be considered in the application of U.S. antitrust law by the courts and antitrust agencies. In this article we attempt to introduce this movement to a European audience and assess its possible impact on the direction of U.S. antitrust.

The Application of Antitrust Law to Labor Markets — Then and Now

The Application of Antitrust Law to Labor Markets — Then and Now

The Dilemma of 'Free': Facebook's Monopsony Power and the Need For an Antitrust Renaissance

A significant industry has developed around gathering the information of free-to-use platform users—targeted advertising. This information has granted Facebook much power, not only in that it is one of the most profitable companies in the world, but also that it has perplexed scholarship and the application of antitrust laws to the unfortunate result of endowing free-to-use platforms the freedom from liability to the individuals whose information has been gathered. This article is the first to address the monopsonistic antitrust realities behind the relationship between Facebook and its users concerning the firm’s collection of user data. The confusion behind the relationship is unnecessary. This article provides a clear test to determine whether monopsony (buyer side) or monopoly (seller side) theory is relevant and unequivocally demonstrates that Facebook acts as a buyer of user data; and thus, monopsony theory is the only logical theory to analyze this relationship. Further, the article provides solutions to both Congress and courts in how to adjust to this unique relationship while providing Facebook users with a cognizable claim without overextending courts. The technology and data industries are rapidly developing and changing the basic understandings of how these relationships work under antitrust law. The attempt to fit the relationship between Facebook and Facebook users in the incorrect mold has kept users out of court with claims for antitrust violations. When misapplications close the doors of justice to citizens of the United States, an unacceptable result occurs. This article seeks to identify attainable methods for granting potential plaintiffs redress through an antitrust renaissance by identifying the correct mold this relationship should be viewed under—monopsony.

Competitive Exclusion in Category Captain Arrangements

Category management is a retail practice wherein the products of a retail establishment are divided up into different categories and then managed as if each were a free-standing business. The most popular approach to category management involves outsourcing decisions to a single manufacturer in the category (a.k.a., the “category captain”). Category management and category captain arrangements can benefit competition and consumers where they help to enhance the efficiency and effectiveness of retail decision making. However, given their potential to adversely affect competition and consumers, category captain arrangements have attracted the attention of public policy makers, antitrust enforcement authorities, and marketing and legal scholars. At least two types of competition-related concerns are identified for category captain arrangements. One concern is that a category captain will use its role to coordinate competitor behavior resulting in anticompetitive collusion. A second concern is that a captain will use its role to disadvantage competitors leading to anticompetitive exclusion. This monograph focuses on anticompetitive exclusion. Despite expressed concerns for anticompetitive exclusion involving category captain arrangements research offers surprisingly few insights into the issue. The application of antitrust law to category management also continues to remain relatively undeveloped leaving practitioners with little guidance on what is permissible. Given this state of affairs continued effort is required to better understand the nature and competitive consequences of category management and category captain arrangements. The goal of this monograph is to offer this understanding. Chapter 1 offers an extended introduction to the topic. Chapter 2 describes and elaborates on the nature and practice of category management. Chapter 3 then describes the approach to category management found in category captain arrangements. The key sources of competitive concern for category captain arrangements are identified and elaborated upon in Chapter 4. With the antitrust importance of understanding the power of an organization to harm competition, emphasis and discussion is given to the nature and sources of power and influence held by category captains in Chapter 5. This is followed by Chapter 6 which identifies, organizes and describes the types of exclusionary conduct and practices that may be found in category captain arrangements. Managerial safeguards against competitive exclusion involving category captains are then identified, organized and described in Chapter 7. The effects for competition and consumers that can result from competitive exclusion involving category captains are described in Chapter 8. The findings of empirical research on competitive exclusion in category captain arrangements are then described in Chapter 9. A brief conclusion to the monograph is provided in Chapter 10. The monograph is comprehensively annotated with citations in order to serve as a resource for interested readers.

Mind the Gap: Antitrust, Health Disparities and Telemedicine.

