S. Avdasheva, D. Tsytsulina, S. Golovanova, E. Sidorova
Many antitrust investigations in Russia continue to present a challenge for the assessment of competition policy and international enforcement ratings. On the one hand, many infringement decisions may be interpreted as an indicator of high enforcement efforts in the context of rigid competition restrictions and the significant related harm to social welfare. On the other hand, many investigations proceed under poor legal and economic standards; therefore, the impact of decisions and remedies on competition is questionable. In fact, large number of investigations may indicate the ineffectiveness of antitrust enforcement. The article explains the possible effects of antitrust enforcement in Russia. Using a unique dataset of the appeals of infringement decisions from 2008-2012, we classify the investigated cases according to their potential impact on competition. A case-level analysis reveals that the majority of cases would never be investigated under an appropriate understanding of the goals of antitrust enforcement, restrictions on competition and basic cost-benefit assessments of agency activity. There are diverse explanations for the distorted structure of enforcement, including the incompleteness and imperfection of sector-specific regulations, rules concerning citizen complaints against the executive authorities and the incentives of competition authorities. Our analysis shows that competition agencies tend to pay more attention to the investigation of cases, which requires less input and, at the same time, results in infringement decisions with a lower probability of being annulled
{"title":"Discovering the Miracle of Large Numbers of Antitrust Investigations in Russia: The Role of Competition Authority Incentives","authors":"S. Avdasheva, D. Tsytsulina, S. Golovanova, E. Sidorova","doi":"10.2139/ssrn.2588989","DOIUrl":"https://doi.org/10.2139/ssrn.2588989","url":null,"abstract":"Many antitrust investigations in Russia continue to present a challenge for the assessment of competition policy and international enforcement ratings. On the one hand, many infringement decisions may be interpreted as an indicator of high enforcement efforts in the context of rigid competition restrictions and the significant related harm to social welfare. On the other hand, many investigations proceed under poor legal and economic standards; therefore, the impact of decisions and remedies on competition is questionable. In fact, large number of investigations may indicate the ineffectiveness of antitrust enforcement. The article explains the possible effects of antitrust enforcement in Russia. Using a unique dataset of the appeals of infringement decisions from 2008-2012, we classify the investigated cases according to their potential impact on competition. A case-level analysis reveals that the majority of cases would never be investigated under an appropriate understanding of the goals of antitrust enforcement, restrictions on competition and basic cost-benefit assessments of agency activity. There are diverse explanations for the distorted structure of enforcement, including the incompleteness and imperfection of sector-specific regulations, rules concerning citizen complaints against the executive authorities and the incentives of competition authorities. Our analysis shows that competition agencies tend to pay more attention to the investigation of cases, which requires less input and, at the same time, results in infringement decisions with a lower probability of being annulled","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126836479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I analyze cliff discounts when an incumbent monopolist faces competition from a competitor that can compete for a portion (but not all) of the market, and compare them with both simple pricing and pricing formulas in which the incumbent can cut prices just in the competitive portion of the market. The optimal cliff discount does not require exclusivity by the buyer. By leaving a portion of the market to the competitor, the incumbent gives it the choice between accepting its allocated share at a high price and offering deep discounts for any increase in market share. The optimal contract allows the competitor to earn higher profits by charging a high price for its allocated share, which in turn allows the incumbent to charge a high price. Average prices are higher with the cliff discount than with pricing that targets price cuts to the competitive segment. The model can apply to bundled discounts for multiple products as well as all-units discounts on a single product.
{"title":"Cliff Discounts by a Dominant Producer Threatened by Partial Entry","authors":"M. Salinger","doi":"10.2139/ssrn.2585023","DOIUrl":"https://doi.org/10.2139/ssrn.2585023","url":null,"abstract":"I analyze cliff discounts when an incumbent monopolist faces competition from a competitor that can compete for a portion (but not all) of the market, and compare them with both simple pricing and pricing formulas in which the incumbent can cut prices just in the competitive portion of the market. The optimal cliff discount does not require exclusivity by the buyer. By leaving a portion of the market to the competitor, the incumbent gives it the choice between accepting its allocated share at a high price and offering deep discounts for any increase in market share. The optimal contract allows the competitor to earn higher profits by charging a high price for its allocated share, which in turn allows the incumbent to charge a high price. Average prices are higher with the cliff discount than with pricing that targets price cuts to the competitive segment. The model can apply to bundled discounts for multiple products as well as all-units discounts on a single product.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126726588","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite the importance of organizational misconduct, we still do not know much about coordinated misconduct between firms. In this study, we get a better understanding of how the profile of the partners involved in cartels affects the longevity of their joint misconduct activities. Drawing upon diversity theory, we leverage a distinction between three types of diversity — i.e., variety of age-based experience, separation in uncertainty avoidance, and power disparity — in collective organizational misconduct between firms and we study their respective influence on the longevity of cartels. Our empirical analysis gives support to our main arguments: the longevity of cartels tends to be increased by the level of variety of age-based experience and power disparity between partners but reduced by their level of separation in uncertainty avoidance. Implications for the literature on organizational misconduct are discussed.
