Tying and Exclusion in FRAND Licensing: Evaluating Qualcomm (Erik Hovenkamp & Timothy Simcoe) Antitrust Source, February 2020.
In an enforcement action brought by the Federal Trade Commission, a district court recently found that Qualcomm violated the antitrust laws by engaging in anticompetitive exclusive dealing and refusing to license its standard-essential patents (SEPs) to rivals. In this article, we unpack and evaluate three aspects of the Qualcomm decision. First, we describe how the tying relationship between chips and licenses goes primarily in the opposite direction of how most commentators characterize it. Second, we consider how Qualcomm’s commitments to license its SEPs on “fair, reasonable, and nondiscriminatory” (FRAND) terms bear on the antitrust analysis. Third, we discuss how FRAND might have been used to better justify finding an antitrust duty-to-deal with competitors.
Mergers, Entry, and Consumer Welfare (Nathan Miller, Peter Caradonna & Gloria Sheu), forthcoming, February 2020.
We analyze mergers and entry in a differentiated products oligopoly model ofprice competition. We prove that any merger among incumbents is unprofitable ifit spurs entry sufficient in magnitude to preserve consumer surplus. Thus, mergersoccur in equilibrium only if barriers limit entry. Numerical simulations indicate thatwith profit-neutral mergers—the best-case for consumers—entry mitigates under30 percent of the adverse price effects and, in most cases, under 50 percent of theconsumer surplus loss. The results suggest a limited and conditional role for entryanalysis in merger review.
The Anticompetitive Effects of Covenants not to Compete (Eric Posner) Competition Policy International, January 2020.
Covenants not to compete, which prevent workers from quitting their employer and moving to a competing employer, have ambiguous effects on welfare, according to economic theory. Noncompetes may enable employers to invest in assets by protecting those assets from expropriation by workers or competitors, but noncompetes also interfere with labor market competition. Recent research, however, suggests that the anticompetitive effects of noncompetes are greater than any benefits, and thus that the existing common law regime for regulating noncompetes is too weak. A plausible step forward is to strengthen the antitrust law on noncompetes. A better antitrust law would shift the burden, allowing employers to use noncompetes only when they can prove that their use of noncompetes results in higher wages in the affected labor market.
Antitrust Law and Its Critics (A. Douglas Melamed), forthcoming, January 2020.
Antitrust law is the subject of substantial current controversy, criticism, and proposed reform. The current unease seems to reflect the confluence of four factors: rising populism, on both the left and the right, that decries free markets, globalism, and increasing inequality within the developed countries; the rise of big tech, which seems to expand without limit through scale and scope economies and network effects; a growing body of economic studies that suggest that market concentration and market power have increased in recent years; and increasing concern of libertarians about private, as well as government, power coupled with evidence of increased industry concentration. On the surface, there appears to be a conversation about the future of antitrust law between three groups; conservatives who argue that antitrust law is basically fine as it is, progressives who argue that antitrust enforcement has been too lax and that antitrust law should be adjusted but within the prevailing consumer welfare paradigm; and populist critics who have more far-reaching reform proposals. In fact, however, there are really two very separate conversations. One, between conservatives and progressives, concerns how antitrust law might best promote economic welfare. The other, pushed largely by the populists, concerns how to replace what is now known as antitrust law with alternatives that will serve other objectives, in addition to economic welfare, such as promoting an equitable distribution of wealth and of economic and political power. The two conversations seldom intersect in any meaningful way. This paper analyzes the current controversies. It explains what the consumer welfare standard means, why proposals for abandoning or replacing it are unsound, and how the two conversations have not intersected. It ends by describing ways in which the various critics and defenders of antitrust law might fruitfully join in a single conversation that addresses both antitrust and regulatory issues.
Framing the Chicago School of Antitrust Analysis (Herbert Hovenkamp & Fiona M. Scott Morton) forthcoming, November 2019.
The Chicago School of antitrust has benefitted from a great deal of law office history, written by admiring advocates rather than more dispassionate observers. This essay attempts a more neutral stance, looking at the ideology, political impulses, and economics that produced the Chicago School of antitrust policy and that account for its durability. The origins of the Chicago School lie in a strong commitment to libertarianism and nonintervention. Economic models of perfect competition best suited these goals. The early strength of the Chicago School of antitrust was that it provided simple, convincing answers to everything that was wrong with antitrust policy in the 1960s, when antitrust was characterized by over-enforcement, poor quality economics or none at all, and many internal contradictions. The Chicago School’s greatest weakness is that it did not keep up. Its leading advocates either spurned or ignored important developments in economics that gave a better accounting of an economy that was increasingly characterized by significant product differentiation, rapid innovation, networking, and strategic behavior. The Chicago School’s initial claim was that newer models of the economy lacked testability. That argument lost its credibility, however, as industrial economics experienced an empirical renaissance, nearly all of it based on various models of imperfect competition. Students getting PhDs in economics increasingly abandoned perfect competition as a useful starting point. What kept Chicago alive was the financial support of firms and others who stood to profit from less intervention. Properly designed antitrust enforcement is a public good. Its beneficiaries – consumers -- are individually small, numerous, scattered, and diverse. Those who stand to profit from nonintervention were fewer in number, individually much more powerful, and much more united in their message. As a result, the Chicago School went from being a model of enlightened economic policy to a powerful tool of regulatory capture.
Antitrust in Digital Market (John M. Newman) Vanderbilt Law Review, October 2019.
Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.But this pro-defendant position is deeply—and dangerously—flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power, conduct, and efficiencies in digital markets. Far from being self-correcting, digital markets facilitate the creation and maintenance of uniquely durable market power. Digital markets are conducive to complex anticompetitive strategies that have largely escaped regulatory scrutiny. Perhaps most importantly, digital-market conduct tends to lack significant offsetting efficiencies.As a result, the consensus view is ripe for rejection. Digital markets do require a different approach, but it must be uniquely interventionist, not unusually laissez-faire. This Article concludes by offering a set of doctrinal and policy proposals aimed at creating a more robust, vigilant, and welfare-enhancing digital antitrust enterprise.