Health inequalities in the United States have been continuously escalating. Numbers speak: In a land of dreams and opportunity, the difference in life expectancy between the wealthy and the poor exceeds close 10 to 15 years. Healthcare disparities have become a key concern for both leaders and policymakers. In the 2001 ‘Across the Chasm: Six Aims for Changing the Health Care System,’ the Institute of Medicine identified equity in healthcare as one of the main goals of health care systems aiming to improve their performance. Since 2000, the Department of Health and Human Services’ Healthy People initiative has also characterized the elimination of health disparities as a central goal. In Healthy People 2020, the stated goal is to “achieve health equity, eliminate disparities, and improve the health of all groups.” Considering the high costs of health disparity, this should not come as a surprise. Among others, these include excessive healthcare expenditures, loss of labor productivity and premature deaths. Nonetheless, health disparities do not only hurt the economy, but, most importantly, our democracy. This is because a healthy electorate is an essential prerequisite for civic participation in a democratic society. Let us consider, for example, the gap in life expectancy between Blacks and Whites in the United States. Black Americans, on average, “die in higher proportions than [W]hites at all ages before their age of life expectancy.” These premature deaths deter them from participating in subsequent elections. The effect of early deaths on political disadvantage is cumulative, “increasingly diluting the political voice of Blacks compared with whites.” Consequentially, as more Black voters’ voices remain unheard, the more the social and economic inequality exacerbates. One of the health reforms aiming to eliminate health disparities in the United States, especially in rural and disadvantaged areas, is telemedicine: a technology driven tool for healthcare delivery designed to increase access to healthcare services. This article critiques the theory that an increase in the use of telemedicine would reduce health disparities and improve health outcomes in disadvantaged geographic areas. I raise three crucial concerns. First, although the use of telemedicine may increase access to healthcare services, it may at the same time harm quality of care by unsafely facilitating the exchange of certain health information and also eroding the trust in the doctor–patient relationship. Second, public health research demonstrates that telemedicine is often associated with poor performance for appropriate antibiotic prescribing for certain diseases, such as acute bronchitis compared with in-person physical examination. Third, telemedicine is often used by high income patients, and not the underserved populations that lack access to healthcare services. Considering the limitations of this novel form of healthcare delivery, I argue that a regulatory intervention is needed to ensure that consumers benefit from this alternative form of diagnosis and treatment. However, some regulatory structures, such as self–regulation, have strengths and competitive weaknesses. Indeed, they may create barriers to the efficient flow of healthcare information and expertise, eliminate competition between healthcare providers and lead to cost increases. In delving into these tradeoffs, this article asks: Can the application of antitrust law in the healthcare sector strike the appropriate balance between the benefits these technology-driven tools bring to society and the need to protect the public safety?

Interpretation and Enlightenment of the Anti-monopoly Judicial Experience on Reverse Payment in the Pharmaceutical Industry in the United States: Focusing on the Judicial Rules

The reverse payment agreement in the pharmaceutical field embodies the game between the innovative protection of drug R&D and the free competition in the pharmaceutical market. The anti-monopoly review carried out on this type of agreement reflects the application competition between drug patent laws and anti-monopoly laws. In American antitrust legal practice of reverse payment in the field of pharmaceuticals, in order to clarify whether the reverse payment agreement has a long-term effect that is unfavorable to competition, in the process of reviewing the illegality of reverse payment, we find that per se illegal rule, rule of reason, quick look rule and Scope of the Patent test have constituted the main rules for the antitrust review of the reverse payment agreement nowadays. However, no unanimous conclusion has been reached on this issue. On the one hand, this is due to the issue of the competing application of patent laws and anti-monopoly laws in reverse payment behaviors, which makes the value selection not easy. On the other hand, this is also based on the fact that different courts of the court, especially different federal circuit courts, enjoy greater autonomy in the choice of rules. The review of the judicial experience in the United States, in addition to providing relevant information, is more to provide useful lessons for the next step in the healthy and orderly development of China’s pharmaceutical market, especially the generic market. The selection of the judicial experience in the United States is based on the following factors. First, the selection of the U.S. experience as the object of investigation is determined by its world leading position in the application of antitrust laws, the development and application of the pharmaceutical industry, and its patent specifications. Second, the selection of the U.S. experience is related to the differences in the focus of antitrust enforcement mechanisms in the United States, and the European Union and its major countries. Third, the anti-monopoly review focused on reverse payment in the pharmaceutical field shows a competition and a value selection between the application of anti-monopoly laws and the application of patent laws of medicines essentially. It is difficult to draw on a fair and efficient judgment to rely on administrative agency alone. Strengthening a judicial supervision and review, or establishing a third-party review mechanism, may be a realistic and effective move. At present, the implementation of anti-monopoly laws in China is basically normal, and it is on the way to achieving specialization and refinement. The innovation protection and the competitive incentives in the pharmaceutical industry are an important part of the entire market competition law and its implementation system. The relevant institutional mechanisms need to be improved and the practice process must be promoted in an orderly manner. Taking the anti-monopoly review of reverse payment as a breakthrough point, combining the extraterritorial experience with our country’s reality, and ensuring and satisfying people’s drug demands as the fundamental starting point, we should pay full attention to the balance between drug innovation protection and free competition. As the basic rule of anti-monopoly review of reverse payment, the rule of rebuttable illegality presumption provides both parties with full defense opportunities and encourages innovative development and free competition in the pharmaceutical sector with a sound system. Finally, it is worth emphasizing that China and the United States have different legal environments. It is hard to say that a specific experience and practice of the United States can directly apply to China. However, while investigating the U.S. experience, it is worthwhile to take seriously the cultivation and training of ideas and methods for thinking about similar issues. Specific to the anti-monopoly review of reverse payment, the problem of the value selection between drug patent innovation protection and market free competition, it is a good idea to use third-party evaluation platforms and operational mechanisms similar to the court and its judicial review mechanisms. This is not only conducive to the substantive solution to the problem, but also conforms to the design advocacy for the establishment and development of the third-party public service platforms from the top political level, and can effectively implement the landing.

