Thomas Horton on ‘Rediscovering Antitrust’s Lost Values’ (2018) New Hampshire Law Review 16(2) 179

Antitrust is now widely said to be dedicated to maximizing “consumer welfare” through an intense focus on promoting “allocative efficiency”. This article, which can be found here, seeks to provide evidence of how such a limited goal has no support in legislative history by tracing U.S. Congress’s consistent balancing of social, political, moral, and economic values and objectives over the course of more than a century of antitrust legislation. The paper is structured as follows: Part II reviews antitrust statutes throughout the years, and how they blend fundamental political, social, moral, and economic values. This section begins by reviewing scholarship on the legislative history of the US’ antitrust statutes. This review shows that there are differences in how conservative and progressive scholars have interpreted the relevant statutes. Conservatives traditionally identified mainly economic goals in the law, while Progressives extracted a number of other political and social goals from the relevant legislative acts. Differences regarding the goals found to be present…

Richard N. Langlois ‘Hunting the Big Five: Twenty-first Century Antitrust in Historical Perspective’

In this paper – available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3124356 – the author considers that proponents of the New Brandeis movement in antitrust are animated by a perception that antitrust is not fit for purpose in the digital age. He considers that this movement is arguing for a return to an earlier age of greater interventionism and greater focus on market structures – which is why he calls this movement ‘new structuralism’. Given this focus, proponents of this movement also advocate for a complete overthrow of the Chicago school paradigm, with its anti-interventionist bias. The author’s argument is that the New Brandeis School gets its History wrong, misconceives the nature of the competitive process, and deliberately refuses to confront the political economy of antitrust. He builds his argument as a rebuttal of Lisa Kahn’s article on Amazon (which I circulated and discussed on 3 March 2017). In the interest of clarity, I will ignore that part of the argument when reviewing the paper,…

Herbert Hovenkamp “Whatever Did Happen to the Antitrust Movement?”

This paper argues that recent claims to the effect that antitrust should be used to combat a variety of social ills – such as industrial concentration, the economic or political power of large firms, the maldistribution of wealth, high profits, low wages, or the absence of policies protecting small business – are not new. Such claims have appeared and reappeared periodically in the history of antitrust, and amount to a rhetorical use of antitrust for promoting various societal goals which must be distinguished from the technical enterprise of antitrust. There is between these two dimensions of antitrust an unsurmountable contradiction, as the main goal of the antitrust enterprise (lower prices, larger output, etc.) will often be at odds with the rhetorical uses of antitrust (e.g. protecting small businesses). The paper is structured as follows: A first section looks at the virtues and defects of technical antitrust. “Technical antitrust” refers to: “a set of antitrust rules that begin with a picture…

Paul Nihoul, Freedom of choice: The emergence of a powerful concept in European competition law, September 2012, Concurrences Review N° 3-2012, Art. N° 48102, pp. 55

This chapter – which can be found here – argues that a number of European Commission and European court decisions bring to the forefront a legal test that has so far merited limited attention—the concept of choice, understood as the possibility, and the right, for customers to choose freely both the products/services best suited to their needs, and the economic partners they want to deal with. This legal test is analysed in this essay, which is divided into three parts: Part II examines cases where this new test is said to emerge more clearly. These are mainly Art. 102 TFEU cases – and the most important one is, arguably, a case regarding predatory pricing of internet services by France Telecom. France Telecom argued that recoupment was necessary for pricing below costs to be anticompetitive. The European Court of Justice dismissed this argument. Even if consumers would benefit from lower prices on aggregate, this would not eliminate all competitive harm: inasmuch…

Ariel Ezrachi and Maurice Stucke ‘The fight over antitrust’s soul’ (2017) Journal of European Competition Law & Practice 9(1) 1

The piece – which can be found here – begins by describing recent trends in academic discussions in antitrust, which I think this blog has followed in some detail over the past two years. On the one hand, we have the ‘hipster antitrust/New Brandeis’ school, with its criticism of Chicago school-based enforcement and its calls for greater intervention. On the other hand, we have the reactions to this antitrust movement which: ‘warn about enforcement chilling pro-competitive behaviour, and undermining the market’s ability to self-correct […] is unconcerned about the trend toward concentration, and reject fairness or distribution concerns as part of competition policy.’ The authors trace this debate to a number of factors. While they identify a number of them, from my perspective the debate ultimately stems from different understandings about how the economy works in practice. Some differences could ultimately be settled by reference to empirical data – for example, the debate between those who believe markets necessarily self-correct…

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…

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…

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…