Pub Date : 2023-07-19DOI: 10.1177/0003603X231184666
D. Haas-wilson, Kristof Zetenyi, B. Gorin
We provide a methodology for geographic market definition when the product(s) being purchased or sold has an intrinsic geographic component, such as (1) the sale of commercial health plans and (2) the purchase of health care providers’ services by commercial health plans. In these situations, we show that a straightforward application of the Horizontal Merger Guidelines issued by the U.S. Department of Justice and the Federal Trade Commission (hereafter, Guidelines) that uses the customer or supplier location to define the geographic market is not sufficient and can result in markets that are unintuitively small. This is often addressed by applying an assumption about aggregating based on similar competitive conditions. The practice of relying on the assumption of similar competitive conditions across counties, metropolitan statistical areas, or other geographic areas, without a methodology to support this assumption, could lead to market definitions that are too narrow or too broad and could influence the assessments of the extent of market concentration and the presence or absence of market power. We outline a framework that is consistent with the Guidelines and does not require a reliance on the assumption of aggregation based on similar competitive conditions. JEL Classification L12, L40, K21, D42, I11
{"title":"Geographic Market Definition in Commercial Health Insurer Matters: A Unified Approach for Merger Review, Monopolization Claims, and Monopsonization Claims","authors":"D. Haas-wilson, Kristof Zetenyi, B. Gorin","doi":"10.1177/0003603X231184666","DOIUrl":"https://doi.org/10.1177/0003603X231184666","url":null,"abstract":"We provide a methodology for geographic market definition when the product(s) being purchased or sold has an intrinsic geographic component, such as (1) the sale of commercial health plans and (2) the purchase of health care providers’ services by commercial health plans. In these situations, we show that a straightforward application of the Horizontal Merger Guidelines issued by the U.S. Department of Justice and the Federal Trade Commission (hereafter, Guidelines) that uses the customer or supplier location to define the geographic market is not sufficient and can result in markets that are unintuitively small. This is often addressed by applying an assumption about aggregating based on similar competitive conditions. The practice of relying on the assumption of similar competitive conditions across counties, metropolitan statistical areas, or other geographic areas, without a methodology to support this assumption, could lead to market definitions that are too narrow or too broad and could influence the assessments of the extent of market concentration and the presence or absence of market power. We outline a framework that is consistent with the Guidelines and does not require a reliance on the assumption of aggregation based on similar competitive conditions. JEL Classification L12, L40, K21, D42, I11","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"533 - 546"},"PeriodicalIF":0.0,"publicationDate":"2023-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44482605","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}
Pub Date : 2023-07-13DOI: 10.1177/0003603x231180244
Thomas C. Willcox
A small oligopoly of commercial and investment banks dominates the arranging and underwriting of loans and bonds for publicly traded companies. The oligopoly’s dominance apparently compels nondisclosure of preliminary agreements that outline the proposed issuance terms of the loans or bonds. Also, the banks do not disclose the arranging and underwriting fees to anyone outside the oligopoly and prohibit disclosure to anyone by their customers, which non-disclosure violates the securities laws. This makes it impossible for customers to compare such fees and more difficult for non-oligopoly banks to offer competing bids. This article concludes the Antitrust Division, and Securities & Exchange Commission should investigate these practices.
