The following articles, the work of the faculty of the School of Law, the Attorney General, two members of the Washington Bar and a student, constitute the first academic comment on the laws of 1961. For obvious reasons, these articles are not represented to the reader as a complete survey of the legislative session. Rather, they are a compilation of comments on acts which the writers have found to be important, timely, or merely interesting. The Antitrust section considers the Consumer Protection Act of 1961 and its impact on Washington antitrust law.
We examine antitrust rules in a two county general equilibrium trade model, contrasting national and multilateral (cooperative) determination of competition policy, exploring the properties of the policy equilibrium. It is not imperfect competition, but variation in competitive stance between sectors that matters for trading partners. Beggar-thy-neighbor competition policies relate to countries' comparative advantages, and hurt the factor intensively used, or specific to, the imperfectly competitive sector. They also create a competitive advantage for export firms. FDI can be pro-competitive in this context, reducing the scope for beggar-thy-neighbor policies and reducing the gains from a multilateral competition agreement.
National identification ("ID") cards appear increasingly inevitable. National ID cards have the potential to be repressive and privacy destroying, but it is also possible to design a system that captures more benefits than costs. Because the United States currently lacks a single, reliable credential, private businesses have trouble authenticating their customers and matching data among distributed databases. This Article argues that the desire for reliable ID creates a window of opportunity for the federal government to strike a bargain: offer private businesses the use of a reliable credential in the form of a national ID card, on the condition that they abide by a privacy standard set and owned by the United States. But the government must act quickly-the Real ID Act of 2005, which sets up a national standard for the issuance of state driver's licenses, is poised to become effective in May 2008. This law does not provide for privacy protections, and once it goes into effect the opportunity to leverage such protections on a national ID card will be greatly reduced.
Our solution of the anti-monopoly problems must be in terms of our ideals-- the ideals of political and economic democracy. We want no economic or political dictatorship imposed upon us either by the government or by big business. We want no system of detailed regulation of prices by the government nor price fixing by private interests. We do not want bureaucracy or regimentation of any kind, but we will prefer governmental to private bureaucracy and regimentation, if we have to make such a choice. We cannot permit private corporations to be private governments. We must keep our economic system under the control of the people who live by and under it.
Negli ultimi anni le istituzioni e la regolamentazione hanno svolto un ruolo sempre più importante nell'analisi della crescita economica. Tuttavia, non è facile interpretare le istituzioni e gli effetti dei regolamenti sulla crescita attraverso indicatori che tendono a "misurare" le istituzioni. Lo scopo di questa ricerca è analizzare la relazione di lungo periodo tra la crescita economica e la regolamentazione e il ruolo della regolamentazione antitrust sulla crescita economica. La stima econometrica dei modelli di crescita con la concorrenza e gli indicatori di potere di mercato si base su un dataset appositamente costruito che copre 211 Paesi, su un arco temporale massimo di 50 anni (da 1960 a 2009). In particolare, cerchiamo di identificare un quadro analitico volto a integrare l'analisi istituzionale ed economica al fine di valutare il ruolo della regolamentazione e, più in generale, il ruolo delle istituzioni nella crescita economica. Dopo una revisione della letteratura teorica ed empirica sulla crescita e le istituzioni, vi presentiamo l'analisi dell'impatto normativo (RIA) in materia di concorrenza, e analizziamo le principali misure di regolamentazione, la governance e le misure antitrust. Per rispondere alla nostra domanda di ricerca si stimano modelli di crescita prendendo in considerazione tre diverse misure di regolamentazione: la Regulation Impact (RI), la Governance (GOV), e la libertà economica (LIB). Nel modello a effetti fissi, RI, gli effetti della legislazione antitrust sulla crescita economica sono significativi e positivi, e gli effetti di durata antitrust sono significativi, ma negativi. Nel pannel dinamico, GOV, gli effetti dell'indicatore di governance sulla crescita sono notevoli, ma negativo. Nel pannel dinamico, LIB, gli effetti della LIB sono significativi e negativi. ; During last years institutions and regulations have played an increasingly and important role in the growth economic analysis. However, it is not easy to interpret the institutions and regulations effects on growth using indicators which tend to "measure" institutions. The purpose of this research is analyse the long-run relationship between economic growth and regulation, and the role of antitrust regulation on economic growth. Our econometric estimation of growth models with competition and market power indicators based on an expressly conceived dataset including 211 countries, over a maximum period range of 50 years (from 1960 to 2009). In particular, we try to identify an analytical framework aiming to complement the institutional and economic analysis in order to assess the regulation role and more generally, the role of institutions in economic growth. After a theoretical and empirical literature review on growth and institutions, we present the Regulatory Impact Analysis (RIA) on competition, and we analyse the main regulation, governance and antitrust measures. To answer our research question we estimate several growth models considering three regulatory measures: Regulation Impact (RI), Governance (GOV), and Economic Freedom (LIB). In the RI fixed effect model, the effects of antitrust legislation on economic growth are significant and positive, and the effects of antitrust duration are significant but negative. In the GOV dynamic panel, the effects of governance index on growth are significant but negative. In the LIB dynamic panel the effects of LIB are significant and negative.