United States v. Apple: Competition in America (Chris Sagers) Harvard University Press, September 2019.
In 2012 the Department of Justice accused Apple and five book publishers of conspiring to fix ebook prices. The evidence overwhelmingly showed an unadorned price-fixing conspiracy that cost consumers hundreds of millions of dollars. Yet before, during, and after the trial millions of Americans sided with the defendants. Pundits on the left and right condemned the government for its decision to sue, decrying Amazon’s market share, railing against a new high-tech economy, and rallying to defend beloved authors and publishers. For many, Amazon was the one that should have been put on trial. But why? One fact went unrecognized and unreckoned with: in practice, Americans have long been ambivalent about competition.
The Antitrust Challenge to Covenants Not to Compete in Employment Contracts (Eric Posner) September 2019.
Employee covenants not to compete bar workers who leave their jobs from working for a competing employer for a period of time. The common law regards noncompetes as restraints of trade and imposes a “reasonableness” standard on them; they can also be challenged under the antitrust laws. But new research suggests firms frequently abuse noncompetes, causing significant harm to workers and to the economy. The existing legal approach is inadequate because the common law offers minimal sanctions and antitrust law imposes excessive burdens of proof on plaintiffs. While antitrust law is the appropriate vehicle for challenging noncompetes because of its focus on market effects, it needs to be strengthened.
Reactionary Antitrust (John Newman) Concurrences Revue, September 2019.
Antitrust is undergoing a renaissance. New voices have emerged. Lively debate has prompted antitrust stakeholders to re-evaluate familiar concepts. Issues long considered settled have been opened for re-examination. Some have welcomed this opportunity for self-reflection. But it has also been met with hypocritical charges of politicization and populism, fallacious criticisms, and a refusal to engage with the actual core arguments of the new progressives. These new critics have famously been labeled as “Hipster Antitrust.” What has been lacking thus far is an equivalent label for the anti-progressive attack on their work. Borrowing from a recent article by Professor Herbert Hovenkamp, this essay proposes “Reactionary Antitrust.” Reactionary Antitrust is a grouping of flawed arguments more likely to discourage, rather than encourage, debate and dialogue. These include disparagement of progressives as “political” and “populist,” the imposition of impossible burdens of proof on would-be reformers, and erecting straw-man versions of opponents’ actual positions. This essay urges an end to Reactionary Antitrust. Instead of seeking to bury the critical reform movement, antitrust discourse should welcome new voices and the renewed intellectual ferment they have inspired. Given the tone of the current antitrust debates, additional framing may be warranted at the outset. Antitrust commentary has a long and troublesome history of attempting to associate particular individuals with one camp or another, instead of engaging with those individuals’ actual positions. This essay is emphatically not a critique of entire articles or schools of thought, and certainly not of particular authors. Instead, it identifies and responds directly to particular arguments and modes of argument. In other words, the essay strives to model that which it calls for: a return to the highest and best form of scholarly enterprise.
Mergers, Innovation, and Entry-Exit Dynamics: Consolidation of the Hard Disk Drive Industry, 1996-2016 (Mitsuru Igami & Kosuke Uetakez) The Review of Economic Studies, September 2019.
How far should an industry be allowed to consolidate when competition and innovation are endogenous? We find plateau-shaped equilibrium relationships between competition and innovation, with heterogeneity across time and productivity. Our counterfactual simulations suggest the currentrule-of-thumb policy, which stops mergers when three or fewer firm exist, strikes approximately the right balance between pro-competitive effects and value-destructionside effects in this dynamic welfare tradeoff.
“Do Increasing Markups Matter? Lessons from Empirical Industrial Organization” (Fiona Scott Morton, Steven T. Berry & Martin Gaynor) Journal of Economic Perspectives, Summer 2019.
This paper considers the recent literature on firm markups in light of both new and classic work in the field of Industrial Organization. We detail the shortcomings of papers that rely on discredited approaches from the “structure-conduct-performance” literature. In contrast, papers based on production function estimation have made useful progress in measuring broad trends in markups. However, industries are so heterogeneous that careful industry specific studies are also required, and sorely needed. Examples of such studies illustrate differing explanations for rising markups, including endogenous increases in fixed cost associated with lower marginal costs. In some industries there is evidence of price increases driven by mergers. To fully understand markups, we must eventually recover the key economic primitives of demand, marginal cost, and fixed and sunk costs. We end by discussing the various aspects of antitrust enforcement that may be of increasing importance regardless of the cause of increased markups.
The Misguided Assault on the Consumer Welfare Standard in the Age of Platform Markets (A. Douglas Melamed & Nicolas Petit) Review of Industrial Organization, June 2019.
In this paper, we discuss whether the consumer welfare (CW) standard needs to be replaced or revised in order for antitrust law to deal effectively with the economic challenges of the platform economy. We argue that both the general and platform-specific assaults on the CW standard are misguided, that the CW standard is capable of addressing the economic concerns that critics have raised, and that the proposed alternatives would make things worse—not better.
The American Express Case: Back to the Future (A. Douglas Melamed) Colorado Technology Law Journal, June 2019.
This paper examines what the Supreme Court’s 2018 decision in the American Express case, which is the only U.S. antitrust case that has explicitly addressed the unique issues raised by so-called platform or multi-sided markets, might tell us about the attitudes of the Court’s five-Justice majority about antitrust law.The majority opinion conflated the enduring normative contributions of the Chicago School with its embrace of empirical propositions from 40 years ago that have not stood the test of time and some of which are, in any event, not applicable to two-sided markets. The majority was willing to decide novel issues on the basis of abstract ideas about vertical restraints and free riding that were central to Chicago School analysis 40 years ago but which have since been shown to require more qualification and modification depending on factual context. The majority ignored the fact findings of the district court, and it was plainly willing to increase the risk of false negatives. Its decision was a triumph of ideology over fact-based decision-making.
