Richard Steuer ‘The Horizons of Antitrust’ (2017) St. John’s Law Review 91 Article 5

This article – which can be found here – discusses the goals of antitrust under US law. The paper is structured as follows: (i) it reviews the classic goals of US antitrust (past and present); (ii) it provides an overview of the recent political prominence of antitrust in US political debate, and how this has been leaking into academic discussions on antitrust; (iii) it conducts a short overview of the variety of goals of antitrust as found in multiple jurisdictions across the globe; (iv) it identifies a number of possible goals to be adopted by US antitrust in addition to consumer welfare, including fighting economic concentration, promoting jobs, protecting SMEs, and advancing the national interest; (v) it identifies how these goals may be taken into account within an antitrust framework, particularly in the context of long-term consumer welfare. In the alternative, it discusses how such goals may be implemented through political interventions that override antitrust rules. The paper does not contain…

David Gerber ‘Competition Law: Convergence in Uncertainty are We Where We Thought We Were?’

This paper – which you can find here – focuses on the international convergence of competition law. Global convergence has been a central theme in competition law for more than two decades. Until recently, the trend seemed to be for greater convergence; given recent developments, however, should we expected this trend to hold? The author’s analysis begins from the observation that convergence has been driven by:  (1) continuing political stability and transnational engagement in Europe and the US, (2) the capacity and willingness of the US and Europe to lead competition law developments elsewhere; and (3) the willingness of others to accept the EU and US’ leadership in competition law. These elements have all  been under attack recently. Both the political stability and transnational engagement of Europe and the US are not what they used to be; the same can be said about their capacity (if not willingness) to lead competition law developments across the world; and, importantly, the willingness…

Ramsi Woodcock ‘The Antitrust Duty to Charge Low Prices’(Forthcoming) Cardozo Law Review

This paper – which can be found here – argues that antitrust, when fostering consumer welfare, should develop a mechanism to address excessive prices. It is held that, while antitrust says its goal is to promote welfare, in reality it has been devoted merely to promoting competition that can increase consumer welfare: “There is a gap, therefore, between antitrust’s means of prohibiting collusion and exclusion, but not high prices, and its end of promoting consumer welfare”. If the goal to foster consumer welfare is to be taken seriously, then forcing companies with market power to adopt lower prices:  “is fully in line with the goal of maximizing welfare in the economic sense that antitrust has embraced starting in the 1970s under the influence of the Chicago School.”  (Yes, I can hear Robert Bork rolling in his grave). The author advances his proposal sequentially. It begins by discussing the gap between antitrust ends and means that opened up when antitrust replaced…

Jeffrey Harrison ‘Some Inconvenient Truths About Antitrust Law and Economics’ University of Florida Levin College of Law Research Paper No. 17-1

This paper – which can be found here – is yet another attack on the current foundations of antitrust and one more call for a more interventionist antitrust. The reason why I circulate it here is that this is not the typical paper of antitrust enforcement practice – which tends to argue that antitrust should go beyond its focus on consumer / total welfare and look at other criteria, such as market structure, competitive process or what have you. Instead, the attack is on the very foundations of consumer welfare or efficiency as suitable standards for antitrust analysis. The paper begins by identifying  three goals– consumer surplus, allocative efficiency, and productive efficiency – which are commonly put forth as being the basis of antitrust. It then proceeds to attack each in turn. Regarding consumer surplus, the main question is whether it – i.e. consumer surplus understood in terms of prices and quantities – bears any relationship to actual welfare. Part of this…

Michael A. Carrier and Carl J. Minniti III ‘Biologics: The New Antitrust Frontier’ (2018) University of Illinois Law Review 1

This paper – which can be found here – can be read together with the paper on biologics that was reviewed here. Biologics differ from small-molecule drugs along multiple axes. They are more expensive, costing hundreds of millions of dollars to develop. They also cannot be precisely replicated. As a result, they are likely to present different challenges than chemical generics. This article develops an antitrust framework for the problematic conducts most likely to arise. Part I provides a primer on biologics, offering a brief history before focusing on the relevant science and markets. In a nutshell, the pharmaceutical industry consists of small-molecule drugs and biologics. A biologic is a large, complex molecule derived from a living organism, most commonly a protein. Through an intricate manufacturing process, biologics are harvested in genetically modified cell lines and purified through complex, lengthy procedures. For most of the twentieth century, innovation resulted in small-molecule therapies in the form of compounds produced through chemical synthesis, up…