{"title":"Wall Street’s Practice of Compelling Confidentiality of Private Underwriting Fees: An Antitrust Violation?","authors":"Thomas C. Willcox","doi":"10.1177/0003603x231180244","DOIUrl":"https://doi.org/10.1177/0003603x231180244","url":null,"abstract":"A small oligopoly of commercial and investment banks dominates the arranging and underwriting of loans and bonds for publicly traded companies. The oligopoly’s dominance apparently compels nondisclosure of preliminary agreements that outline the proposed issuance terms of the loans or bonds. Also, the banks do not disclose the arranging and underwriting fees to anyone outside the oligopoly and prohibit disclosure to anyone by their customers, which non-disclosure violates the securities laws. This makes it impossible for customers to compare such fees and more difficult for non-oligopoly banks to offer competing bids. This article concludes the Antitrust Division, and Securities & Exchange Commission should investigate these practices.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"363 - 391"},"PeriodicalIF":0.0,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45606847","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}
Pub Date : 2023-07-13DOI: 10.1177/0003603X231180245
O. Brook
EU and U.K. antitrust are contingent upon rigorous enforcement and the imposition of sanctions. Hard enforcement is key; antitrust loses its effect when it does not “bite.” Soft instruments (non-adversarial, informal) and negotiated penalty settlements may be used, but authorities are expected to exercise self-restraint. This article reveals that despite the prevalence of hard-enforcement rhetoric, the vast majority of actions taken by the European Commission (1958–2021) and German, Dutch, and U.K. antitrust authorities (2004–2021) were not fully adversarial. The hard-enforcement actions, moreover, were confined to limited practices and sectors. Despite the prominence of non-fully adversarial instruments in Europe, and in striking contrast to the United States, only limited attention was devoted to their existence and implications. Urging to take a hard look at soft enforcement and negotiated penalty settlements, the article systematically records the enforcement instruments and their particularities, questions their effectiveness, and calls to align enforcement theory to practice.
{"title":"Do EU and U.K. Antitrust “Bite”?: A Hard Look at “Soft” Enforcement and Negotiated Penalty Settlements","authors":"O. Brook","doi":"10.1177/0003603X231180245","DOIUrl":"https://doi.org/10.1177/0003603X231180245","url":null,"abstract":"EU and U.K. antitrust are contingent upon rigorous enforcement and the imposition of sanctions. Hard enforcement is key; antitrust loses its effect when it does not “bite.” Soft instruments (non-adversarial, informal) and negotiated penalty settlements may be used, but authorities are expected to exercise self-restraint. This article reveals that despite the prevalence of hard-enforcement rhetoric, the vast majority of actions taken by the European Commission (1958–2021) and German, Dutch, and U.K. antitrust authorities (2004–2021) were not fully adversarial. The hard-enforcement actions, moreover, were confined to limited practices and sectors. Despite the prominence of non-fully adversarial instruments in Europe, and in striking contrast to the United States, only limited attention was devoted to their existence and implications. Urging to take a hard look at soft enforcement and negotiated penalty settlements, the article systematically records the enforcement instruments and their particularities, questions their effectiveness, and calls to align enforcement theory to practice.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"477 - 518"},"PeriodicalIF":0.0,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42762810","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}
Pub Date : 2023-07-06DOI: 10.1177/0003603X231180251
J. Lindeboom
Several scholars and policy-makers have proposed a “Neo-Brandeisian” reform of U.S. antitrust law, aimed at reviving “republican” antitrust. Republicanism conceives of domination as inherently detrimental to freedom. Republican antitrust considers antitrust law as an “institution of antipower,” aimed at dispersing economic power. This paper sets out two key challenges to the Neo-Brandeisian reform agenda and argues for legal formalism to address them. First, republicanism would alter the normative justification, but not necessarily the content of antitrust law. Neoclassical antitrust law does not broadly reflect a Schumpeterian endorsement of dominance. Rather, its epistemological priors and methodology entail skepticism about the mere presence of economic power. Thus, mainstream antitrust law and policy remain unfazed by the Neo-Brandeisian claim that antitrust should target domination instead of consumer welfare. Second, Neo-Brandeisian reform proposals are inherently polycentric. How Neo-Brandeisians aim to balance distinct values including the competitive process, the harm of concentrated power, and the protection of democracy and egalitarianism has remained unclear. This paper argues that both challenges demand for a formalistic approach to Neo-Brandeisian antitrust. Compared to a case-by-case approach, adopting general rules through legislative or administrative decision-making may legitimately overturn current precedent, incorporate alternate methods of measuring power and competitive harm, and pursue a variety of republican goals. Neo-Brandeisian formalism would essentially reinvigorate the Harvard school’s insight that multiple purposes—including both efficiency and republican liberty—can be attained by formalistic rules.