Forward Contracts, Market Structure, and the Welfare Effects of Mergers (Nathan Miller & Joe Podwol). forthcoming, Journal of Industrial Economics, June 2019.
We examine how forward contracts affect economic outcomes undergeneralized market structures. In the model, forward contracts disciplinethe exercise of market power by making profit less sensitive to changesin output. This impact is greatest in markets with intermediate levelsof concentration. Mergers reduce the use of forward contracts in equi-librium and, in markets that are sufficiently concentrated, this amplifiesthe adverse effects on consumer surplus. Additional analyses of mergerprofitability and collusion are provided. Throughout, we illustrate andextend the theoretical results using Monte Carlo simulations. We discussthe practical relevance for antitrust enforcement.
Killer Acquisitions (Colleen Cunningham, Florian Ederer, & Song Ma) June 2019.
This paper argues incumbent firms may acquire innovative targets solely to discontinue the target's innovation projects and preempt future competition. We call such acquisitions "killer acquisitions." We develop a parsimonious model illustrating this phenomenon. Using pharmaceutical industry data, we show that acquired drug projects are less likely to be developed when they overlap with the acquirer's existing product portfolio, especially when the acquirer's market power is large due to weak competition or distant patent expiration. Conservative estimates indicate about 6% of acquisitions in our sample are killer acquisitions. These acquisitions disproportionately occur just below thresholds for antitrust scrutiny.
Oligopolistic Price Leadership and Mergers: The United States Beer Industry (Nathan Miller, Gloria Sheu & Matthew Weinberg), forthcoming, May 2019.
We study an infinitely-repeated game of oligopolistic price leadership in which onefirm, the leader, proposes a supermarkup over Bertrand prices to a coalition of rivals.We estimate the model with aggregate scanner data on the beer industry and find thesupermarkup accounts for 6% of price. Price leadership increases profit by 8.9% relativeto Bertrand competition, and decreases consumer surplus by nearly four times thechange in profit. We use the model to simulate the ABI/Modelo merger. The mergerrelaxes incentive compatibility constraints and increases the equilibrium supermarkup.Merger efficiencies do not mitigate—and can amplify—this coordinated effect.
Toward Controlling Discrimination in Online Ad Auctions (L. Elisa Celis, Anay Mehrotra & Nisheeth K. Vishnoi) May 2019.
Online advertising platforms are thriving due tothe customizable audiences they offer advertisers.However, recent studies show that advertisementscan be discriminatory with respect to the genderor race of the audience that sees the ad, and mayinadvertently cross ethical and/or legal bound-aries. To prevent this, we propose a constrained adauction framework that maximizes the platform’srevenue conditioned on ensuring that the audi-ence seeing an advertiser’s ad is distributed ap-propriately across sensitive types such as genderor race. Building upon Myerson’s classic work,we first present an optimal auction mechanismfor a large class of fairness constraints. Findingthe parameters of this optimal auction, however,turns out to be a non-convex problem. We showthat this non-convex problem can be reformulatedas a more structured non-convex problem withno saddle points or local-maxima; this allows usto develop a gradient-descent-based algorithm tosolve it. Our empirical results on the A1 Yahoo!dataset demonstrate that our algorithm can obtainuniform coverage across different user types foreach advertiser at a minor loss to the revenue ofthe platform, and a small change to the size of theaudience each advertiser reaches.
The Antitrust Paradigm: Restoring a Competitive Economy (Jonathan B. Baker) Harvard University Press, May 2019.
The U.S. economy is growing less competitive. Large businesses increasingly profit by taking advantage of their customers and suppliers. These firms can also use sophisticated pricing algorithms and customer data to secure substantial and persistent advantages over smaller players. In our new Gilded Age, the likes of Google and Amazon fill the roles of Standard Oil and U.S. Steel. Drawing on the latest in empirical and theoretical economics to defend the benefits of antitrust, Baker shows how enforcement and jurisprudence can be updated for the high-tech economy. His prescription is straightforward. The sooner courts and the antitrust enforcement agencies stop listening to the Chicago school and start paying attention to modern economics, the sooner Americans will reap the benefits of competition.
Markets for Information: An Introduction (Dirk Bergemann & Alessandro Bonatti) Annual Review of Economics, May 2019.
We survey a recent and growing literature on markets for information. Weoffer a comprehensive view of information markets through an integratedmodel of consumers, information intermediaries, and firms. The model em-beds a large set of applications ranging from sponsored-search advertisingto credit scores to information sharing among competitors. We then zoomin to one of the critical elements in the markets for information: the designof the information. We distinguish between ex ante sales of information (thebuyer acquires an information structure) and ex post sales (the buyer paysfor specific realizations). We relate this distinction to the different productsthat brokers, advertisers, and publishers use to trade consumer informationonline. We discuss the endogenous limits to the trade of information that de-rive from the potential adverse use of information to the consumers. Finally,we discuss recommender systems and other information filtering systemsthat use artificial intelligence to predict ratings or preferences in marketsfor indirect information.
Measuring the Incentive to Collude: The Vitamin Cartels, 1990-1999 (Mitsuru Igamiy & Takuo Sugaya) May 2019.
This paper studies the stability of the vitamincartels in the 1990s and presents a repeated-games approach to quantify “coordinated effects” of a merger. We use data and direct evidence from American courts and European agencies to show the incentive compatibility constraint (ICC) of the short-lived vitamin C cartel was likely to be violated when it actually collapsed in 1995,whereas the ICCs of the long-lived cartels (vitamins A and E, and beta carotene) were satisfied until the prosecution in 1999. Simulations suggest some mergers could haveprolonged the vitamin C cartel, but others could have further destabilized it, because both the direction and magnitude of “coordinated effects” depend not only on the number of firms but also on their cost asymmetry.
FTC v. Qualcomm: New Frontiers in the Antitrust-IP Interface (Erik Hovenkamp) Regulatory Review, May 2019.
