Herbert Hovenkamp ‘Antitrust and Information Technologies’ 2017 Fla. L. Rev. 68 419

This is a polished version of a lecture given by Hovenkamp last year, and it can be found here.  As the name indicates it provides an overview of “the relationship between competition policy and the technologies of information.” A first section looks at the relationship between digital technology and market power. In particular, digital technology affects the way firms exercise market power and also creates serious measurement difficulties. A pervasive problem in analysing power in digital markets is that sellers typically have a very high ratio of fixed to variable costs. This entails that prices must be considerably above short-run marginal cost to be profitable. As a result of this, many traditional measures of market power produce unacceptable false positives. These measures include the Lerner Index and other tools derived from it, but are not limited to them: “None of the antitrust tools for assessing power is particularly sensitive to the presence of fixed costs”. He thus concludes that antitrust…

Simcha Barkai ‘Declining Labor and Capital Shares’

In this paper,  the author argues that the decline in the labour share of the economy has not been offset by an increase in the capital share in the US. Over the last 30 years we have witnessed a large decline in the labour share of gross value added. There have been many explanations advanced for this – such as technological change, mechanization, capital accumulation, changes in the relative price of capital, trade-offs between labour and capital – in which  the decline in the labour share is offset by an increase in the capital share. The author disputes this view, and argues that instead there has been a large increase in the profit share in the U.S. non-financial corporate sector over the last 30 years. The paper begins with a review of the literature on the decline of the labour share, and describes how that literature tends to explain that this decline has been off-set by an increase in the capital…

Jan De Loeckery and Jan Eeckhout ‘The Rise of Market Power and the Macroeconomic Implications’ (2017) NBER Working Paper No. 23687

In this paper – which can be found here – the authors look at a number of issues that have become a staple of the macro-economic literature of late (i.e. the economy is experiencing a fundamental long term change which manifests itself in a number of trends such as declining labour shares, declining wages, declining labour force participation, slowdown in labour market dynamism, decreased job mobility, lower migration rates, and lower growth). They  argue that while many explanations have been proposed for each of these secular trends, all these developments are consistent with one common cause that hitherto has remained undocumented:  the rise in market power since 1980. After the introduction – where the argument is very clearly outlined – the paper is structured as follows: In Section 2, they explain why mark-ups are an important measure to identify market power in this context. They also identify the data sources and develop an empirical framework to identify industry mark-ups. The…

David Autor, David Dorn, Lawrence F. Katz, Christina Patterson, and John Van Reene “The fall of labour share and the rise of superstar firms” NBER Working Paper No. 23396

This paper – which can be found here – focuses on the “fall of labor’s share of GDP in the United States and many other countries in recent decades”. Why does this matter for competition law and policy? Because this phenomenon seems to be associated with the rise of “super-star” firms and increased market concentration – something that we kind of take for granted in the digital sector, but not necessarily elsewhere. The paper starts by noticing that, while there is a consensus that the labour share has been declining over the past few decades, there is a lively debate on what are the causes of this recent decline. The two main likely culprits are: (i) the fall in the cost of capital relative to labour; (ii) trade and international outsourcing – i.e. labour shares have declined the most in industries that were strongly affected by increasing imports (e.g., from China). However, the authors argue that none of these explanations…

Herbert Hovenkamp ‘Antitrust Policy and Inequality of Wealth’ (2017) CPI Antitrust Chronicle, October, at 1

This paper – which can be accessed here – begins from the observation that antitrust law unquestionably has consequences for the distribution of wealth. Rigorous antitrust enforcement can make price-fixers and monopolists worse off while benefiting their customers (or, sometimes, their competitors). However, the redistributive consequences of competition law are limited. As such, the question is: why would one want to use antitrust as a wealth distribution device when far more explicit statutory tools are available for that purposes, including tax law, minimum wage laws, welfare laws, etc.? Hovenkamp advances a number of possibilities: (i) given its reliance on vague and open standards, antitrust allows one to use the judicial or administrative process without having to obtain legislative permission; (ii) a good deal of literature suggests that competitive markets are conducive to a more even distribution of wealth. To the extent this is true, we might use antitrust to equalize wealth distribution simply by making markets more competitive – but…

