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…

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…