{"title":"Partners in Crime: The Effects of Diversity on the Longevity of Cartels","authors":"O. Bertrand, Fabrice Lumineau","doi":"10.5465/AMJ.2013.1209","DOIUrl":"https://doi.org/10.5465/AMJ.2013.1209","url":null,"abstract":"Despite the importance of organizational misconduct, we still do not know much about coordinated misconduct between firms. In this study, we get a better understanding of how the profile of the partners involved in cartels affects the longevity of their joint misconduct activities. Drawing upon diversity theory, we leverage a distinction between three types of diversity — i.e., variety of age-based experience, separation in uncertainty avoidance, and power disparity — in collective organizational misconduct between firms and we study their respective influence on the longevity of cartels. Our empirical analysis gives support to our main arguments: the longevity of cartels tends to be increased by the level of variety of age-based experience and power disparity between partners but reduced by their level of separation in uncertainty avoidance. Implications for the literature on organizational misconduct are discussed.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125236685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After the advent of Independence in 1947, India, for the better part of half a century thereafter, adopted and followed policies comprising what are known as “Command-and-Control” laws, rules, regulations and executive orders.The Competition law of India, namely, the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) was one such. It was in 1991 that widespread economic reforms were undertaken and consequently the march from “Command-and-Control” economy to an economy based more on free market principles commenced its stride. As is true of many countries, economic liberalisation has taken root in India and the need for an effective competition regime has also been recognized.In the context of the new economic policy paradigm, India has enacted a new competition law called the Competition Act, 2002 (Act, for brief). The MRTP Act has converted into the new law, Competition Act, 2002. The new law has repealed the extant MRTP Act. This paper, therefore, addresses both the enactments and also outlines the logic behind the development.
{"title":"Genesis of Competition Law in India","authors":"A. Singh, Anil Kumar","doi":"10.2139/SSRN.2552486","DOIUrl":"https://doi.org/10.2139/SSRN.2552486","url":null,"abstract":"After the advent of Independence in 1947, India, for the better part of half a century thereafter, adopted and followed policies comprising what are known as “Command-and-Control” laws, rules, regulations and executive orders.The Competition law of India, namely, the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) was one such. It was in 1991 that widespread economic reforms were undertaken and consequently the march from “Command-and-Control” economy to an economy based more on free market principles commenced its stride. As is true of many countries, economic liberalisation has taken root in India and the need for an effective competition regime has also been recognized.In the context of the new economic policy paradigm, India has enacted a new competition law called the Competition Act, 2002 (Act, for brief). The MRTP Act has converted into the new law, Competition Act, 2002. The new law has repealed the extant MRTP Act. This paper, therefore, addresses both the enactments and also outlines the logic behind the development.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115386363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Commission appears to be considering to open a new antitrust case against the owners of the FIA Formula One World Championship (F1), which by some accounts represents the second biggest sports business in the world. Specifically, two interrelated concerns are raised: (i) a violation of a former settlement between F1 organizers and the EC’s competition division by re-mixing regulatory authority and commercial rights through the Federation Internationale l’Automobile (FIA) and (ii) an unfair treatment of smaller teams by excluding them from regulatory decision procedures and by a grossly uneven distribution of revenues among teams. These two concerns, however, do not only point to a violation of the former settlement, they also reveal a major flaw in the 2001 agreement. Instead of restoring competition, the power may just have been leveraged from the FIA to the commercial rights holder.