{"title":"Two Challenges for Neo-Brandeisian Antitrust","authors":"J. Lindeboom","doi":"10.1177/0003603X231180251","DOIUrl":"https://doi.org/10.1177/0003603X231180251","url":null,"abstract":"Several scholars and policy-makers have proposed a “Neo-Brandeisian” reform of U.S. antitrust law, aimed at reviving “republican” antitrust. Republicanism conceives of domination as inherently detrimental to freedom. Republican antitrust considers antitrust law as an “institution of antipower,” aimed at dispersing economic power. This paper sets out two key challenges to the Neo-Brandeisian reform agenda and argues for legal formalism to address them. First, republicanism would alter the normative justification, but not necessarily the content of antitrust law. Neoclassical antitrust law does not broadly reflect a Schumpeterian endorsement of dominance. Rather, its epistemological priors and methodology entail skepticism about the mere presence of economic power. Thus, mainstream antitrust law and policy remain unfazed by the Neo-Brandeisian claim that antitrust should target domination instead of consumer welfare. Second, Neo-Brandeisian reform proposals are inherently polycentric. How Neo-Brandeisians aim to balance distinct values including the competitive process, the harm of concentrated power, and the protection of democracy and egalitarianism has remained unclear. This paper argues that both challenges demand for a formalistic approach to Neo-Brandeisian antitrust. Compared to a case-by-case approach, adopting general rules through legislative or administrative decision-making may legitimately overturn current precedent, incorporate alternate methods of measuring power and competitive harm, and pursue a variety of republican goals. Neo-Brandeisian formalism would essentially reinvigorate the Harvard school’s insight that multiple purposes—including both efficiency and republican liberty—can be attained by formalistic rules.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"392 - 410"},"PeriodicalIF":0.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43626424","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}
Pub Date : 2023-07-05DOI: 10.1177/0003603X231180250
Brianna L. Alderman, R. Blair
Epic Games, the developer of the enormously popular Fortnite, sued Apple for allegedly violating §1 and §2 of the Sherman Act. The central issue was Apple’s requirement that iPhone-compatible apps be purchased in its App Store. Because Apple collects a 30 percent ad valorem tax on each transaction, Epic Games offered an alternative payment option to iPhone owners through the Fortnite app so that consumers could avoid Apple’s 30% fee. When Apple expelled Epic Games from its App Store, Epic sued. In this article, we examine the flawed analysis of the District Court, which can be traced to a fundamental misunderstanding of economic principles.
{"title":"Epic Battles in Two-Sided Markets","authors":"Brianna L. Alderman, R. Blair","doi":"10.1177/0003603X231180250","DOIUrl":"https://doi.org/10.1177/0003603X231180250","url":null,"abstract":"Epic Games, the developer of the enormously popular Fortnite, sued Apple for allegedly violating §1 and §2 of the Sherman Act. The central issue was Apple’s requirement that iPhone-compatible apps be purchased in its App Store. Because Apple collects a 30 percent ad valorem tax on each transaction, Epic Games offered an alternative payment option to iPhone owners through the Fortnite app so that consumers could avoid Apple’s 30% fee. When Apple expelled Epic Games from its App Store, Epic sued. In this article, we examine the flawed analysis of the District Court, which can be traced to a fundamental misunderstanding of economic principles.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"519 - 532"},"PeriodicalIF":0.0,"publicationDate":"2023-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42329278","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}
Pub Date : 2023-06-28DOI: 10.1177/0003603X231182500
Marcos Puccioni de Oliveira Lyra, C. Pires-Alves
This article discusses the assessment of potential negative effects on innovation in horizontal mergers within the United States and the European Commission Merger Control. It explores the theoretical background and practice. First, the article draws principles from the literature review on propositions to assess innovation competition cases. Second, it presents official documents and literature on the case law to study the jurisdictions’ experiences. In addition, selected case studies are analyzed, establishing connections to the theoretical principles and practice. The case studies include (1) Takeda/Shire (EC-2018), (2) AbbVie/Allergan (EC-2020), and (3) Sabre/Farelogix (DoJ-2019). The article concludes that there have been improvements, particularly in the assessment of overlaps in firms’ capabilities.