Taking it to the Limit: Shifting U.S. Antitrust Policy Toward Standards Development

In November 2017, U.S. Assistant Attorney General Makan Delrahim, chief of the Department of Justice (DOJ) Antitrust Division, gave a speech at University of Southern California provocatively entitled “Take it to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law”. In this speech, Mr. Delrahim announced a new DOJ policy approach to the antitrust analysis of collaborative standard setting and standards-development organizations (SDOs) -- the trade associations and other groups in which industry participants cooperate to develop interoperability standards such as Wi-Fi, Bluetooth, 4G and 5G, USB and the like. He explained that the DOJ had “strayed too far” in its focus on single firm conduct concerning standards, particularly the assertion of patents essential to the implementation of standards in technology products (“standards-essential patents” or “SEPs”), and that antitrust authorities should be more concerned with potential collusion by competitors within SDOs (i.e., an apparent shift in doctrinal focus from unilateral conduct under Section 2 of the Sherman Act to concerted action under Section 1 of the Sherman Act). One commentator described the DOJ policy shift announced by Mr. Delrahim as “a 180 degree turn” on SEP issues. The new policy also seems to put the enforcement priorities of the Antitrust Division at odds with those of the other principal U.S. antitrust enforcement agency, the Federal Trade Commission (FTC) and jeopardizes reliance of a long line of DOJ Business Review Letters outlining acceptable approaches to conduct such as forming patent pools. This article analyzes the contours of the emerging divide among U.S. antitrust agencies, as well as reactions to the “Take it to the Limit Speech” by industry, academics and Mr. Delrahim’s subsequent public statements.

Antitrust Regulation of Intellectual Property Rights in China

This article reviews the practice of competition agencies, including NDRC, Mofcom and SAIC, and courts in China regarding the application of antitrust law to intellectual property rights related anti-competitive conduct. It covers all the cases and regulations coming out after the adoption of China's Anti-monopoly Law. Although China has progressed considerably in this domain, there are still some imperfections.

The Implied Antitrust Immunity

In 1963, Richard Posner, then Justice William Brennan’s motivated clerk, drafted for the Supreme Court the iconic United States v. Philadelphia National Bank (“PNB”) decision. Addressing a set of issues in antitrust and regulation, Posner introduced several important doctrinal innovations and clarifications. Among others, PNB emphasized the primacy of competition over regulation and framed the implied antitrust immunity as a clear antitrust presumption: “Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored.”The logic of the implied antitrust immunity has not changed much since its early days: the doctrine’s primary rationale is the elimination of conflicts between administrative agencies and federal courts. Over time, however, the immunity’s narrative and nature have considerably transformed. Born in the late nineteenth century as an application of the presumption against implied repeals, in PNB, the doctrine turned into an independent antitrust presumption. During the past five decades, the doctrine has transformed into an evaluative framework whose underlying premises tilt its outcomes toward preclusion of antitrust law.The implied immunity doctrine is exceptionally important because it gives antitrust courts the power to preclude the application of antitrust law and influence national competition policy without meaningful a consideration of tradeoffs. Indeed, the doctrine is frequently invoked in courts. Yet, the doctrine has always been murky and confusing. This Article studies and clarifies the operation and applications of the implied immunity, as well as its structure, premises, and flaws.