{"title":"Competition in Motor Racing: A New Formula One Antitrust Case?","authors":"Oliver Budzinski","doi":"10.2139/ssrn.2671315","DOIUrl":"https://doi.org/10.2139/ssrn.2671315","url":null,"abstract":"The European Commission appears to be considering to open a new antitrust case against the owners of the FIA Formula One World Championship (F1), which by some accounts represents the second biggest sports business in the world. Specifically, two interrelated concerns are raised: (i) a violation of a former settlement between F1 organizers and the EC’s competition division by re-mixing regulatory authority and commercial rights through the Federation Internationale l’Automobile (FIA) and (ii) an unfair treatment of smaller teams by excluding them from regulatory decision procedures and by a grossly uneven distribution of revenues among teams. These two concerns, however, do not only point to a violation of the former settlement, they also reveal a major flaw in the 2001 agreement. Instead of restoring competition, the power may just have been leveraged from the FIA to the commercial rights holder.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"431 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133338225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nikolaus Fink, Philipp Schmidt-Dengler, K. Stahl, Christine Zulehner
In the period following WW II. until the country accessed the European Union, cartels were legalized in Austria, upon registration with the Austrian Cartel Court. We obtained access to the registration data, and scanned them all towards a microeconomic analysis of contracting behavior between firms competing, in principle, in their respective markets. In this paper, we give a detailed account of our procedure of coding the data from the scanned documents.
{"title":"Registered Cartels in Austria – Coding Protocol","authors":"Nikolaus Fink, Philipp Schmidt-Dengler, K. Stahl, Christine Zulehner","doi":"10.2139/SSRN.2555458","DOIUrl":"https://doi.org/10.2139/SSRN.2555458","url":null,"abstract":"In the period following WW II. until the country accessed the European Union, cartels were legalized in Austria, upon registration with the Austrian Cartel Court. We obtained access to the registration data, and scanned them all towards a microeconomic analysis of contracting behavior between firms competing, in principle, in their respective markets. In this paper, we give a detailed account of our procedure of coding the data from the scanned documents.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130605057","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The bourgeoning investigation into the manipulation of key financial benchmarks, such as the London Interbank Offered Rate (Libor), has seen the imposition of an escalating range of fines by regulatory and law enforcement agencies. While primarily focused in the United Kingdom and the United States, the misconduct spans the globe. It has also prompted the exit of a number of financial institutions from the setting of benchmark rates. This has posed a range of practical and conceptual problems, which apply at national, regional and global levels. At a practical level, the credibility of the benchmarks, which are a public good, has been undermined, prompting an incremental but observable erosion of public confidence in market integrity. Exit has the effect of reducing pricing transparency and thus liquidity. Secondly, the investigation of collusion has brought the arrival of competition regulators into the arcane world of financial regulation. Their focus on breaking up cartels changes the dynamics, prompting a rapid expansion of the regulatory perimeter. It also facilitates a fundamental rethinking of capital market purpose. This paper evaluates how the confluence of regulatory and criminal investigation offers a time-limited opportunity to transcend the incremental and flawed nature of technical reform. It assesses the conceptual coherence of attempts, driven by the United Kingdom, but with significant support from both the Financial Stability Board and the International Monetary Fund, to create “fair and effective” markets by articulating a new vision of “inclusive capitalism” and whether this addresses the observed institutional corruption.
{"title":"Fixing the Fix: Governance, Culture, Ethics, and the Extending Perimeter of Financial Regulation","authors":"J. O'Brien","doi":"10.2139/SSRN.2529073","DOIUrl":"https://doi.org/10.2139/SSRN.2529073","url":null,"abstract":"The bourgeoning investigation into the manipulation of key financial benchmarks, such as the London Interbank Offered Rate (Libor), has seen the imposition of an escalating range of fines by regulatory and law enforcement agencies. While primarily focused in the United Kingdom and the United States, the misconduct spans the globe. It has also prompted the exit of a number of financial institutions from the setting of benchmark rates. This has posed a range of practical and conceptual problems, which apply at national, regional and global levels. At a practical level, the credibility of the benchmarks, which are a public good, has been undermined, prompting an incremental but observable erosion of public confidence in market integrity. Exit has the effect of reducing pricing transparency and thus liquidity. Secondly, the investigation of collusion has brought the arrival of competition regulators into the arcane world of financial regulation. Their focus on breaking up cartels changes the dynamics, prompting a rapid expansion of the regulatory perimeter. It also facilitates a fundamental rethinking of capital market purpose. This paper evaluates how the confluence of regulatory and criminal investigation offers a time-limited opportunity to transcend the incremental and flawed nature of technical reform. It assesses the conceptual coherence of attempts, driven by the United Kingdom, but with significant support from both the Financial Stability Board and the International Monetary Fund, to create “fair and effective” markets by articulating a new vision of “inclusive capitalism” and whether this addresses the observed institutional corruption.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127328523","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite multiple applications of network theory in different fields of social and legal sciences in general, the possibility of applying this theory to the economic analysis of the antitrust law and, more specifically, to the study of cartels has not yet been considered. This paper develops a set of distances, clustering and centrality measures, taken from network theory, and applies them to the specific case of a cartel sanctioned as such by the European Commission. This approach has enabled us to quantify some characteristic elements of the cartel, such as, for instance, a remarkable asymmetry between operators (nodes in the network), its different degree of influence (study of links), as well as the critical importance of some operators versus other cartelized agents, such that their elimination from the organization would not enable them to create their own cartel. This leads the authors to reconsider the antitrust policy based on leniency programmes.
