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Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law

Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law
Author: Richard S. Markovits
Publisher: Springer Science & Business Media
Total Pages: 799
Release: 2014-05-22
Genre: Political Science
ISBN: 364224307X

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This volume (1) defines the specific-anticompetitive-intent, lessening-competition, distorting-competition, and exploitative-abuse tests of illegality promulgated by U.S. and/or E.U. antitrust law, (2) compares the efficiency defenses promulgated by U.S. and E.U. antitrust law, (3) compares the conduct-coverage of the various U.S. and E.U. antitrust laws, (4) defines price competition and quality-or-variety-increasing-investment (QV-investment) competition and explains why they should be analyzed separately, (5) defines the components of individualized-pricing and across-the-board-pricing sellers’ price minus marginal cost gaps and analyses each’s determinants, (6) defines the determinants of the intensity of QV-investment competition and explains how they determine that intensity, (7) demonstrates that definitions of both classical and antitrust markets are inevitably arbitrary, not just at their periphery but comprehensively, (8) criticizes the various protocols for market definition recommended/used by scholars, the U.S. antitrust agencies, the European Commission, and U.S. and E.U. courts, (9) explains that a firm’s economic (market) power or dominance depends on its power over both price and QV investment and demonstrates that, even if markets could be defined non-arbitrarily, a firm’s economic power could not be predicted from its market share, (10) articulates a definition of “oligopolistic conduct” that some economists have implicitly used–conduct whose perpetrator-perceived ex ante profitability depended critically on the perpetrator’s belief that its rivals’ responses would be affected by their belief that it could react to their responses, distinguishes two types of such conduct–contrived and natural–by whether it entails anticompetitive threats and/or offers, explains why this distinction is critical under U.S. but not E.U. antitrust law, analyzes the profitability of each kind of oligopolistic conduct, examines these analyses’ implications for each’s antitrust legality, and criticizes related U.S. and E.U. case-law and doctrine and scholarly positions (e.g., on the evidence that establishes the illegal oligopolistic character of pricing), and (11) executes parallel analyses of predatory conduct--e.g., criticizes various arguments for the inevitable unprofitability of predatory pricing, the various tests that economists/U.S. courts advocate using/use to determine whether pricing is predatory, and two analyses by economists of the conditions under which QV investment and systems rivalry are predatory and examines the conditions under which production-process research, plant-modernization, and long-term full-requirements contracts are predatory.


Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law

Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law
Author: Richard S. Markovits
Publisher: Springer Science & Business Media
Total Pages: 728
Release: 2014-05-22
Genre: Political Science
ISBN: 3642243134

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Volume 2 uses the economic and legal concepts/theories of Volume 1 to (1) analyze the U.S. and E.U. antitrust legality of mergers, joint ventures, and the pricing-technique and contractual/sales-policy distributor-control surrogates for vertical integration and (2) assess related positions of scholars and U.S. and E.U. antitrust officials. Its analysis of horizontal mergers (1) delineates non-market-oriented protocols for determining whether they manifest specific anticompetitive intent, would lessen competition, or are rendered lawful by the efficiencies they would generate, (2) criticizes the U.S. courts’ traditional market-share/market-concentration protocol, the HHI-oriented protocols of the 1992 U.S. DOJ/FTC Guidelines and the European Commission (EC) Guidelines, and the various non-market-oriented protocols the DOJ/FTC have increasingly been using, (3) argues that, although the 2010 U.S. Guidelines and DOJ/FTC officials discuss market definition as if it matters, those Guidelines actually reject market-oriented approaches, and (4) reviews the relevant U.S. and E.U. case-law. Its analysis of conglomerate mergers (1) shows that they can perform the same legitimate and competition-increasing functions as horizontal mergers and can yield illegitimate profits and lessen competition by increasing contrived oligopolistic pricing and retaliation barriers to investment, (2) analyzes the determinants of all these effects, and (3) assesses limit-price theory, the toe-hold-merger doctrine, and U.S. and E.U. case-law. Its analysis of vertical conduct (1) examines the legitimate functions of each type of such conduct, (2) delineates the conditions under which each manifests specific anticompetitive intent and/or lessens competition, and (3) assesses related U.S. and E.U. case-law and DOJ/FTC and EC positions. Its analysis of joint ventures (1) explains that they violate U.S. law only when they manifest specific anticompetitive intent while they violate E.U. law either for this reason or because they lessen competition, (2) discusses the meaning of an “ancillary restraint” and demonstrates that whether a joint-venture agreement would be illegal if it imposed no restraints and whether any restraints imposed are ancillary can be determined only through case-by-case analysis, (3) explains why scholars and officials overestimate the economic efficiency of R&D joint ventures, and (4) discusses related U.S. and E.U. case-law and DOJ/FTC and EC positions. The study’s Conclusion (1) reviews how its analyses justify its innovative conceptual systems and (2) compares U.S. and E.U. antitrust law as written and as applied.