Angela Daly ‘Beyond Hipster Antitrust:  A Critical Perspective on the European Commission’s Google Decision’ (2017) European Competition and Regulation Law Review 1(3) 188

The argument of this article – which can be found here – is straightforward: “competition law as it stands is not well-equipped to address (all of) the problems a very large concentration of private power such as Google poses to Internet users. However, unlike the ‘antitrust hipsters’, it is argued that reform to competition law is insufficient – other areas of law and regulation may be more appropriately employed to ensure user autonomy in these circumstances.” The paper begins with an extremely cursory analysis of the Commission’s decision in the Google case. Since the decision is not yet published, the paper relies on comments from the Competition Commissioner that there was an abuse because Google: “promoted its own comparison shopping service in its generic search results, and demoted the results of its competitors, with the effect that competitors were ‘denied… the chance to compete on the merits and to innovate’ and European consumers were ‘denied… a genuine choice of services…

Barak Orbach ‘Antitrust Populism’ (2017) NYU Journal of Law & Business 14(1) 1

This paper – which can be found here – identifies an old native Populist strain in American thought, which: “identifies virtue with the small local businessman and evil with the banks, the railroads, and big corporations.“  The goal of the paper is to question: “the antitrust tradition of associating populism with sympathy for small businesses and fear of bigness, (…) explain the mechanisms of populism in antitrust, and emphasize the anti-intellectual nature of the phenomenon.” A first section seeks to define populism in antitrust: “Studies of “populism” identify the phenomenon as a confrontational political strategy that seeks to challenge and disrupt the existing social order by solidifying and mobilizing the animosity of the “people” toward the “corrupt elites” and the “establishment”. (…) Two common characteristics of populism are nationalism and anti-intellectualism.” Looking more specifically at antitrust, populism is first described as an instantiation of these trends as regards competition rules. Antitrust populist is said to have two prominent facets, which for…

Herbert Hovenkamp ‘Antitrust and Innovation: Where Are We and Where Should We Be Going’ (2011) Faculty Scholarship 1832

This old paper – which can be found here – deals with a constant concern in Hovenkamp’s work, namely the interaction between IP and antitrust. He notes that: “The primary purpose of antitrust law is to promote competition. However, both antitrust law and intellectual property law for large parts of their history have worked so as to undermine innovation competition by protecting too much. Antitrust policy often has reflected exaggerated fears of competitive harm and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the intellectual property laws have often undermined rather than promoted innovation by granting intellectual property holders rights far beyond what is necessary to create appropriate incentives to innovate.” Given this, what should antitrust’s stance be as regards innovation in general, and IP in particular? Hovenkamp offers “a few principles for antitrust analysis in innovation-intensive markets, particularly those claims that involve the exercise of patent rights.”…

Jan De Loeckery and Jan Eeckhout ‘The Rise of Market Power and the NBER Working Paper No. 23687

The authors of this paper – which can be found here – look at a number of issues that have become a staple of the macro-economic literature of late (i.e. the economy is experiencing a fundamental long term change which manifests itself in a number of trends such as declining labour shares, declining wages, declining labour force participation, slowdown in labour market dynamism, decreased job mobility, lower migration rates, and lower growth) and argue that, while many explanations have been proposed for each of these secular trends, all these developments are consistent with one common cause that hitherto has remained undocumented:  the rise in market power since 1980. After the introduction – where the argument is very clearly outlined – the paper is structured as follows: In Section 2, they explain why mark-ups are an important measure to identify market power in this context. They also identify the data sources and develop an empirical framework to identify industry mark-ups. The…