{"title":"Innovation Competition and Innovation Effects in Horizontal Mergers: Theory and Practice in the United States and European Commission","authors":"Marcos Puccioni de Oliveira Lyra, C. Pires-Alves","doi":"10.1177/0003603X231182500","DOIUrl":"https://doi.org/10.1177/0003603X231182500","url":null,"abstract":"This article discusses the assessment of potential negative effects on innovation in horizontal mergers within the United States and the European Commission Merger Control. It explores the theoretical background and practice. First, the article draws principles from the literature review on propositions to assess innovation competition cases. Second, it presents official documents and literature on the case law to study the jurisdictions’ experiences. In addition, selected case studies are analyzed, establishing connections to the theoretical principles and practice. The case studies include (1) Takeda/Shire (EC-2018), (2) AbbVie/Allergan (EC-2020), and (3) Sabre/Farelogix (DoJ-2019). The article concludes that there have been improvements, particularly in the assessment of overlaps in firms’ capabilities.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"432 17","pages":"460 - 476"},"PeriodicalIF":0.0,"publicationDate":"2023-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41280954","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}
Pub Date : 2023-06-26DOI: 10.1177/0003603x231180252
C. Veljanovski
This is a quantitative analysis of the European Commission’s cartel decisions in the 2010–2019 decade. It assesses the way the Commission’s 2006 guidelines on fines were applied in practice and the operation of the leniency and settlement procedures. It also provides an overview of the types of cartels prosecuted, how they were detected, and how long the Commission took to investigate a cartel. It looks at rends in the Commission’s enforcement activity and assesses some frequently made claims such as whether recidivism is rife; whether the Commission’s leniency program is excessively generous and disproportionately benefits larger, more culpable firms; how much the settlements procedure reduces the length of the Commission’s investigations; and why the Commission takes so long to conclude its investigations.
{"title":"An Empirical Assessment of the European Commission’s Cartel Prosecutions, 2010–2019","authors":"C. Veljanovski","doi":"10.1177/0003603x231180252","DOIUrl":"https://doi.org/10.1177/0003603x231180252","url":null,"abstract":"This is a quantitative analysis of the European Commission’s cartel decisions in the 2010–2019 decade. It assesses the way the Commission’s 2006 guidelines on fines were applied in practice and the operation of the leniency and settlement procedures. It also provides an overview of the types of cartels prosecuted, how they were detected, and how long the Commission took to investigate a cartel. It looks at rends in the Commission’s enforcement activity and assesses some frequently made claims such as whether recidivism is rife; whether the Commission’s leniency program is excessively generous and disproportionately benefits larger, more culpable firms; how much the settlements procedure reduces the length of the Commission’s investigations; and why the Commission takes so long to conclude its investigations.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"411 - 439"},"PeriodicalIF":0.0,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41745532","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}
Pub Date : 2023-06-22DOI: 10.1177/0003603X231182494
Manuel Wörsdörfer
The recent antitrust discourse in the U.S. is dominated by references to Brandeis and the New Brandeis movement. While it is laudable that many researchers acknowledge Brandeis’ work and recognize its business-ethical importance, it is also a missed opportunity to refer to him en passant and not investigate his philosophy in more depth. The following sections attempt to fill this gap in the academic literature by critically evaluating—and comparing—Brandeis’ social philosophy with the one of the New Brandeis movement. The research questions of this paper are twofold: First, it analyzes the parallels and differences between Brandeis and neo-Brandeisianism. Second, it addresses the question of which references to his work are valid and legitimate and which ones are not. The paper shows that Brandeis’ work encompasses much more than just competition policy; reducing him to antitrust issues (only) does not do him justice as it ignores significant parts of his social philosophy. The paper also shows that Brandeis was skeptical of big business and big government. In contrast, the new Brandeis movement focuses solely on antibigness in the economy while ignoring Brandeis’ demand(s) in the political sector.