The Federal Trade Commission recently scored a substantial victory in its antitrust suit against Qualcomm. The case represents a novel confluence of standard-setting and IP licensing issues with bedrock antitrust subjects: tying and exclusive dealing. It also takes a surprising turn in resuscitating the long-dormant doctrine of the antitrust “duty to deal.” In this short essay, I review and evaluate the court’s decision in FTC v. Qualcomm. The analysis of Qualcomm’s exclusive dealing is sound and very likely correct. However, the court’s duty-to-deal analysis sits on shakier ground, omitting consideration of potential immunity under the Patent Act and sidestepping thorny questions on the appropriate source of law.
Procompetitive Justifications in Antitrust Law, (John M. Newman) Indiana Law Journal, Spring 2019).
The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitiveeffects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.But which of these myriad justifications are valid? To leading jurists and scholars, this has remainedan “open question,” even an “absolute mystery.” Examination of the relevant case law reveals multiplecompeting approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.This Article provides answers and clarity. It identifies the market failureapproach to analysis as doctrinally correct and economically optimal. The leading alternatives pose an unacceptably high risk of error, in the form of both false positives and false negatives. Most importantly, the Article identifiesthe proper, three-stepmethod for assessing procompetitive justifications. This three-step analytical framework increases transparency and rigor, minimizes errors, and maximizes welfare.
Judge Douglas H. Ginsburg and Antitrust Law's Rule(s) of Reason (Jonathan Baker and Andrew Gavil) forthcoming, April 2019.
This essay, written for a volume in honor of Judge Douglas H. Ginsburg, explores the evolution of the rule of reason and its development into a common structured, burden shifting approach guiding judicial decisions under Sections 1 and 2 of the Sherman Act and under Section 7 of the Clayton Act. It highlights the influential role that Judge Ginsburg and the Court of Appeals for the D.C. Circuit, on which he served, played in that evolution.
Antitrust As Allocator of Coordination Rights (Sanjukta Paul) UCLA Law Review, April 2019.
This paper develops a novel framework for understanding antitrust law. Antitrust’s primary function—to allocate economic coordination rights—is discursively submerged, yet logically inescapable. Under current law, these criteria amount to a preference for coordination through concentrated control, and are treated as neutral economic principles. In reality, they constitute autonomous legal judgments that cannot be derived from an external referent.
Fissuring and the Firm Exemption (Sanjukta Paul) Law and Contemporary Problems, April 2019.
This paper applies the conceptual framework developed in Antitrust as Allocator to the business arrangements that constitute the “fissured workplace” or the gig economy, discussing the permissive antitrust doctrines that make these arrangements possible.
Five Principles for Vertical Merger Enforcement Policy (Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, & Fiona Scott Morton) April 2019.
There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on balance in the oligopoly markets that typically prompt agency review, nor set a higher evidentiary standard based on such a presumption; (iii) The agencies should evaluate claimed efficiencies resulting from vertical mergers as carefully and critically as they evaluate claimed efficiencies resulting from horizontal mergers, and require the merging parties to show that the efficiencies are verifiable, merger-specific and sufficient to reverse the potential anticompetitive effects; (iv) The agencies should decline to adopt a safe harbor for vertical mergers, even if rebuttable, except perhaps when both firms compete in unconcentrated markets; (v) The agencies should consider adopting rebuttable anticompetitive presumptions that a vertical merger harms competition when certain factual predicates are satisfied. We do not intend these presumptions to describe all the ways by which vertical mergers can harm competition, so the agencies should continue to investigate vertical mergers that raise concerns about input and customer foreclosure, loss of a disruptive or maverick firm, evasion of rate regulation or other threats to competition, even if the specific factual predicates of the presumptions are not satisfied.
Why Has Antitrust Law Failed Workers? (Ioana Elena Marinescu & Eric A. Posner) April 2019.
In the last several years, economists have learned about an antitrust problem of vast scope. Far from approximating the conditions of perfect competition as long assumed, most labor markets are characterized by monopsony — meaning that employers pay workers less than their productivity because workers lack a credible threat to quit and find a higher-paying job in the same market. Yet while antitrust law regulates labor monopsony in the same way as it regulates monopoly on the product market side, antitrust litigation against employers is rare. We document both the magnitude of labor monopsony and the paucity of cases, and argue that this “litigation gap” exists because antitrust case law, which has developed through product-side litigation, is poorly tailored to labor-side problems. We conclude with four proposals for reform of antitrust law so it can better deter labor monopsony.
“Antitrust and Innovation: Welcoming and Protecting Disruption” (Fiona Scott Morton, Giulio Federico & Carl Shapiro) Innovation Policy and Economy, April 2019.
The goal of antitrust policy is to protect and promote a vigorous competitive process. Effective rivalry spurs firms to introduce new and innovative products, as they seek to capture profitable sales from their competitors and to protect their existing sales from future challengers. In this fundamental way, competition promotes innovation. We apply this basic insight to the antitrust treatment of horizontal mergers and of exclusionary conduct by dominant firms. A merger between rivals internalizes business-stealing effects arising from their parallel innovation efforts and thus tends to depress innovation incentives. Merger-specific synergies, such as the internalization of involuntary spillovers or an increase in the productivity of R&D, may offset the adverse effect of a merger on innovation. We describe the possible effects of a merger on innovation by developing a taxonomy of cases, with reference to recent U.S. and E.U. examples. A dominant firm may engage in exclusionary conduct to eliminate the threat from disruptive firms. This suppresses innovation by foreclosing disruptive rivals and by reducing the pressure to innovative on the incumbent. We apply this broad principle to possible exclusionary strategies by dominant firms.
Ownership Concentration and Strategic Supply Reduction (Ulrich Doraszelski, Katja Seim, Michael Sinkinson, & Peichun Wang) April 2019.
