This article examines the bad and ugly as the US federal agencies seek to rejuvenate competition. The bad is legislative hiatus to update the antitrust laws for the digital economy. The ugly is when courts push their own economic beliefs, without regard for the congressional intent and aims of the antitrust laws. Regardless of who wins, the rule of law (and those most dependent on the antitrust law) suffer. To correct America's market power problem, the article proposes restoring the constitutional balance, where the courts adjudicate, the legislature legislates, and enforcers enforce.
{"title":"The good, the bad, and the ugly of US antitrust","authors":"M. Stucke","doi":"10.1093/jaenfo/jnad038","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad038","url":null,"abstract":"\u0000 This article examines the bad and ugly as the US federal agencies seek to rejuvenate competition. The bad is legislative hiatus to update the antitrust laws for the digital economy. The ugly is when courts push their own economic beliefs, without regard for the congressional intent and aims of the antitrust laws. Regardless of who wins, the rule of law (and those most dependent on the antitrust law) suffer. To correct America's market power problem, the article proposes restoring the constitutional balance, where the courts adjudicate, the legislature legislates, and enforcers enforce.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43223354","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}
{"title":"The President’s role in antitrust policy","authors":"Tim Wu","doi":"10.1093/jaenfo/jnad034","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad034","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43013615","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}
Journal Article Common sense returns to antitrust Get access Stacy Mitchell Stacy Mitchell Institute for Local Self-Reliance, Minneapolis, MN 55406, USA Corresponding author: E-mail: smitchell@ilsr.org Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, Volume 11, Issue 2, July 2023, Pages 236–241, https://doi.org/10.1093/jaenfo/jnad032 Published: 21 June 2023
{"title":"Common sense returns to antitrust","authors":"Stacy Mitchell","doi":"10.1093/jaenfo/jnad032","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad032","url":null,"abstract":"Journal Article Common sense returns to antitrust Get access Stacy Mitchell Stacy Mitchell Institute for Local Self-Reliance, Minneapolis, MN 55406, USA Corresponding author: E-mail: smitchell@ilsr.org Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, Volume 11, Issue 2, July 2023, Pages 236–241, https://doi.org/10.1093/jaenfo/jnad032 Published: 21 June 2023","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135089608","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}
Abstract Combining historical, conceptual, and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: What limits European Union (EU) competition law places on the adoption and application of national competition and other laws? The relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. There are two exceptions to the rule in Article 3(1), under which national competition authorities and courts must apply EU competition law when applying their national competition laws, with primacy for EU provisions: Article 3(2) leaves room for ‘stricter’ national competition rules on unilateral conduct, and Article 3(3) for national rules pursuing a ‘predominantly different objective’. The solution offered by Article 3 is not workable. Through a historical study of the political discussions preceding Article 3’s adoption, a conceptual analysis of potential interpretations, and a systematic content analysis of French and German practice, this article reveals the lack of a dividing line between the notions of national competition laws and other laws. It calls for reform of Article 3 to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.