{"title":"Louis D. Brandeis and the New Brandeis Movement: Parallels and Differences","authors":"Manuel Wörsdörfer","doi":"10.1177/0003603X231182494","DOIUrl":"https://doi.org/10.1177/0003603X231182494","url":null,"abstract":"The recent antitrust discourse in the U.S. is dominated by references to Brandeis and the New Brandeis movement. While it is laudable that many researchers acknowledge Brandeis’ work and recognize its business-ethical importance, it is also a missed opportunity to refer to him en passant and not investigate his philosophy in more depth. The following sections attempt to fill this gap in the academic literature by critically evaluating—and comparing—Brandeis’ social philosophy with the one of the New Brandeis movement. The research questions of this paper are twofold: First, it analyzes the parallels and differences between Brandeis and neo-Brandeisianism. Second, it addresses the question of which references to his work are valid and legitimate and which ones are not. The paper shows that Brandeis’ work encompasses much more than just competition policy; reducing him to antitrust issues (only) does not do him justice as it ignores significant parts of his social philosophy. The paper also shows that Brandeis was skeptical of big business and big government. In contrast, the new Brandeis movement focuses solely on antibigness in the economy while ignoring Brandeis’ demand(s) in the political sector.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"440 - 459"},"PeriodicalIF":0.0,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48203519","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}
Pub Date : 2023-04-12DOI: 10.1177/0003603X231162998
Friso Bostoen
In September 2022, the European Union (EU) legislature adopted the Digital Markets Act (DMA)—a landmark piece of regulation with the potential to transform the digital economy in Europe and beyond. Even after adoption, however, questions remain about its stated goals, underlying assumptions, scope, obligations, and eventual effectiveness. This article examines these questions using EU competition law not as a touchstone but as a reference point. First, the DMA’s goals of “fairness” and “contestability” can be more accurately restated as the protection of intra-platform and the promotion of inter-platform competition. Second, the DMA is based on the idea that the enforcement of the abuse of dominance provision, Article 102 Treaty on the Functioning of the European Union (TFEU), is ineffective both procedurally (due to lengthy investigations and remedial issues) and substantively (due to the difficulty of establishing dominance and abuse)—two assumptions that must be tested by examining competition law’s track record. Third, the scope of the DMA is built around the concept of “gatekeepers,” which are in turn defined based on turnover, market capitalization, and active users. Is this an application of the resurgent “big is bad” ideology or a proxy for market power? Fourth, the DMA imposes a list of dos and don’ts on gatekeepers, many of which are inspired by past or ongoing antitrust investigations. Does this experience justify the far-reaching obligations and if so, are they sufficiently flexible to allow for procompetitive gatekeeper conduct? Finally, the DMA is based on the idea that large online platforms have not continued to deliver the desired innovation outcomes and have reaped more than their fair share of the rewards from the innovation they brought. This assumption is tested by a historical look at Apple’s App Store—the most important innovation platform to arise in the digital economy.