We explore the implications of ownership concentration for the recently-concluded incentive auction that re-purposed spectrum from broadcast TV to mobile broadband usage in the U.S. We document significant multi-license ownership of TV stations. We show that in the reverse auction, in which TV stations bid to relinquish their licenses, multi-license owners have anincentive to withhold some TV stations to drive up prices for their remaining TV stations. Using a large-scale valuation exercise, we find that this strategic supply reduction conservatively increases payouts to TV stations by between 7.0% and 20.7%.
Startup Acquisitions, Error Costs, and Antitrust Policy (Erik Hovenkamp & Kevin Bryan) University of Chicago Law Review, April 2019.
Startup acquisitions by dominant incumbents, especially in high-tech, have recently attracted significant attention. Many researchers and practitioners worry about harms to competition or innovation. However, there has been very little antitrust enforcement in this area. This is emblematic of a prominent feature of modern antitrust law: a strong preference for erring on the side of non-enforcement. A leading rationale for this preference is the claim that market power self-corrects by attracting new entrants who discipline incumbents. As a result, plaintiffs generally face very demanding evidentiary requirements, which are particularly hard to satisfy in the case of startup acquisitions. A typical startup is both new and small, providing little data for estimating competitive effects. Despite this uncertainty, it is unlikely that society is best served by a policy of near-universal inaction. Recent work in economics, both empirical and theoretical, identifies various harms to competition and innovation as a result of startup acquisitions in concentrated markets. Further, the traditional error cost argument is particularly in-apposite in this context, as startup acquisitions may be undertaken precisely because they forestall competitive entry. We therefore argue for expanded antitrust intervention (i.e. more than zero) in startup acquisitions by dominant incumbents. In practice, the acquirer’s market power and the transaction value may be useful signals of the risk of harm.
Accommodating Competition: Harmonizing National Economic Commitments (Jonathan Baker) William & Mary Law Review, March 2019.
This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.
The Economics of Social Data (Dirk Bergemann & Alessandro Bonatti) March 2019.
Large internet platforms collect data from individual users in almost every interaction on theinternet. Whenever an individual browses a news website, searches for a medical term or for a travelrecommendation, or simply checks the weather forecast on an app, that individual generates data.A central feature of the data collected from the individuals is its social aspect. Namely, the datacaptured from an individual user is not only informative about this speciÖc individual, but also aboutusers in some metric similar to the individual. Thus, theindividual datais reallysocial data. Thesocial nature of the data generates aninformational externalitythat we investigate in this note.
The Worst Opinion in Living Memory: AT&T/Time Warner and America’s Broken Merger Law (Chris Sagers) forthcoming, March 2019.
The "worst opinion" of the title is not the appellate affirmance in United States v. AT&T, which put the final end to the government's challenge to the merger of AT&T and Time Warner. It was the trial court's fundamental ruling at the close of the bench trial, rejecting the government's claims. But the point is definitely not to criticize the bombastic, maverick judge who wrote it. His role really is incidental. It is that an opinion this bad, and affirmance of it, proves how deeply broken our merger law is. It was among the more remarkable demonstrations of anti-govenrment bias in living memory, and its 172 pages of fact-finding and reasoning were relentlessly flawed, illogical, and wrong. But it was more than good enough as far as our law is concerned. Nearly the entirety of it boils down to the personal impulses of one judge, who operates under a radically lopsided burden of proof and an appellate standard of near unreviewability.
Platforms, American Express, and the Problem of Complexity in Antitrust (Chris Sagers) Nebraska Law Review, March 2019.
Something old and important is lost sight of in a case like Ohio v. American Express, the Supreme Court's recent adoption of "platform" or "two-sided market" theory in American antitrust, and in theoretical efforts like the one on which it is based. A rarely discussed idea built in to American antitrust is that, as far as the law is concerned, markets are all pretty much the same. I explain why that seemingly prosaic fundamentalism in fact serves key instrumental goals, and why neglect of them is largely responsible for the failure of modern antitrust. I show the serious consequences of that mistake by asking whether anything was preserved by the "anti-steering" rules protected in the Amex case that justify making them so hard to challenge. I further ask what the broader consequences may be of letting the cat of out-of-network effects out of the bag of static, partial equilibria.
Antitrust Limits on Startup Acquisitions (Erik Hovenkamp & Kevin Bryan) Review of Industrial Organization, March 2019.
Should there be limits on startup acquisitions by dominant firms? Efficiency requires that startups sell their technology to the right incumbents, that they develop the right technology, and that they invest the right amount in R&D. In a model of differentiated oligopoly, we show distortions along all three margins if there are no limits on startup acquisition. Leading incumbents make acquisitions partially to keep lagging incumbents from catching up technologically. When startups can choose what technology they invent, they are biased toward inventions which improve the leader's technology rather than those which help the laggard incumbent catch up. Further, upon obtaining a pure monopoly, the leading incumbent's marginal willingness to pay for new technologies falls abruptly, diminishing private returns on future innovations. We consider antitrust measures that could help to mitigate these problems.
The Antitrust Case Against Facebook: A Monopolist’s Journey Towards Pervasive Surveillance in Spite of Consumers’ Preference for Privacy, (Dina Srinivasan) Berkeley Business Law Journal (February 2019).
The Facebook, Inc. (“Facebook”) social network, this era’s new communications service, plays an important role in the lives of 2+ billion people across the world. Though the market was highly competitive in the beginning, it has since consolidated in Facebook’s favor. Today, using Facebook means to accept a product linked to broad-scale commercial surveillance — a paradox in a democracy. This Paper argues that Facebook’s ability to extract this qualitative exchange from consumers is merely this titan’s form of monopoly rents. The history of early competition, Facebook’s market entry, and Facebook’s subsequent rise tells the story of Facebook’s monopoly power. However, the history which elucidates this firm’s dominance also presents a story of anticompetitive conduct. Facebook’s pattern of false statements and misleading conduct induced consumers to trust and choose Facebook, to the detriment of market competitors and consumers' own welfare.
The Common Ownership Hypothesis: Theory and Evidence (Matthew Backus, Christopher Conlon, & Michael Sinkinson) Brookings, February 2019.
