Antitrust: Antitrust Law & Policy eJournal最新文献

{"title":"Toward the Peaceful Coexistence of Patent and Antitrust Law","authors":"R. Epstein","doi":"10.2139/ssrn.3733691","DOIUrl":"https://doi.org/10.2139/ssrn.3733691","url":null,"abstract":"This chapter explores the interrelationship between these two basic provisions, both as a matter of general theory and through their development in case law over the past 130 years—which spans multiple eras of technological innovation. It is easy to find cases where patent law appears to move in one direction and antitrust law in the opposite. But as a general matter, this chapter defends the thesis that, as the Federal Circuit has written, “[t]he patent and antitrust laws are complementary, the patent system serving to encourage invention and the bringing of new products to market by adjusting investment-based risk, and the antitrust laws serving to foster industrial competition.” As a descriptive matter, today, this thesis is largely, but not uniformly, respected. \u0000 \u0000More specifically, the central task of this chapter is to note how the concern with monopolization—explicit in the antitrust laws—plays a powerful, if somewhat concealed, role in the articulation of patent law as well. As is always the case, any concern with monopolization is a two-edged sword: It is always important to make sure that monopoly practices do not go undetected, but it is equally important that the doctrines of both patent and antitrust law do not impose penalties for supposed monopolistic practices that ultimately turn out to be procompetitive.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133314278","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":"Error Costs in Digital Markets","authors":"Geoffrey A. Manne","doi":"10.2139/ssrn.3733662","DOIUrl":"https://doi.org/10.2139/ssrn.3733662","url":null,"abstract":"Legal decision-making and enforcement under uncertainty are always difficult and always potentially costly. The risk of error is always present given the limits of knowledge, but it is magnified by the precedential nature of judicial decisions: an erroneous outcome affects not only the parties to a particular case, but also all subsequent economic actors operating in “the shadow of the law.” The inherent uncertainty in judicial decision-making is further exacerbated in the antitrust context where liability turns on the difficult-to-discern economic effects of challenged conduct. And this difficulty is still further magnified when antitrust decisions are made in innovative, fast-moving, poorly-understood, or novel market settings—attributes that aptly describe today’s digital economy.<br><br>Rational decision-makers will undertake enforcement and adjudication decisions with an eye toward maximizing social welfare (or, at the very least, ensuring that nominal benefits outweigh costs). But “[i]n many contexts, we simply do not know what the consequences of our choices will be. Smart people can make guesses based on the best science, data, and models, but they cannot eliminate the uncertainty.” Because uncertainty is pervasive, we have developed certain heuristics to help mitigate both the direct and indirect costs of decision-making under uncertainty, in order to increase the likelihood of reaching enforcement and judicial decisions that are on net beneficial for society. One of these is the error-cost framework.<br><br>In simple terms, the objective of the error-cost framework is to ensure that regulatory rules, enforcement decisions, and judicial outcomes minimize the expected cost of (1) erroneous condemnation and deterrence of beneficial conduct (“false positives,” or “Type I errors”); (2) erroneous allowance and under-deterrence of harmful conduct (“false negatives,” or “Type II errors”); and (3) the costs of administering the system (including the cost of making and enforcing rules and judicial decisions, the costs of obtaining and evaluating information and evidence relevant to decision-making, and the costs of compliance).<br><br>In the antitrust context, a further premise of the error-cost approach is commonly (although not uncontroversially) identified: the assumption that, all else equal, Type I errors are relatively more costly than Type II errors. “Mistaken inferences and the resulting false condemnations ‘are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’” Thus the error-cost approach in antitrust typically takes on a more normative objective: a heightened concern with avoiding the over-deterrence of procompetitive activity through the erroneous condemnation of beneficial conduct in precedent-setting judicial decisions. Various aspects of antitrust doctrine—ranging from antitrust pleading standards to the market definition exercise to the assignment of evidentiary burdens—have evolve","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125379913","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":"Occupational Licensing in Digital Markets","authors":"M. Ohlhausen","doi":"10.2139/ssrn.3733750","DOIUrl":"https://doi.org/10.2139/ssrn.3733750","url":null,"abstract":"This chapter proceeds as follows. Section I begins with the background and recent history of the state action doctrine and its relation to occupational licensure, addressing the recent cases listed above. Section II discusses recent and current litigation involving competitors using the ‘Brother, May I?’ approach to prevent new technology in the digital economy from entering the market. Section III argues that the FTC’s targeted efforts in North Carolina Dental and Teladoc should extend to current issues in the digital economy by narrowing the use of occupational licensure for health services to regulations that actually protect health and safety. Section IV discusses the Commerce Clause implications caused by occupational licensure on new technology in the digital economy. Section V concludes this chapter.<br><br>","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"165 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126747984","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":"Business Law and Economics for Civil Law Systems: Competition Law","authors":"P. Larouche","doi":"10.4337/9781788118286","DOIUrl":"https://doi.org/10.4337/9781788118286","url":null,"abstract":"Part of a larger textbook on business law and economics, this Chapter surveys how economic analysis has been applied to competition, or antitrust, law, in the main jurisdictions on both sides of the Atlantic. The first part chronicles the successive schools of thought in the US and the EU, with emphasis on their link with the economics of the time and place where each school took shape. The second part illustrates how, in practice, the introduction of economics into the application of the law has led to trans-Atlantic convergence to a large extent, except as concerns the treatment of dominant firms. In the third part, the tools of law and economics are brought to bear to assess whether the now widespread use of economics in the application of the law has actually improved the effectiveness and efficiency of the law.