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…

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…

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…

Maurice E Stucke ‘Reconsidering Competition’

This is a relatively old paper from 2011 by Maurice Stucke on a topic as straightforward as: “what is competition”. The paper has a fairly straightforward structure. In the first section, he reviews the concept of “competition”. It concludes that while there are multiple conceptions of competition, none prevails without qualification over the others. For example, some consider competition as an idealized end-state (such as static price competition under the economic model of perfect competition), while others view competition as a dynamic process. There is no easy way to arbitrate between these views. In the second section, he explores the reasons for this diversity of conceptions of competition, and concludes that they arise from differing  underlying assumptions regarding competitive processes. He tests this by relaxing the assumption of rationality of market participants and looking at its implications in section III. For my purposes here, the most interesting section is the first one, which  provides an overview of the various meanings…

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…