Welfare Economics and Antitrust Policy - Vol. I

Welfare Economics and Antitrust Policy - Vol. I
Author: Richard S. Markovits
Publisher: Springer Nature
Total Pages: 368
Release: 2021-10-18
Genre: Business & Economics
ISBN: 3030798127

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This book is Volume I of a two-volume set on antitrust policy, analyzing the economic efficiency and moral desirability of various tests for antitrust legality, including those promulgated by US and EU antitrust law. The overall study consists of three parts. Part I (Chapters 1-8) introduces readers to the economic, moral, and legal concepts that play important roles in antitrust-policy analysis. Part II (Chapters 9-16) analyzes the impacts of eight types of conduct covered by antitrust policy and various possible government responses to such conduct in terms of economic efficiency, the securing of liberal moral rights, and the instantiation of various utilitarian, non-utilitarian-egalitarian, and mixed conceptions of the moral good. Part III (Chapters 17-18) provides detailed information on US antitrust law and EU competition law, and compares the extent to which—when correctly interpreted and applied—these two bodies of law could ensure economic efficiency, protect liberal moral rights, and instantiate various morally defensible conceptions of the moral good. This first volume contains Part I and the first two chapters of Part II of the overall study—the two chapters that focus on oligopolistic and predatory conduct of all kinds, respectively. The book will appeal to undergraduate and graduate students of economics and law who are interested in welfare economics, antitrust legality and the General Theory of the Second Best.


Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law I-II

Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law I-II
Author: Richard S. Markovits
Publisher: Springer
Total Pages: 0
Release: 2014-06-04
Genre: Political Science
ISBN: 9783662435557

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Vol. I (1) operationalizes the specific-anticompetitive-intent and lessening-competition tests of illegality both U.S. and E.U. antitrust law promulgate and the distorting-competition and exploitative-abuse-of-a-dominant-position tests E.U. law promulgates, (2) distinguishes these tests from an economic-inefficiency test of illegality, (3) lists the antitrust licit and illicit categories of profits conduct can yield, (4) develops conceptual systems and theories for analyzing conduct’s impact on price and quality-or-variety-increasing-investment competition, (5) demonstrates that definitions of both economic and antitrust markets are inevitably comprehensively arbitrary, (6) criticizes various market-definition protocols proposed by scholars or used by government officials, (7) explains why no market-oriented approach to measuring a firm’s economic power or conduct’s antitrust illegality can be acceptable, (8) analyzes the profitability of oligopolistic and predatory conduct of all kinds and criticizes various scholarly arguments about their profitability, (9) proposes protocols for determining whether illegal-oligopolistic or predatory conduct has taken place and criticizes various scholarly and official protocols for doing so, and (10) examines the U.S. and E.U. case-law on such conduct and the European Commission’s positions on predatory conduct. Vol. II uses non-market-oriented approaches to analyze (1) the determinants of whether horizontal mergers, conglomerate mergers, vertical mergers, vertical internal growth, the various surrogates for vertical integration, joint ventures, and other sorts of collaborative arrangements violate the specific-anticompetitive-intent or lessening-competition test of illegality--i.e., violate U.S. and E.U. antitrust law, correctly interpreted and applied, (2) the determinants of the competitive impact of a rule allowing all members of a set of product rivals to engage in any type of vertical conduct and the legal relevance of such a rule’s competitive impact, (3) the U.S. and E.U. case-law on all the above categories of conduct, and (4) the positions that the U.S. DOJ, FTC, and European Commission have taken on the appropriate way to analyze the legality of each such category of conduct and on the circumstances in which exemplars of each such category of conduct will be illegal. Vol. II concludes by comparing U.S. and E.U. antitrust law both as written and as actually interpreted and applied.


