Lisa Khan ‘The New Brandeis Movement: America’s Antimonopoly Debate’

This paper is a full-blown defence of the New Brandeis movement by one of its most visible proponents. It is to be published in the Journal of European Competition Law & Practice and can be found here: https://academic.oup.com/jeclap/advance-article/doi/10.1093/jeclap/lpy020/4915966 The paper begins by mapping out the emergence of the New Brandeis (or anti-monopoly) movement as a reaction to growing concentration in the American economy. The movement takes its name from Louis Brandeis, who served on the US Supreme Court between 1916 and 1939 and was a strong proponent of America’s Madisonian traditions—which aim at a democratic distribution of power and opportunity in the political economy. The movement is anchored in the following pillars: There are no such things as market ‘forces’. The Chicago School assumes that market structures emerge in large part through ‘natural forces.’ The New Brandeisians, by contrast, believe the political economy is structured through law and policy. The goal of antimonopoly laws is to ensure that citizens are…

Inara Scott ‘Antitrust and Socially Responsible Collaboration: A Chilling Combination?’

This paper, published in the American Business Law Journal and available at https://onlinelibrary.wiley.com/doi/full/10.1111/ablj.12073, argues that efforts by companies to engage in socially beneficial activities (in human rights, environmental issues, labour standards, etc.) may infringe antitrust provisions. Part I sets forth the economic and business justifications for collaborating across businesses, including those between and among competitors, and provides examples of key types of these collaborations. Part II considers the application of antitrust laws and examines the struggle to determine to what extent courts may find the collaborative practices described in Part I acceptable. Based on this analysis, Part III then examines the chilling effect of antitrust law on socially responsible collaborations and considers changes necessary to facilitate these types of transactions. While the article focuses on the Sherman Act, which language is indeed more open than that of subsequent competition acts, the problem the paper discusses is common to most jurisdictions: how is antitrust to respond to these potentially beneficial cooperative efforts,…

Julie Cohen ‘The Regulatory State in the Information Age’

This paper, published in Theoretical Inquiries in Law, and available at eial.tau.ac.il/index.php/til/article/download/1425/1501, is only for the more academically minded and those who are interested in deep theory of regulation and competition law.  It focuses on the challenges that the information society poses to traditional modes of regulation, and provides food for thought and a potential starting point to try to think about challenges to competition law / economic regulation in a wider context. This is despite the repeated use of academic jargon and expressions such as “neoliberal” to mean “unfortunate ideas/developments”. Thus, mariner beware: here be dragons. The arguments made in this paper(which I do not necessarily share) include, among others: (i) that concepts used in classic regulatory schemes (such as market definition and market power for antitrust) were developed for different economic structures and are not very well suited to the information age, which is prone to oligopolistic/undefined markets and platforms markets/infrastructures that are interdependent, create strong path-dependencies and exert…

Steve Salop and Jonathan Baker ‘Antitrust, Competition Policy, and Inequality’

Originally circulated on 4 December 2016 This article, published in the Georgetown Law Review, is one of the first ones I am aware of on how public concerns about inequality may affect antitrust enforcement and competition policy. It argues that, among a number of other (arguably more important) factors, market power and increased concentration have led to increasing inequality. Technological change has created more markets with intellectual property protection or network effects, which allow firms to achieve market power. The adoption of more permissive antitrust rules during the past quarter-century has also likely increased the prevalence of market power. Since the returns of market power accrue to capital, which belongs to a minority of the population –usually the richest segment –, this increases the surplus of producers and, with it, inequality. The article provides a flavour of the times – and includes a useful review of the literature on competition and inequality, and of possible initiatives that agencies/legislators may adopt…