{"title":"Article 3 of Regulation 1/2003: a historical and empirical account of an unworkable compromise","authors":"Or Brook, Magali Eben","doi":"10.1093/jaenfo/jnad037","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad037","url":null,"abstract":"Abstract Combining historical, conceptual, and empirical approaches, this article studies one of the most fundamental, yet underexplored, questions surrounding Regulation 1/2003: What limits European Union (EU) competition law places on the adoption and application of national competition and other laws? The relationship between EU competition and national laws was supposedly settled with the adoption of Regulation 1/2003. There are two exceptions to the rule in Article 3(1), under which national competition authorities and courts must apply EU competition law when applying their national competition laws, with primacy for EU provisions: Article 3(2) leaves room for ‘stricter’ national competition rules on unilateral conduct, and Article 3(3) for national rules pursuing a ‘predominantly different objective’. The solution offered by Article 3 is not workable. Through a historical study of the political discussions preceding Article 3’s adoption, a conceptual analysis of potential interpretations, and a systematic content analysis of French and German practice, this article reveals the lack of a dividing line between the notions of national competition laws and other laws. It calls for reform of Article 3 to ensure that conduct that should be governed by EU law is not assessed under national rules and standards that differ from one Member State to another.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"134 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135238420","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}
Journal Article Still (at least) one decade behind: US competition policy in the healthcare industry Get access Barak D Richman Barak D Richman School of Law, Duke University, Durham, NC, USAClinical Excellence Research Center, Stanford University School of Medicine, Palo Alto, CA, USA Corresponding author: E-mail: richman@law.duke.edu Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, Volume 11, Issue 2, July 2023, Pages 265–271, https://doi.org/10.1093/jaenfo/jnad035 Published: 20 June 2023
{"title":"Still (at least) one decade behind: US competition policy in the healthcare industry","authors":"Barak D Richman","doi":"10.1093/jaenfo/jnad035","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad035","url":null,"abstract":"Journal Article Still (at least) one decade behind: US competition policy in the healthcare industry Get access Barak D Richman Barak D Richman School of Law, Duke University, Durham, NC, USAClinical Excellence Research Center, Stanford University School of Medicine, Palo Alto, CA, USA Corresponding author: E-mail: richman@law.duke.edu Search for other works by this author on: Oxford Academic Google Scholar Journal of Antitrust Enforcement, Volume 11, Issue 2, July 2023, Pages 265–271, https://doi.org/10.1093/jaenfo/jnad035 Published: 20 June 2023","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135187188","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}
{"title":"Reflections on the revolution in antitrust","authors":"Daniel Francis","doi":"10.1093/jaenfo/jnad036","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad036","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47906150","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}
{"title":"On the virtue and value of ‘little’ monopolization cases","authors":"Andrew I. Gavil","doi":"10.1093/jaenfo/jnad033","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad033","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44761474","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}
Like many competition agencies and governments around the world, the Australian Competition and Consumer Commission has formed the view that ex ante regulation is a necessary complement to address the competition (and consumer) harms posed by digital platforms. Our existing laws are not sufficient to address the anti-competitive conduct and corresponding harms we have observed in relation to digital platforms and the markets in which they operate. This paper explains our recommended model for regulatory reform and how it will address the competition harms that we have identified. Collaboration with international agencies has influenced our thinking in this space and continues to be important to ensure international coordination and alignment in regulatory reform. This paper concludes by looking ahead to the remainder of 2023 and beyond, as there is much work that remains to be done.
与世界各地的许多竞争机构和政府一样，澳大利亚竞争与消费者委员会(Australian competition and Consumer Commission)也认为，事前监管是解决数字平台对竞争(和消费者)造成损害的必要补充。我们现有的法律不足以解决我们在数字平台及其运营市场中观察到的反竞争行为和相应的危害。本文解释了我们推荐的监管改革模式，以及它将如何解决我们已经确定的竞争危害。与国际机构的合作影响了我们在这一领域的思维，对于确保监管改革方面的国际协调和一致仍然很重要。本文最后展望了2023年及以后的剩余时间，因为仍有许多工作要做。
{"title":"Regulating digital platforms: why, how, and why now","authors":"Gina Cass-Gottlieb","doi":"10.1093/jaenfo/jnad013","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad013","url":null,"abstract":"\u0000 Like many competition agencies and governments around the world, the Australian Competition and Consumer Commission has formed the view that ex ante regulation is a necessary complement to address the competition (and consumer) harms posed by digital platforms. Our existing laws are not sufficient to address the anti-competitive conduct and corresponding harms we have observed in relation to digital platforms and the markets in which they operate. This paper explains our recommended model for regulatory reform and how it will address the competition harms that we have identified. Collaboration with international agencies has influenced our thinking in this space and continues to be important to ensure international coordination and alignment in regulatory reform. This paper concludes by looking ahead to the remainder of 2023 and beyond, as there is much work that remains to be done.","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45396721","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}
{"title":"Maybe we have all been wrong about antitrust law","authors":"A. Melamed","doi":"10.1093/jaenfo/jnad021","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad021","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43720940","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}
{"title":"The New Brandeisians are here","authors":"T. Calvani, Thomas Ensign","doi":"10.1093/jaenfo/jnad017","DOIUrl":"https://doi.org/10.1093/jaenfo/jnad017","url":null,"abstract":"","PeriodicalId":42471,"journal":{"name":"Journal of Antitrust Enforcement","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47168085","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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