Law, Economics and Antitrust

Law, Economics and Antitrust
Author: Paddy McNutt
Publisher: Edward Elgar Publishing
Total Pages: 444
Release: 2005-01-01
Genre: Business & Economics
ISBN: 9781781958896

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. . . those who are dealing with antitrust issues the book is very useful and if somebody has already acquired the basic economic principles underlying antitrust regimes, one should read [this] book. . . Pal Bela Szilagyi and Dorina Juhasz, Erasmus Law and Economics Review The book is quite often an interesting read and provokes plenty of unexpected thoughts. . . Scholars familiar with the public choice literature and American antitrust law could benefit from the stimulating questions McNutt raises throughout and for the wealth of examples from European competition law. Scott E. Graves, The Law and Politics Book Review Patrick McNutt s book is a brilliant exposé of the interaction between law, economics and antitrust. The author, an economist and distinguished regulator, handles both the legal and economic material deftly. It is provocative particularly when dealing with issues such as the efficiency of competition and the effectiveness of antitrust rules. His case-studies are particularly compelling. The book is written with huge flair and great learning. It combines theoretical and practical considerations. The comparative coverage is excellent. A "must-read" for all interested in law and economics. Antitrust specialists will discover many novel and valid insights. David O Keeffe, University College London, UK and College of Europe, Bruges, Belgium This book continually stimulates the reader to think about the issues in non-standard and illuminating ways, following new and significant directions. Yet the discussion always is authoritatively grounded in the author s extensive knowledge of the pertinent law and the relevant economic analysis. William J. Baumol, New York University, US and Princeton University, US Professor McNutt provides a refreshing and different perspective on the important fundamental issues underlying competition law and policy. Barry E. Hawk, Skadden, Arps, Slate, Meagher & Flom LLP, US In this accessible yet rigorous textbook, Patrick McNutt presents a clear and refreshing approach to a wide range of topics in law, economics and antitrust. The issues covered include duty and obligation, contracting, liability, property rights, efficient entry, compensation, oligopoly pricing, issues in strategic antitrust and merger analysis. Using a selection of case studies where appropriate, and examples based in game theory, the book examines these issues from both a law and economics and a microeconomics perspective. Emphasis is placed on a thorough assessment of the economic and legal arguments, blending the rigours of microeconomic analysis with common law standards. The analysis contained in the book will not only review, and indeed adapt neoclassical economic analysis but will also apply some of the methodology from the relatively new paradigm known as law and economics to many of the issues. The book also addresses the increasing overlap between emerging approaches in public choice and in law and economics. Practitioners in competition law and regulation of utilities will draw great value from this original and pertinent volume, as will scholars in the areas of regulation, competition law, competition policy and law and economics.