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117265311","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":"Collusion in Quality-Segmented Markets","authors":"Iwan Bos, Marco A. Marini","doi":"10.2139/ssrn.3726040","DOIUrl":"https://doi.org/10.2139/ssrn.3726040","url":null,"abstract":"This paper analyzes price collusion in a repeated game with two submarkets; a standard and a premium quality segment. Within this setting, we study four types of price-?xing agreement: (i) a segment-wide cartel in the premium submarket only, (ii) a segment-wide cartel in the standard submarket only, (iii) two segment-wide cartels, and (iv) an industry-wide cartel. We present a complete characterization of the collusive pricing equilibrium and examine the corresponding e¤ect on market shares and welfare. Partial cartels operating in a su¢ ciently large segment lose market share and the industry-wide cartel prefers to maintain market shares at pre-collusive levels. The impact on consumer and social welfare critically depends on the cost of producing quality. Moreover, given that there is a cartel, more collusion can be bene?cial for society as a whole.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127680727","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":"Will China's New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation?","authors":"J. Contreras, Yang Yu","doi":"10.2139/ssrn.3725921","DOIUrl":"https://doi.org/10.2139/ssrn.3725921","url":null,"abstract":"By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. Second, it prohibits InterDigital from seeking a determination of a global FRAND rate for its 3G/4G patents anywhere in the world. In view of these two recent cases, China has clearly joined the international race to be the jurisdiction of choice for determining FRAND royalty rates in global disputes involving standard-essential patents.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129099276","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":"Some Reactions to “Reactionary Antitrust”","authors":"Seth B. Sacher, John M. Yun","doi":"10.2139/ssrn.3729460","DOIUrl":"https://doi.org/10.2139/ssrn.3729460","url":null,"abstract":"In a recent article, Professor John Newman describes and offers a defense of neo-antitrust, and critiques the position taken by those defending modern antitrust. Professor Newman distinguishes between what he sees as merely “conservative” responses—those opposed to the neo-antitrust policy positions, but not opposed to debating the issues they raise—and certain ideas that are “lightly derogatory” and exhibit “logical fallacies.” He proposes the provocative moniker “reactionary antitrust” to designate ideas that fall under this latter rubric. \u0000 \u0000In this article, we respond to Professor Newman’s critiques of the arguments made by critics of neo-antitrust. Broadly, his claim is that the critics are committing a number of logical fallacies; setting up and knocking down straw men; mistakenly calling their own position in the antitrust debate “apolitical”; and ignoring certain key arguments.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127964768","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":"Quality and Imperfect Competition","authors":"Germain Gaudin","doi":"10.2139/ssrn.3693363","DOIUrl":"https://doi.org/10.2139/ssrn.3693363","url":null,"abstract":"We provide a framework of analysis for models of imperfect competition when firms compete in quality as well as in another instrument (either price or quantity). The equilibrium can notably be characterized through a quality parameter, which depends on firms' diversion ratios. Extending the monopoly analysis of Spence (1975), we find that, together with the change in the marginal value of quality as the absolute willingness-to-pay falls, our quality parameter is the key determinant of quality distortions under imperfect competition. We also use our framework to analyze the effects of technology shocks and commodity taxes, as well as horizontal mergers. Our approach encompasses several standard models of imperfect competition, and we provide various extensions to our baseline model.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132913126","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":"Unintended Consequences: Abolishing the Direct Purchaser Rule as a Threat to Private Antitrust Enforcement","authors":"Joshua P. Davis, Anupama Reddy","doi":"10.2139/ssrn.3699110","DOIUrl":"https://doi.org/10.2139/ssrn.3699110","url":null,"abstract":"Proposals to abandon the direct purchaser rule under federal antitrust law—and to allow indirect purchasers to bring claims for damages—sound as if they would enhance private antitrust enforcement. That presumably is why they have been attractive to some progressives. After all, expanding who may sue could only increase recoveries, promoting the goals of compensation and deterrence, right? Wrong. Enter the rule of unintended consequences. What is easily missed is that federal class certification doctrine has become entwined with the direct purchaser rule. Overturning Illinois Brick—allowing indirect purchasers to sue for damages under federal law—could well overturn Hanover Shoe—permitting a pass-on defense. Courts have imposed standards to certify a class that are strict and often might not be met without Hanover Shoe. As a result, repealing the direct purchaser rule could make certifying direct purchaser classes much harder, on the whole undermining private enforcement of antitrust laws.","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130127967","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":"Building an Efficient Regulation in the Digital Economy","authors":"Christophe Carugati","doi":"10.2139/ssrn.3739719","DOIUrl":"https://doi.org/10.2139/ssrn.3739719","url":null,"abstract":"To regulate or not to regulate is not anymore a Shakespearian issue. The digital economy must be regulated. The question is now about how to regulate it to promote an efficient and fair competition. This paper is the section 4 of my chapter 3 of my PhD thesis “Competition Law and economics of Big Data: A new Competition Rulebook”. It presents a brief overview of the main proposals about a regulation from the Furman et al report, Crémer et al report, Schallbruch et al report, ACCC report, and Stigler report (section I). Then, it analyzes them (section II). Finally, it proposes some policy recommendations that are not included in these reports based on three principles (i) efficient competition; (ii) fair competition; and (iii) transparency and choice (section III).","PeriodicalId":439229,"journal":{"name":"Antitrust: Antitrust Law & Policy eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124382808","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}