THE ANTITRUST CONSUMER WELFARE PARADOX

“Consumer welfare” is the only articulated goal of antitrust law in the United States. It became the governing standard following the 1978 publication of Robert Bork's The Antitrust Paradox. The consumer welfare standard has been instrumental to the implementation and enforcement of antitrust laws. Courts believe they understand this standard, although they do not bother to analyze it. Scholars hold various views about the desirable interpretations of the standard and they selectively use random judicial statements to substantiate opposite views. This article introduces the antitrust consumer welfare paradox: it shows that, under all present interpretations of the term “consumer welfare,” there are several sets of circumstances in which the application of antitrust laws may hurt consumers and reduce total social welfare. This article shows that, when Bork used the term “consumer welfare,” he obscured basic concepts in economics. This article clarifies that the antitrust methodology permits only surplus analysis and does not accommodate welfare analysis. It explains the conceptual differences between the terms “surplus” and “welfare” and the relevant implications. This article further explains the differences between two other competing standards—“consumer surplus” and “total surplus”—that presently serve as proposed interpretations for the term “consumer welfare.” Each interpretation has some limitations and the necessary analytical progress calls first for conceptual clarity. This article argues that whatever good ends the “consumer welfare” phrase may have once served, antitrust law should now lay it to rest.

Vertical Restrictions: Development of Theory, Antitrust Legislation and Enforcement

The article examines the interpretation of vertical restraints in Chicago, post-Chicago and New Institutional Economics approaches, as well as the reflection of these approaches in the application of antitrust laws. The main difference between neoclassical and new institutional analysis of vertical restraints is that the former compares the results of their use with market organization outcomes, and assesses mainly horizontal effects, while the latter focuses on the analysis of vertical effects, comparing the results of vertical restraints application with hierarchical organization. Accordingly, the evaluation of vertical restraints impact on competition differs radically. The approach of the New Institutional Theory of the firm seems fruitful for Russian markets.

Economics and the ‘nonsense’ of law: the case of the Chicago antitrust revolution

The Law and Economics movement that emerged in the University of Chicago through the 1940s and 1950s, around Ronald Coase's example, is a manifestation of the neo-liberal project of applying neo-classical economics to state sovereignty. In the 1970s and 1980s, Law and Economics ideas revolutionized the application of antitrust laws in the United States. However, this achievement came about not through a transformation in economic orthodoxy, but through persuading legal experts to recognize the inherent ‘nonsense’ at work in their own normative assumptions. The Chicago antitrust revolution is therefore symptomatic of trends that Foucault viewed as definitive of neo-liberalism more broadly.

Competition–regulation interface in telecommunications: What’s left of the essential facility doctrine

The essential facility doctrine lies at the core of telecoms regulation since its very first steps in the United States and in the European Union. Later, the doctrine spread around the world and currently stands as a key pillar of the liberalization efforts underway in several countries. However, the concept of essential facility is a very dynamic one in the telecoms field, which makes it hard for regulators and regulated stakeholders to strike the right balance between incentives to invest in new infrastructure and securing access-based competition in the short run. Experiment such as the “stepping stones” approach in the US and the “investment ladder” approach in the EU have led to very mixed results, in the US, the FCC eventually abandoned this approach to stimulate investment in new high-speed infrastructure through “access holidays”. The decline of the essential facilities doctrine in the US was not echoed by any relaxation of regulatory obligations in the EU, Canada and other countries, to the contrary, the US now seems likely to reconsider the essential facilities doctrine, at least in the application of antitrust law. Whether this will lead to a revival of the doctrine in the US and around the world, especially for next generation access networks, remains to be seen. The paper argues that interpreting the concept of essential facilities too broadly is likely to lead to insufficient incentives to invest in the future, it is thus advisable to get back to a narrow interpretation of this doctrine, in order to strike the right balance between the incentives to engage in infrastructure-based competition and the goal of boosting service-based competition in the short-term. Several debates that are currently raging around the world—including the debate over NGA deployment and the net neutrality querelle—are likely to be affected by the essential facilities doctrine in the years to come.