Under one model of corporate governance that embraces a strict interpretation of the common ownership hypothesis, the authors calculate that in 1980 an average S&P 500 firm would have valued a dollar of profits to another randomly chosen S&P 500 component firm at 20 cents. By the end of 2017, this more than tripled to approximately 70 cents. If common ownership incentives translate to firm behavior, this rise would give firms an incentive to raise prices even in the absence of collusion (which would be illegal).
Controlling Polarization in Personalization: An Algorithmic Framework (L. Elisa Celis, Sayash Kapoor, Farnood Salehi & Nisheeth Vishnoi), January 2019.
Personalization is pervasive in the online space as it leads to higher efficiency for the user and higher revenue for the platform by individualizing the most relevant content for each user. However, recent studies suggest that such personalization can learn and propagate systemic biases and polarize opinions; this has led to calls for regulatory mechanisms and algorithms that are constrained to combat bias and the resulting echo-chamber effect. We propose a versatile framework that allows for the possibility to reduce polarization in personalized systems by allowing the user to constrain the distribution from which content is selected. We then present a scalable algorithm with provable guarantees that satisfies the given constraints on the types of the content that can be displayed to a user, but -- subject to these constraints -- will continue to learn and personalize the content in order to maximize utility. We illustrate this framework on a curated dataset of online news articles that are conservative or liberal, show that it can control polarization, and examine the trade-off between decreasing polarization and the resulting loss to revenue. We further exhibit the flexibility and scalability of our approach by framing the problem in terms of the more general diverse content selection problem and test it empirically on both a News dataset and the MovieLens dataset.
Labor Monopsony and the Limits of the Law (Suresh Naidu & Eric Posner) January 2019.
Recent literature has suggested that antitrust regulation is an appropriate response to labor market monopsony. This article qualifies the primacy of antitrust by arguing that a significant degree of labor market power is “frictional,” that is, without artificial barriers to entry or excessive concentration of employment. If monopsony is pervasive under conditions of laissez-faire, antitrust is likely to play only a partial role in remedying it, and other legal and policy instruments to intervene in the labor market will be required.
A Proposal to Enhance Antitrust Protection Against Labor Market Monopsony (Ioana Elena Marinescu & Eric A. Posner) December 2018.
Recent empirical studies have revealed that labor market monopsony is far more common than previously thought, and that there is a strong correlation between wage suppression and labor market concentration. Yet few antitrust cases have been brought by workers against employers who exercise significant market power against them, and hardly any such cases have been successful. In contrast, antitrust cases against monopolists on the product market side are common. We argue that section 2 of the Sherman Act, which prohibits certain forms of monopolization (and has been interpreted to apply to labor market monopsonization as well) is insufficient for addressing monopsonization of labor markets because of structural differences between labor markets and product markets. We propose a new statute that would strengthen the law by giving employees a more robust claim against labor monopsonists who abuse their market power.
The Limits of Antitrust in Privacy Protection (Eugene Kimmelman, Harold Feld & Agustin Rossi) International Data Privacy Law, November 2018.
Key Points: (1) Antitrust has been put forward as a tool to defend consumers’ privacy. (2) Antitrust should encourage non-price competition, and can be the right tool to fight anti-competitive hoarding of personal data. (3) However, antitrust in general is not the right tool to address, nor the right conceptual framework to analyse, privacy harms. (4) Instead, a comprehensive approach to consumer protection is needed.
Coty, Amazon, and the Future of Vertical Restraints: Evolving Distribution Norms on Both Atlantic Shores (Chris Sagers) forthcoming, September 2018.
Coty Germany, GmbH v. Parfümerie Akzente, GmbH, a late 2017 decision of the European Court of Justice (ECJ), set off something of a tizzy along North Atlantic shores concerning the future of vertical restraints and distribution relationships in online commerce sectors. Generally, Coty seemed to reflect the sense that online distribution posed threats to them that were new or special. Firms and their lawyers saw need to protect their brands from the rapacity of big, no-frills, price-cutting online retailers, including above all Amazon. Sure enough, the same anxieties find expression in other broad policy initiatives relating to online commerce, including the “Better Deal” program of Democrats in the U.S. Congress and the European Union’s ambitious new “Digital Single Market” program. But all this anxiety might look rather different if—contrary to our usual habit—consider it in historical context. In fact recent developments may not really be so new, at least not any ways relevant to competition policy. In fact, technological innovation in distribution, and the tension that has always characterized relations of suppliers and distributors, is an old story, and has been associated with some of the bitterest politics in antitrust history. And in times past, when similar anxieties of aggressive or innovative distributors have been met with private trade restraints or lobbying for protectionist government intervention, it has often enough turned out that the motives were not so pure and the changes that were feared were not ultimately so bad.
Antitrust, Political Economy, and the Nomination of Brett Kavanaugh (Chris Sagers) forthcoming, September 2018
The essay considers the record of Supreme Court nominee Brett Kavanaugh within antitrust law and related policies. Deep substantive engagement with a nominee’s record by subject-area experts—as an adjunct to review by generalist Senators and interest groups—seems desirable and missing from much of our debate, as to Supreme Court nominees of any background or persuasion. In this particular case it is uncommonly necessary, because the nominee is himself uncommon. Review of the antitrust cases, along with cases on cognate competition issues and the closely related context of net neutrality, turns out to be both stark and quite telling. It discloses a more generalized political economy and a more generalized approach to judging. In particular, Judge Kavanaugh has demonstrated a strongly ideological agenda and a willingness to pursue it with substantial disregard for precedent and statute.
Common Ownership, Competition, and Top Management Incentives (Miguel Anton, Florian Ederer, Mireia Gine, & Martin C. Schmalz) Ross School of Business Paper No. 1328, September 2018.