{"title":"Understanding the Digital Markets Act","authors":"Friso Bostoen","doi":"10.1177/0003603X231162998","DOIUrl":"https://doi.org/10.1177/0003603X231162998","url":null,"abstract":"In September 2022, the European Union (EU) legislature adopted the Digital Markets Act (DMA)—a landmark piece of regulation with the potential to transform the digital economy in Europe and beyond. Even after adoption, however, questions remain about its stated goals, underlying assumptions, scope, obligations, and eventual effectiveness. This article examines these questions using EU competition law not as a touchstone but as a reference point. First, the DMA’s goals of “fairness” and “contestability” can be more accurately restated as the protection of intra-platform and the promotion of inter-platform competition. Second, the DMA is based on the idea that the enforcement of the abuse of dominance provision, Article 102 Treaty on the Functioning of the European Union (TFEU), is ineffective both procedurally (due to lengthy investigations and remedial issues) and substantively (due to the difficulty of establishing dominance and abuse)—two assumptions that must be tested by examining competition law’s track record. Third, the scope of the DMA is built around the concept of “gatekeepers,” which are in turn defined based on turnover, market capitalization, and active users. Is this an application of the resurgent “big is bad” ideology or a proxy for market power? Fourth, the DMA imposes a list of dos and don’ts on gatekeepers, many of which are inspired by past or ongoing antitrust investigations. Does this experience justify the far-reaching obligations and if so, are they sufficiently flexible to allow for procompetitive gatekeeper conduct? Finally, the DMA is based on the idea that large online platforms have not continued to deliver the desired innovation outcomes and have reaped more than their fair share of the rewards from the innovation they brought. This assumption is tested by a historical look at Apple’s App Store—the most important innovation platform to arise in the digital economy.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"263 - 306"},"PeriodicalIF":0.0,"publicationDate":"2023-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47883287","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}
Pub Date : 2023-04-10DOI: 10.1177/0003603X231162997
Richard S. Markovits
This Article provides recommendations both for improving the accuracy of applications of the Sherman Act and Clayton Act to mergers and acquisitions (M&A)s and for creating morally-desirable (M&A) policies. It defines the specific-anticompetitive-intent and lessening-competition tests of illegality that current U.S. antitrust law applies to (M&A)s; explains why neither classical economic markets nor antitrust markets can be defined non-arbitrarily, and why it is therefore inaccurate and unconstitutional to use market-oriented approaches to analyzing the illegality of (M&A)s under current U.S. antitrust law; outlines appropriate non-market-oriented protocols for determining the illegality of (M&A)s under the Sherman and Clayton Acts—whether the (M or A) was motivated by specific anticompetitive intent or would tend to lessen competition; delineates the liberal conception of justice and various egalitarian conceptions of the moral good and argues that in the U.S. those moral norms should be used to evaluate antitrust policies; outlines the protocol that is economically efficient to use to predict the economic efficiency of particular (M or A)s or particular (M&A) policies; and considers the relevance of the economic efficiency and competitive impact of any (M or A) or any (M&A)-focused antitrust policy for its moral desirability.
{"title":"Thirteen Sets of Observations/Recommendations Pertinent to the Revision of the DOJ/FTC (M&A) Guidelines","authors":"Richard S. Markovits","doi":"10.1177/0003603X231162997","DOIUrl":"https://doi.org/10.1177/0003603X231162997","url":null,"abstract":"This Article provides recommendations both for improving the accuracy of applications of the Sherman Act and Clayton Act to mergers and acquisitions (M&A)s and for creating morally-desirable (M&A) policies. It defines the specific-anticompetitive-intent and lessening-competition tests of illegality that current U.S. antitrust law applies to (M&A)s; explains why neither classical economic markets nor antitrust markets can be defined non-arbitrarily, and why it is therefore inaccurate and unconstitutional to use market-oriented approaches to analyzing the illegality of (M&A)s under current U.S. antitrust law; outlines appropriate non-market-oriented protocols for determining the illegality of (M&A)s under the Sherman and Clayton Acts—whether the (M or A) was motivated by specific anticompetitive intent or would tend to lessen competition; delineates the liberal conception of justice and various egalitarian conceptions of the moral good and argues that in the U.S. those moral norms should be used to evaluate antitrust policies; outlines the protocol that is economically efficient to use to predict the economic efficiency of particular (M or A)s or particular (M&A) policies; and considers the relevance of the economic efficiency and competitive impact of any (M or A) or any (M&A)-focused antitrust policy for its moral desirability.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"318 - 358"},"PeriodicalIF":0.0,"publicationDate":"2023-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48031840","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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