{"title":"What Is an Antitrust Problem, Anyway? Toward Antitrust Unlimited","authors":"Salil K. Mehra","doi":"10.1177/0003603X231163214","DOIUrl":"https://doi.org/10.1177/0003603X231163214","url":null,"abstract":"What is it we talk about when we talk about antitrust? Frequently, a call for antitrust action at the frontier of the field is met by the response that the issue in question is “not an antitrust problem.” Things we were told pre-2020 were not “antitrust problems,” it ran the gamut from “patent holdup” and forcing a buyer to take an unwanted product to fake news and privacy breaches. Surprisingly, however, “antitrust problem” is not a well-defined term. As this has been pointed out, U.S. antitrust law as it exists today does not punish all ends that injure consumer welfare—for example, it is explicitly legal to possess a monopoly, and to use it to restrict output and charge monopoly prices. Nor does antitrust punish all means that injure consumer welfare—fraud and deception can injure consumer welfare, but without more they are not actionable under the antitrust laws. Post-2020, we find ourselves in an era in which policymakers are asking, not without some pushback, whether economic inequality, racial disparities, and decades of falling or stagnant wages can and should be addressed as problems by antitrust law. To define “antitrust problem,” we must consider what antitrust is ultimately supposed to protect: the benefits for Americans of a national economic system based on market competition. Displacing such a system, and thereby depriving consumers of the benefits of such a system, is at the heart of what antitrust was designed to accomplish—even if contemporary antitrust doctrine paints in much narrower brushstrokes.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"191 - 204"},"PeriodicalIF":0.0,"publicationDate":"2023-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42740232","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 Flawed Analysis Underlying Calls for Antitrust Reform: An Assessment of Lina Khan’s Amazon’s Antitrust Paradox","authors":"R. Atkinson, Michael R. Ward","doi":"10.1177/0003603X231163011","DOIUrl":"https://doi.org/10.1177/0003603X231163011","url":null,"abstract":"In her law journal article Amazon’s Antitrust Paradox, Lina Khan argued, using Amazon as an example, that current antitrust doctrine cannot identify certain types of anticompetitive conduct in platform and data-driven markets and, consequently, reforming antitrust is necessary to correct these deficiencies. Khan’s analysis of Amazon’s conduct and the conclusions she drew from it are flawed because she ignored or misapplied the economics of two-sided markets, mischaracterized competitive conditions, and did not consider the pro-competitive effects of Amazon’s conduct. In this article, we review the economics of two-sided markets and then assess Khan’s analysis of alleged predation in e-books and in the online sale of diapers, as well as alleged anticompetitive implications of Amazon’s vertical integration into logistics and its use of data. A careful assessment of Amazon’s conduct does not support Khan’s conclusion that antitrust reform is necessary because she has not demonstrated that Amazon’s conduct is anticompetitive.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"205 - 233"},"PeriodicalIF":0.0,"publicationDate":"2023-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47395471","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 Friction Paradox: Intermediaries, Competition, and Efficiency","authors":"Barak Orbach","doi":"10.1177/0003603X231162999","DOIUrl":"https://doi.org/10.1177/0003603X231162999","url":null,"abstract":"Commentators sometimes say that the elimination of impediments to trade—namely, market friction—tends to expand trade and foster competition. This casual assumption is known to be erroneous. Antitrust law recognizes that restraints of trade—which are forms of market friction—are often pro-competitive and frequently have both pro- and anticompetitive effects. Accordingly, antitrust law prohibits unreasonable restraints of trade, but not all restraints of trade. Trust-busting advocates promote a different approach to market friction. They argue that the antitrust laws intend to maintain fragmented industries and favor small businesses. This approach, which has been embraced by the antitrust agencies in recent years, implies that high-friction markets are more competitive than low-friction markets. It is an expression of a phenomenon that can be called the “ friction paradox ”: the elimination of market friction is desirable until this goal is accomplished. Notable examples of the friction paradox include hostility toward new generations of market intermediaries, such as supermarkets, chain stores, department stores, big-box stores, digital platforms, and digital ecosystems. This article observes that antipathy for large intermediaries results in a willingness to sacrifice the core benefits of competition—low prices, convenience, efficiency, and innovation. It, therefore, argues that antitrust expressions of the friction paradox place competition policy at war with itself.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"234 - 249"},"PeriodicalIF":0.0,"publicationDate":"2023-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46550496","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":"Analyzing Competition in the Online Economy","authors":"Victor Glass, T. Tardiff","doi":"10.1177/0003603X231163001","DOIUrl":"https://doi.org/10.1177/0003603X231163001","url":null,"abstract":"Since economic analysis of the workings of the online economy is in its early stages, detecting anticompetitive behavior remains challenging. There have been some insights from models that explain how two-sided markets work, but the practical uses of these models are limited thus far. More research is necessary on the definition and operations of platforms of different sizes and with different objectives, for example, the identification of data clustering and flows related to product clustering and information production and the relationships between data, information, and innovation. Furthermore, corporate culture, which can produce cultural clashes within an organization, may influence both (anti)competitive behavior and innovation. The cultural issue becomes even more complex when evaluating whether a merger would result in both innovation and the abuse of market power. This paper develops an overview of the technology and operations of the online economy as a start toward informing competition and antitrust policy. We present a technical overview that becomes a starting point for understanding potential areas of excessive market power. We also examine market dynamics from the large platforms’ points of view to understand where they believe the online economy is heading.