When one firm's strategy affects other firms' value, optimal executive incentives depend on whether shareholders have interests in only one or in multiple firms. Performance-sensitive contracts induce managerial effort to reduce costs, and lower costs induce higher output. Hence, greater managerial effort can lead to lower product prices and industry profits. Therefore, steep managerial incentives can be optimal for a single firm and at the same time violate the interests of common owners of several firms in the same industry. Empirically, managerial wealth is more sensitive to performance when a firm's largest shareholders do not own large stakes in competitors.
Unlocking Antitrust Enforcement Collection, Yale Law Journal, May 2018.
There is no antitrust law without antitrust law enforcement. Unlocking Antitrust Enforcement contends that existing tools to advance antitrust enforcement are well-suited to confront today’s U.S. antitrust challenges. Primarily focused on efforts by the federal antitrust agencies, these Features lay the foundation for an overarching enforcement agenda.
The Myth of Free (John M. Newman) George Washington Law Review, March 2018.
Myths matter. This Article is the first to confront a powerful myth thatpervades modern economic, technological, and legal discourse: the Myth ofFree. The prevailing view is that consumers capture massive welfare surplusfrom a flood of innovative new products that are offered free of charge. Econ-omists, legal scholars, and industry stakeholders created an origin story—amyth—to explain how these products became “Free.”But that orthodox origin story is fatally flawed. This Article formalizes,then debunks, the Myth of Free and its underlying assumptions. The Myth isriddled with internal inconsistencies, logical errors, and factual inaccuracies.In their place, this Article provides a revisionist history of Free, one that offersgreater descriptive and predictive accuracy. Along the way, it solves severalpuzzles: Why has Free become the default online business model? Why doesthe age of abundance—so often predicted—always fail to materialize? Andwhy is society nonetheless drawn to such predictions?The task is urgent: the Myth of Free is not benign. It has misled courtsinto granting protected legal status to Free-product suppliers in cases rangingfrom contract disputes to antitrust and privacy litigation. It has also motivatedpolicy proposals that call for eliminating market interventions—or competitivemarkets themselves—without adequate justification in either case. Moreover,policies designed for a post-scarcity world necessarily overlook the persistentproblems attendant to scarcity, thereby creating substantial allocative ineffi-ciencies. This Article seeks to dispel the Myth of Free before it can wreakfurther harm to societal welfare and the rule of law.
Competition in Digital Technology Markets: Examining Self-Preferencing by Digital Platforms (Gene Kimmelman) U. S. Senate, Subcommittee on Antitrust, Competition Policy and Consumer Rights Testimony, March 2020.
Digital platforms are today’s marketplace, library, and public square. Yet key elements of these markets are dominated by one or two firms. As experts across the globe examine digital platform markets, they have identified problems of persistent market power and very little entry or expansion.
Key Elements and Functions of a New Digital Regulatory Agency (Gene Kimmelman) Harvard Kennedy School, Shorenstein Center on Media, Politics and Public Policy, February 2020.
A report issued by the United Kingdom’s competition authority (CMA) provides interim findings that both Google and Facebook have a virtual lock on key elements of and inputs to the digital advertising market. As a result the U.K. proposes an extensive set of policy interventions through an anticipated new regulatory body that many expect the U.K. to establish in the near future.
Syncing Antitrust and Regulatory Policies to Boost Competition in the Digital Market (Gene Kimmelman) Centre for International Governance Innovation, October 2019.
handful of tech giants have enormous clout in key digital markets, and competition authorities around the globe are concerned about their domination of the market. In many countries, privacy and regulatory policy makers are similarly working to rein in tech power. As it seems clear that neither antitrust nor privacy rules alone are adequate to protect consumers and promote robust competition, countries must find ways to make all their policy interventions support complementary goals. The global nature of digital markets now makes such policy collaboration equally important across national boundaries.
Memo: Restoring Independence and Fairness to Agriculture Under a Green New Deal (Austin Frerick & Charlie Mitchell) Data For Progress, October 2019.
Only by addressing anti-competitive practices and restoring fair markets in food and agriculture can we facilitate diverse food production and commerce from independent, local- and regionally-controlled farms and businesses. This is vital for securing a nourishing food supply able to withstand climate catastrophe.
The U.S. Forgot What Antitrust Is For, (John M. Newman) The Atlantic, September 2019.
ntitrust law once distinguished harmful restraints of trade from agreements that benefit society. Today, it turns a blind eye to harm while seeming determined to leave no good deed unpunished. We need a return to our roots. Antitrust laws were intended to prevent monopolies from enriching themselves at the public’s expense. When those laws are instead used to prevent cleaner air and defend rules that force the poor to fund perks for the wealthy, a change is needed. Thankfully, the laws themselves don’t need to be amended. We simply need judges who will apply antitrust law as it was intended to be applied. And we need regulators who will challenge truly anticompetitive conduct, yet use common-sense prosecutorial discretion to allow beneficial agreements.
The News About Antitrust’s Impending Resurgence Has Been Greatly Exaggerated (Chris Sagers) Pro-Market, July 2019.
The federal antitrust agencies don’t appear to be serious about their recent Big Tech push. And given that the Supreme Court and federal judiciary are firmly in conservative hands, it doesn’t matter—antitrust enforcement won’t come back so soon.
Only Regulation Can Jumpstart Competition in Big Tech (Gene Kimmelman & Charlotte Slaiman) Fortune, July 2019.
No matter what antitrust investigations into big tech find, the best way to increase competition among digital platforms so that the next Google or next Facebook can survive is by creating a regulatory agency to stand watch. Antitrust law can stop anticompetitive behavior, but it cannot overcome or eliminate the natural economic characteristics of these markets that make competition so difficult. This means we need new laws that force the tech giants to play well with others, and we need an agency to enforce them.
The Double Standard of Antitrust Law (Sanjukta Paul) The American Prospect, June 2019.
How today’s antitrust law strengthens top-down corporate control and weakens democratic cooperation.
Elizabeth Warren Has a Theory About Corporate Power (Stacy Mitchell) The Atlantic, May 2019.
