Thibault Schrepel ‘A New Structured Rule of Reason Approach For High-Tech Markets’

This paper attacks, the assumption that a number of practices in high tech markets should be presumed to be legal. It was published in the Suffolk University Law Review, and can be found here. It seeks to build on Easterbrook’s framework for designing efficient antitrust rules, and to develop a structured rule of reason framework that could apply to the new economy.  It does this by: (i)  distinguishing between per se rules and rule of reason standards; (ii)  reviewing the arguments for and against the adoption of per se rules, in order to explain why per se rules are not appropriate for high tech markets; (iii) lastly, developing an approach that replaces per se rules with an “administrable” structured rule of reason applicable in innovation and high tech markets whenever “the practice has not proven to be pro-competitive in every case”. The paper provides a decent overview of the discussion about rules and standards in antitrust. Further, it makes one…

Louis Kaplow ‘On the relevance of market power’

This article was published in the Harvard Law Review, and can be found at https://harvardlawreview.org/2017/03/on-the-relevance-of-market-power/. This is a book-length all-out attack on the conception of “market power” as it is currently applied. Like most  law and economics literature, it is concerned with how best to design laws in order to maximise the social benefit of law enforcement. While the argument is not easy to encapsulate, I think the main point is that greater market power – understood as  “the degree to which price can profitably be elevated above a competitive level, often taken as marginal cost” – does not necessarily mean that greater anticompetitive effects must follow. Instead, market power can have a variety of different effects, depending on the specific impact of the relevant practices on welfare. As such – and unlike what we do today – the concept of market power should be derived backwards from the level at which an antitrust infringement should be found, based on the impact that…

Daniel Sokol ‘Troubled Waters Between U.S. and European Antitrust’

This is an article-length review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle, a book on the differences between EU and American antitrust. It was published in the Michigan Law Review, and can be found at https://repository.law.umich.edu/mlr/vol115/iss6/10/. The review is interesting because: (I) it provides an overview of the book and its arguments, which is quite useful; (II) it describes how the different goals of antitrust and institutional framework on both sides of the pond lead to different enforcement priorities and allocation of powers to enforcement agencies; (iii) it assesses in some detail how single firm conduct is differently pursued on both sides of the Atlantic; and (iv) it compares different enforcement practices regarding cartels in Europe and the US. The main argument of both the book and the article is that: “With its steadfast economic focus, antitrust in the United States has a clear goal. In…

Maurice E. Stucke ‘Reconsidering Antitrust’s Goals’

This is a more recent paper to the ABA one identified in the post below, which has the advantage of also being an analytical / critical piece. To be clear, I do not necessarily support or condone the criticisms set out in the paper – but I do like how his analysis makes one think about what antitrust should be about. The article can be found at http://lawdigitalcommons.bc.edu/bclr/vol53/iss2/4/. While mainly focused on the US, the paper is interesting for its (critical) description of how our current understanding of antitrust as being mainly devoted to promoting consumer welfare and efficiency came about (interesting tidbit: before 1975, the US Supreme Court had never mentioned “consumer welfare” in an antitrust case); and of how this “official” understanding conflicts with the proliferation of antitrust goals to be found in laws across the world (which leads to a useful review of such antitrust goals, mainly relying on ICN work). The critical part is also interesting for…

Herbert Hovenkamp ‘The Rule of Reason’

This paper by Hovenkamp – available at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.fr/&httpsredir=1&article=2780&context=faculty_scholarship – on the US rule of reason. It describes the historical background for the development of the rule of reason and its procedural requirements in US litigation.  It is short, very thorough, very opinionated, and should interesting to anyone interested on the basic underpinnings of competition law analysis (even if one is not a US antitrust lawyer). The paper covers a lot of ground, including: the trade-off between consumer and general welfare as antitrust standards;  different modes of analysis of antitrust infringements (e.g. per se, rule of reason and “quick look”); how to balance pro- and anti-competitive effects;  the shifting role of the per se prohibitions and rule of reason (i.e. a trend over the last 40 years towards reducing the role for per se rules as antitrust enforcement has focused more and more on the effect of individual business practices); and the main practical difficulties in applying the concepts underpinning a rule-of-reason analysis. While…