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"167 - 190"},"PeriodicalIF":0.0,"publicationDate":"2023-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42560909","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":"Populist Antitrust: The Case of FTC v. Facebook","authors":"T. Hazlett","doi":"10.1177/0003603X231163218","DOIUrl":"https://doi.org/10.1177/0003603X231163218","url":null,"abstract":"A novel theory of antitrust law may be tested in the case of Federal Trade Commission (FTC) v. Facebook. It focuses on how pricing might be monopolistic even when the goods delivered to end users are zero-priced. While there is considerable political momentum behind a regulatory push to toughen antitrust sanctions on digital platforms in general and Facebook in particular, the economic theory behind the Government’s antitrust case is shown to be uncompelling. That does not mean it will necessarily be rejected by a given court, but the chances of the case succeeding and then surviving the full gamut of appeals is low. However, that predicted outcome may well calibrate the considerable space between the existing legal equilibrium and an emerging electoral policy equilibrium. If so, the expected outcome may well fuel the populist movement pushing legislation to fundamentally alter the antitrust statutes.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"250 - 262"},"PeriodicalIF":0.0,"publicationDate":"2023-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47043564","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":"A Consumer Divided Cannot Stand","authors":"Shubha Ghosh","doi":"10.1177/0003603X231163000","DOIUrl":"https://doi.org/10.1177/0003603X231163000","url":null,"abstract":"Should product disparagement give rise to an antitrust claim of monopolization or attempted monopolization? Majority of the courts have said no while some scholars are skeptical of these decisions. This article examines how conflicting visions of the consumer inform this debate. The conventional wisdom is that antitrust claims should adopt the principle of consumer welfare maximization with the assumption of the rational consumer, protected by product disparagement laws independent of antitrust. But if the consumer is not rational, the application of the consumer welfare standard needs to be re-examined. Specifically, product disparagement and antitrust claims are not independent or separable. This article examines the implications of the consumer division and examines both the consumer welfare assumption of conventional antitrust and its neo-Brandeisian critiques.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"307 - 317"},"PeriodicalIF":0.0,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42927477","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}
Danial Asmat, Margaret C. Levenstein, V. Suslow, Z. Wang
{"title":"Swimming in Pools: Collusion in the Salmon Market","authors":"Danial Asmat, Margaret C. Levenstein, V. Suslow, Z. Wang","doi":"10.1177/0003603X221150368","DOIUrl":"https://doi.org/10.1177/0003603X221150368","url":null,"abstract":"We study the events alleged in recent Norwegian salmon industry antitrust cases to explore the relationship between vertical integration, public price indexes, and collusion. The salmon market provides an intriguing opportunity to study these issues, as there was a vertical merger followed by a reformulation of the methodology by which prices were reported for a new price index. We explore whether the confluence of the merger and the creation of the Nasdaq price index is associated with evidence consistent with collusion. JEL codes: L13, L41, L42, Q22","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"137 - 153"},"PeriodicalIF":0.0,"publicationDate":"2023-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45829942","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":"Monopsony Power and Coordination in the Broiler Industry","authors":"E. Ribeiro","doi":"10.1177/0003603X221149332","DOIUrl":"https://doi.org/10.1177/0003603X221149332","url":null,"abstract":"The production of broilers is a well-known example of integration of food processors with growers. Tournament contracts are the norm in the industry, where processors provide chicks, feed, and veterinary supplies to the growers. The industry has come under antitrust scrutiny on several cases where processors have allegedly colluded to exercise market power both in the input and in the output markets and unilaterally exercised monopsony power. This article discusses the possible role that the integration model of contracting with growers may have on the monopsony power and collusion in the input market. In the case of confirmed collusion at the input market, damage compensation may be due. We present formulae that may be used to calculate damages in a buyer cartel.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"24 - 46"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44940737","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":"(Lack of) Competition, Coordination, and Information Sharing in the Pork Industry: United States, 2009–2020","authors":"J. Donna, Anita Walsh","doi":"10.2139/ssrn.4191689","DOIUrl":"https://doi.org/10.2139/ssrn.4191689","url":null,"abstract":"In 2020, an antitrust lawsuit was filed against the Pork Integrators alleging a §1 Sherman Act violation. At the center of the Lawsuit, there is an alleged exchange of atomistic information about the Pork integrators’ operations using Agri Stats, Inc. as a clearinghouse. We use the Supreme Court benchmark in American Column & Lumber to discuss two questions that arise from the Lawsuit. The first is whether the association of Pork Integrators and Agri Stats, Inc., resulted in the restraint of interstate commerce, the main specific issue at stake in the pork Lawsuit. The second is whether information-exchange agreements using clearinghouses like Agri Stats, Inc., lessen competition and offend U.S. antitrust law, a more general issue beyond the pork Lawsuit. We find that there appears to be ample evidence in the Lawsuit to merit prosecution regarding both trade restraints and information-sharing agreements. We conclude by discussing the role of the Agencies in setting the standards in information-exchange agreements.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"117 - 136"},"PeriodicalIF":0.0,"publicationDate":"2023-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48999393","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":"Meatpackers Feed on Fed Cattle","authors":"Brianna L. Alderman","doi":"10.1177/0003603X221149365","DOIUrl":"https://doi.org/10.1177/0003603X221149365","url":null,"abstract":"There are numerous accusations of collusion in protein markets throughout the United States. The cattle market is no exception. The four major meatpackers stand accused of acting in concert to lower the quantity of cattle purchased in the cash market for fed cattle. The plaintiffs in these cases allege that these meatpackers have purposefully depressed the price they pay to various cattle ranchers and feedlot operators. This article explores the allegations brought forth in one of these complaints, as well as the economic consequences resulting from the formation of a cartel in this market if a collusive agreement truly exists.","PeriodicalId":36832,"journal":{"name":"Antitrust Bulletin","volume":"68 1","pages":"88 - 106"},"PeriodicalIF":0.0,"publicationDate":"2023-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49469226","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}