Welfare Economics and Antitrust Policy — Vol. II

Welfare Economics and Antitrust Policy — Vol. II
Author: Richard S. Markovits
Publisher: Springer Nature
Total Pages: 407
Release: 2022-11-07
Genre: Business & Economics
ISBN: 3030964825

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This book is Volume II of a two-volume set on antitrust policy, analyzing the economic efficiency and moral desirability of various kinds of antitrust-policy-coverable conduct and various possible government responses to such conduct, including US and EU antitrust law. The overall study consists of three parts. Part I (Chapters 1-8) introduces readers to the economic, moral, and legal concepts that play important roles in antitrust-policy analysis. Part II (Chapters 9-16) analyzes the impacts of eight types of conduct covered by antitrust policy and various possible government responses to such conduct in terms of their economic efficiency, their impact on liberal moral rights, and their instantiation of various utilitarian and other egalitarian conceptions of the moral good. Part III (Chapters 17-18) provides detailed information on US antitrust law and EU competition law and compares the extent to which—when correctly interpreted and applied—these two bodies of law could increase economic efficiency, protect liberal moral rights, and instantiate various morally defensible conceptions of the moral good. This second volume contains the last 6 chapters of Part II, which focus respectively on horizontal (M&A)s, conglomerate (M&A)s, surrogates for vertical integration, vertical (M&A)s, joint ventures, and internal growth and Part III, which focuses on US antitrust law and EU competition law. The book will appeal to undergraduate and graduate students of economics and law who are interested in welfare economics, antitrust policy, and The General Theory of Second Best.


The Antitrust Paradox

The Antitrust Paradox
Author: Robert Bork
Publisher:
Total Pages: 536
Release: 2021-02-22
Genre:
ISBN: 9781736089712

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The most important book on antitrust ever written. It shows how antitrust suits adversely affect the consumer by encouraging a costly form of protection for inefficient and uncompetitive small businesses.


Innovation Markets and Competition Analysis

Innovation Markets and Competition Analysis
Author: Marcus Glader
Publisher: Edward Elgar Publishing
Total Pages: 361
Release: 2006-01-01
Genre: Law
ISBN: 1847201687

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The book is warmly recommended to practitioners and academics from both the legal and the economic field. Guido Westkamp, Journal of Intellectual Property Law and Practice . . . Glader offers strong commentary and case explanation, coupled with insightful analysis, in this complex area. . . This book is strong on both the relevant law, and the economics arena in which the law must be applied, and deals equally well with the US and EC principles and practice. Mark Furse, European Competition Law Review The pace and scope of technological change is increasing, but some innovative technologies take years before they give rise to saleable products. Before they do, there is competition in ideas and research, but the ideas cannot be market tested, because there are no products or services to offer to consumers. Competition law, in Europe and the USA, cannot be applied to competition in research for innovation as if it was competition between products. Completely different problems arise and a completely different approach is needed. This book, the first on innovation markets, shows how this new approach has been used by competition authorities on both sides of the Atlantic in a wide variety of cases. It analyses in depth and detail the comparative law and economics of the problems arising from the different stages of these markets . It considers how far conclusions can be drawn about the future and comes to interesting, practical and sensible conclusions. And it avoids both unjustified scepticism and exaggerated enthusiasm about the theories of innovation markets. John Temple Lang, Cleary Gottlieb Steen & Hamilton LLP, Brussels and London; Trinity College Dublin, Ireland and Oxford University, UK This book examines the legal standards and their underlying economic rationale for the protection of competition in the innovation process, in both European competition law and American antitrust law. Apart from relevant regulatory frameworks, the author also reviews a range of case laws, which assess whether a transaction or unilateral conduct would limit market participants incentives and abilities for continued innovation and future competition. At the centre of this study is the innovation market concept. This concept entails the delineation, for purposes of antitrust analysis, of an upstream market for competing R&D. Questions of market definition, the assessment of innovation competition in defined markets, the role of efficiencies in the appraisal of transactions and possible remedies to alleviate anti-competitive effects are also explored. Updating the field of research in light of new developments and broadening and deepening the categorization and analysis of the innovation market area, this book will be of great interest to academics, practitioners and consultants, and also public policymakers.