{"title":"Networks, Cartels, and Antitrust Policy","authors":"Miguel Cuerdo Mir, Pilar Grau-Carles","doi":"10.2139/ssrn.2518988","DOIUrl":"https://doi.org/10.2139/ssrn.2518988","url":null,"abstract":"Despite multiple applications of network theory in different fields of social and legal sciences in general, the possibility of applying this theory to the economic analysis of the antitrust law and, more specifically, to the study of cartels has not yet been considered. This paper develops a set of distances, clustering and centrality measures, taken from network theory, and applies them to the specific case of a cartel sanctioned as such by the European Commission. This approach has enabled us to quantify some characteristic elements of the cartel, such as, for instance, a remarkable asymmetry between operators (nodes in the network), its different degree of influence (study of links), as well as the critical importance of some operators versus other cartelized agents, such that their elimination from the organization would not enable them to create their own cartel. This leads the authors to reconsider the antitrust policy based on leniency programmes.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114886063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores how the courts of the early Republic interpreted the Anti-Injunction Act ("AIA") of 1793 as applied to federal bankruptcy injunctions restraining state-court proceedings — a common and indeed intrinsic constitutional feature of federal bankruptcy proceedings pursuant to any "uniform Law on the subject of Bankruptcies." The early-Republic bankruptcy injunction cases provide indirect support for James Pfander's and Nassim Nazemi's novel original-ancillary theory positing a much more limited scope for the 1793 AIA than do conventional accounts of that statute's bar. According to Pfander and Nazemi, the 1793 AIA's prohibition against "writs of injunctions" to stay state-court proceedings (sought via an original bill through a suit in equity) did not prohibit ancillary relief in the nature of an injunction (sought via a motion or petition) granted in an equitable proceeding principally seeking relief other than or independent of such an injunction, but for which an injunctive decree (not via a "writ of injunction") might nonetheless be necessary or appropriate. The original-ancillary distinction identified by Pfander and Nazemi is reflected in one of the most prominent, fundamental, and longstanding jurisdictional and procedural divides with respect to bankruptcy proceedings — the dichotomy between plenary assignee/trustee suits at law or in equity via an original complaint or bill, as distinguished from so-called summary bankruptcy proceedings in equity on motion or petition. Early, influential decisions of Justice Story established that federal bankruptcy injunctions properly issue in ancillary summary proceedings and (consistent with the Pfander-Nazemi original-ancillary theory) found no obstacle in the 1793 AIA to enjoining state-court proceedings thereby.The bankruptcy cases not only help illustrate that the 1793 AIA had a much more limited scope than has generally been acknowledged (consistent with both the Pfander-Nazemi original-ancillary interpretation and William Mayton’s single-justice interpretation), they also illuminate the central importance of the AIA, nonetheless, in assuaging federalism sensitivities that were easily aroused in the early Republic. Indeed, the federal courts' administration of nineteenth century bankruptcy laws produced a very acrimonious standoff involving U.S. Supreme Court Justice Joseph Story, New Hampshire Supreme Court Justice Joel Parker, and the New Hampshire legislature, and bearing striking similarities to the Morris v. Allen controversy that many posit as the impetus for enactment of the 1793 AIA. Tellingly, the U.S. Supreme Court ultimately diffused that bankruptcy controversy through a very nuanced invocation of the 1793 AIA that neither broadened its reach (beyond that posited by Pfander and Nazemi) nor posed any enduring obstacle to the effectiveness of federal bankruptcy laws.