The left forgot what Roosevelt knew: Small businesses and corporate behemoths have different interests.
Why Privacy is an Antitrust Issue, (Dina Srinivasan) The New York Times, May 2019.
The demise of Facebook’s competition has put our data at risk... Our government should undertake the important task of restoring to the American people something they bargained for in the first place — their privacy.
Confronting Rising Market Power (Jonathan B. Baker & Fiona Scott Morton), Economics for Inclusive Prosperity Policy Brief, May 2019.
Rising market power in the U.S. economy is not just a microeconomic problem, as the textbook analysis shows, creating allocative efficiency losses and transferring wealth away from victimized participants in the affected markets. Rising market power also undermines inclusive prosperity by contributing to inequality and slowed economic growth. Modern economic research points to multiple ways to attack market power and enhance competition, including ways of strengthening antitrust enforcement, improving antitrust rules and institutions, and deploying regulation to enhance competition.
"What Democratic Contenders Are Missing in the Race to Revive Antitrust," (John M. Newman) The Atlantic, April 2019.
There is an old saying in the legal community: “Hard cases make bad law.” That may be true, but it is just as often the case that bad judges make bad law. Real antitrust reform will require more than regulatory and legislative tweaks; it will require the right judges.
To Revive Rural America, We Must Fix Our Broken Food System (Austin Frerick) The American Conservative, February 2019.
America’s agricultural system has become extractive, and more and more of the profits are flowing to a few. This article calls for restoring the balance of power in America's food system in favor of farmers, workers, and small businesses via changes to antitrust law and enforcement.
How the Federal Government Rigs the Game Against Small Businesses (Stacy Mitchell) The Washington Monthly, February 2019.
An FTC-approved merger will help Staples and Amazon crush the independent office-supply industry.
Paging Don Qixote: The Last Hope for American Merger Law (Chris Sagers) Pro-Market, January 2019.
Of the eight or nine hundred antitrust claims each year, few are private merger claims, and almost all of them fail. That is why the case of Steves & Sons, a rare private merger challenge decided by a federal court in Virginia last year, holds larger significance for the future of US antitrust enforcement.
Revitalizing U.S. antitrust enforcement is not simply a contest between Brandeis and Bork—look first to Thurman Arnold (Jonathan B. Baker) Competitive Edge, January 2019.
Restoring competition requires stronger antitrust rules than those adopted four decades ago. The Chicago era rules have failed to deter anticompetitive conduct adequately, in part because they rely on what turned out to be erroneous assumptions about markets and institutions. But restoring competition does not mean returning to the rules established in Arnold’s time. The structural era rules were not created for an information technology economy, and their revival would excessively chill efficiencies. Instead, enforcers and courts should bring modern economic thinking to bear.
Market Power or Just Scale Economies? (Jonathan B. Baker) Pro-Market, December 2018.
While increased economies of scale may offer a partial explanation for higher margins and declining dynamism in the US economy, growing market power provides a better explanation, argues Jonathan Baker.
Antitrust Alone Won’t Save Us From the “Curse of Bigness” (Gene Kimmelman & Charlotte Slaiman) Medium, November 2018.
If we can galvanize support for stronger antitrust, then surely we can create the additional accountability tools and enforcement practices needed to thoroughly challenge the dangers of economic and political concentration of power. One tool is not enough — we need a full array of public oversight to begin undoing past mistakes and meeting new challenges posed by tech. Achieving more competitive economic markets that expand the marketplace of ideas and protect our democracy requires both antitrust law and regulation working hand in hand.
Could the Steward Health v. BCBS Trial Revitalize Monopolization Law?” (Chris Sagers) Pro-Market, June 2018.
It’s nearly unheard of for a monopolization case to go to trial, but the Steward Health v. Blue Cross & Blue Shield of Rhode Island case is doing just that—and may help revive America’s moribund monopolization law, opines Chris Sagers of Cleveland State University.
No Fair Hearing for the DoJ in the AT&T-Time Warner Decision (Chris Sagers) Pro-Market, June 2018.
Antitrust expert Chris Sagers of Cleveland State University enumerates the failings of Judge Richard Leon’s dismissal last week of the Department of Justice’s attempt to block the AT&T-Time Warner merger. “I sure hope they appeal,” Sagers notes.
Ohio v. American Express: Clarence Thomas Sets Sail on a Sea of Doubt, and, Mirabile Dictu, It’s Still a Bad Idea (Chris Sagers) Pro-Market, June 2018.
n the first of a roundtable of op-eds on the Supreme Court’s Amex decision of June 25, Chris Sagers harks back to William Howard Taft’s warning that entertaining defenses of patently anticompetitive behavior would be to “set sail on a sea of doubt.” The Amex decision, writes Sagers, shows Taft was right.
The AT&T–Time Warner Merger Is Already Damaging (Chris Sagers) Slate, June 2018.
The opinion in the historic ruling shows how meaningless American antitrust has become—and how the courts aren’t helping in the slightest.
Why Iowans should care about antitrust enforcement," (John M. Newman) The Des Moines Register, June 2018.
Iowans should no longer be content with mere lip service to antitrust enforcement. It’s time to demand more from our elected officials. The future of our communities is at stake.
Amazon Doesn’t Just Want to Dominate the Market—It Wants to Become the Market(Stacy Mitchell) The Nation, February 2018.
The company is a radically new kind of monopoly with ambitions that dwarf those of earlier empires.
6 Ways to Rein In Today’s Toxic Monopolies(Stacy Mitchell) The Nation, February 2018.
Monopolies are strangling competition and cutting off opportunity. Here’s how to stop them.
The Rise and Fall of the Word 'Monopoly' in American Life (Stacy Mitchell) The Atlantic, June 2017.
For several decades, the term was a fixture of newspaper headlines and campaign speeches. Then something changed.
Foundational economics needed for enforcement in digital businesses
TAP@Yale will collaborate with the Tobin Center for Economic Policy to explore questions related to the economic effects of antitrust policy.