International Signals: The Political Dimension of International Competition Law Harmonization

The article, written jointly by a law professor and political science professor, endeavors to explain why the United States is particularly resistant to various efforts at international harmonization of antitrust law. While others have wrangled with this question over the years, none has assessed the question from within the broader political framework in which all relations between nations exist. Our article endeavors to fill this intellectual gap.Existing efforts to describe or explain the lack of international harmonization have generally focused on the direct economic effects, and the narrow political difficulties, of the harmonization of competition laws through certain international mechanisms, most notably the WTO and the OECD. Largely absent in these accounts is a background theory of international politics against which the practicalities – and the ultimate desirability – of international competition law harmonization can be assessed. Our article presents such a theory. It places the conflict over international competition laws within the larger framework of international relations, and in so doing draws out some novel and important implications of the debate.An important insight of this Article is that, largely independent of the economic calculus regarding the costs and benefits of entering into a multilateral international antitrust agreement, there is an inherent “transaction benefit” in the act of engaging in political exchange between states. Traditional economic and legal analyses of international relations have focused largely on the choice of organizational form (market exchange (no explicit agreement) versus bilateral versus multilateral institutions) and the likelihood and nature of compliance with each type in the absence of a central enforcement authority. By contrast, we strive here to develop a political theory of international law which accounts on the one hand for the costs of entering into international agreements, but also accounts for the state’s political preference for a specific form of agreement. The novel implication of this understanding is that, by crafting international agreements in which the other parties are made to alter their domestic institutions as a condition of agreement, the dominant state (here, the United States) receives a credible commitment from the other state as to its willingness to adhere to the terms of the specific agreement under negotiation which, in the absence of centralized enforcement, might not otherwise be forthcoming. Additionally, the alteration of domestic institutions in a manner directed by the dominant state will in and of itself be viewed as a benefit of the agreement. By facilitating domestic normative change, the dominant state will gain a measure of transformative power from the change of domestic institutions. As a result, nations derive political benefits from international agreements in a way that transcends the substance of the agreements themselves.The process of internationalizing and harmonizing competition law provides fertile ground in which to examine these ideas. Negotiations over antitrust policy are particularly important because as government barriers to trade have fallen they may well be replaced by private barriers. At the same time, as tariff barriers to trade have fallen, governments may resort to the discriminate application of antitrust law to maintain preferred local monopolies, and therefore to make payoffs to politically important constituents. The prospects for the illiberal application of antitrust laws and their economic importance make the debates over their form an issue of abiding concern for the process of global economic liberalization.

The Perils of Antitrust Proliferation - The Process of 'Decentralized Globalization' and the Risks of Over-Regulation of Competitive Behaviour

The Perils of Antitrust Proliferation - The Process of 'Decentralized Globalization' and the Risks of Over-Regulation of Competitive Behaviour

Labor Market Restraints by U.S. Sports Leagues and The Application of Antitrust Law

Labor Market Restraints by U.S. Sports Leagues and The Application of Antitrust Law

Two Tales of Bundling: Implications for the Application of Antitrust Law to Bundled Discounts

The economic literature on bundling has made many theoretical advances. However, several omissions reveal themselves. The advances have largely been on the theoretical side. These models contain restrictive assumptions regarding the existence of monopoly in some markets, and the nature of rivalry in others. The models generally ignore obvious and ubiquitous reasons firms may use bundled discounts. These models have not been subject to robustness checks, nor have their assumptions been tested empirically. As a result, the literature that shows the possibility of anticompetitive harm does not provide a reliable way to gauge whether the potential for harm would outweigh any demonstrable benefits from the practice. As a result of the underdeveloped nature of the literature, simple rules that result in extreme tradeoffs between type I and type II errors may dominate more complex tests that attempt to differentiate procompetitive from anticompetitive behavior. Such complex tests may work well within the confines of a theoretical model, but not when applied to firms in actual antitrust cases. Improving the reliability of more complex tests for anticompetitive behavior will require economists to expand their understanding of both the anticompetitive and procompetitive reasons firms engage in bundling. This will entail studying the reasons bundling is adopted by firms without market power, relaxing the assumption of monopoly in theoretical models, and generating testable hypothesis and the data to test them.