{"title":"Justice Story, Bankruptcy Injunctions, and the Anti-Injunction Act of 1793","authors":"R. Brubaker","doi":"10.2139/SSRN.2469339","DOIUrl":"https://doi.org/10.2139/SSRN.2469339","url":null,"abstract":"This article explores how the courts of the early Republic interpreted the Anti-Injunction Act (\"AIA\") of 1793 as applied to federal bankruptcy injunctions restraining state-court proceedings — a common and indeed intrinsic constitutional feature of federal bankruptcy proceedings pursuant to any \"uniform Law on the subject of Bankruptcies.\" The early-Republic bankruptcy injunction cases provide indirect support for James Pfander's and Nassim Nazemi's novel original-ancillary theory positing a much more limited scope for the 1793 AIA than do conventional accounts of that statute's bar. According to Pfander and Nazemi, the 1793 AIA's prohibition against \"writs of injunctions\" to stay state-court proceedings (sought via an original bill through a suit in equity) did not prohibit ancillary relief in the nature of an injunction (sought via a motion or petition) granted in an equitable proceeding principally seeking relief other than or independent of such an injunction, but for which an injunctive decree (not via a \"writ of injunction\") might nonetheless be necessary or appropriate. The original-ancillary distinction identified by Pfander and Nazemi is reflected in one of the most prominent, fundamental, and longstanding jurisdictional and procedural divides with respect to bankruptcy proceedings — the dichotomy between plenary assignee/trustee suits at law or in equity via an original complaint or bill, as distinguished from so-called summary bankruptcy proceedings in equity on motion or petition. Early, influential decisions of Justice Story established that federal bankruptcy injunctions properly issue in ancillary summary proceedings and (consistent with the Pfander-Nazemi original-ancillary theory) found no obstacle in the 1793 AIA to enjoining state-court proceedings thereby.The bankruptcy cases not only help illustrate that the 1793 AIA had a much more limited scope than has generally been acknowledged (consistent with both the Pfander-Nazemi original-ancillary interpretation and William Mayton’s single-justice interpretation), they also illuminate the central importance of the AIA, nonetheless, in assuaging federalism sensitivities that were easily aroused in the early Republic. Indeed, the federal courts' administration of nineteenth century bankruptcy laws produced a very acrimonious standoff involving U.S. Supreme Court Justice Joseph Story, New Hampshire Supreme Court Justice Joel Parker, and the New Hampshire legislature, and bearing striking similarities to the Morris v. Allen controversy that many posit as the impetus for enactment of the 1793 AIA. Tellingly, the U.S. Supreme Court ultimately diffused that bankruptcy controversy through a very nuanced invocation of the 1793 AIA that neither broadened its reach (beyond that posited by Pfander and Nazemi) nor posed any enduring obstacle to the effectiveness of federal bankruptcy laws.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129243916","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is impossible to tell the history of American antitrust law and economics during the so-called formative era (1890-1915) without a preliminary understanding of the economic rationale underlying that major phase of American constitutional law commonly called laissez faire constitutionalism, or Lochner era. The essay is a preliminary effort to locate such a rationale in the almost perfect overlap between classical political economy, especially the notion of competition as the supreme organizing principle of thriving societies, and classical liberalism, in particular the notion of liberty of contract. It is argued that the well-known Progressive interpretation of the Lochner era fails to recognize the true meaning and extent of this overlap. The protagonists of our story are economists Adam Smith, John Stuart Mill and Francis Wayland, and Supreme Court Justices James Wilson, Oliver Wendell Holmes and Rufus Peckham.
{"title":"Classical Competition and Freedom of Contract in American Laissez Faire Constitutionalism","authors":"N. Giocoli","doi":"10.2139/ssrn.2448419","DOIUrl":"https://doi.org/10.2139/ssrn.2448419","url":null,"abstract":"It is impossible to tell the history of American antitrust law and economics during the so-called formative era (1890-1915) without a preliminary understanding of the economic rationale underlying that major phase of American constitutional law commonly called laissez faire constitutionalism, or Lochner era. The essay is a preliminary effort to locate such a rationale in the almost perfect overlap between classical political economy, especially the notion of competition as the supreme organizing principle of thriving societies, and classical liberalism, in particular the notion of liberty of contract. It is argued that the well-known Progressive interpretation of the Lochner era fails to recognize the true meaning and extent of this overlap. The protagonists of our story are economists Adam Smith, John Stuart Mill and Francis Wayland, and Supreme Court Justices James Wilson, Oliver Wendell Holmes and Rufus Peckham.","PeriodicalId":345107,"journal":{"name":"LSN: Antitrust (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128643797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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