"Antitrust federalism, " or the rule that state regulation is not subject to federal antitrust law, does as much as-and perhaps more than-its constitutional cousin to insulate state regulation from wholesale invalidation by the federal government. For most of the last century, the Court quietly tinkered away with the contours of this federalism, struggling to draw a formal boundary between state action (immune from antitrust suits) and private cartels (not). But with the Court's last three antitrust cases, the tinkering has given way to reformation. What used to be a doctrine with deep roots in constitutional federalism is now a doctrine with close ties to the federal administrative state where courts sit in judgment of an agency's decision-making procedure.The new antitrust federalism conditions antitrust immunity not on the fact of state regulation but on the process of that regulation. Now, only regulation created by a politically accountable process is beyond the reach of federal antitrust suits, exposing vast areas of state regulation to new antitrust scrutiny. This Article argues that the new antitrust federalism is an improvement on the old, both because the old boundary model was unworkable and because the new regime addresses the "inherent capture " problems at the heart of modern state regulation. But this Article also warns that if the Court does not give accountability review real bite, it may have to abandon the new antitrust federalism and opt for a nuclear option that could portend the end of antitrust federalism altogether.
We live in a time when concerns about influence over the American political process by powerful private interests have reached an apogee, both on the left and the right. Among the laws originally intended to fight excessive private influence over republican institutions were the antitrust laws, whose sponsors were concerned not just with monopoly, but also its influence over legislatures and politicians. While no one would claim that the antitrust laws were meant to be comprehensive anti-corruption laws, there can be little question that they were passed with concerns about the political influence of powerful firms and industry cartels. Since the 1960s, however, antitrust law's scrutiny of corrupt and deceptive political practices has been sharply limited by the Noerr-Pennington doctrine, which provides immunity to antitrust liability for conduct that can be described as political or legal advocacy. The doctrine was created through apparent First Amendment avoidance, based on the premise that the Sherman Act could not have been intended to interfere with a right to petition government. The Noerr decision, dating from 1961, was strained when it was decided and has not aged well. As an interpretation of the antitrust laws, it ignored Congressional concern with political mischief undertaken by conspiracy or monopoly. Its legitimacy has always rested on avoidance of the First Amendment, and while Noerr itself may have legitimately reflected such avoidance, the subsequent growth of a Noerr immunity has blown past any First Amendment-driven defense of its existence. For that reason, others have suggested a reformulation of the doctrine. The better answer is that, lacking constitutional or statutory foundation, Noerr should be overruled. The First Amendment guarantees freedom of speech, assembly, and "to petition the government for a redress of grievances." It therefore protects efforts to influence political debate as well as legitimate petitioning in the legislative, judicial or administrative processes. The First Amendment does not, however create a right to bribe government officials, deceive agencies, file false statements, or abuse government process through repeated filings designed only to injure a competitor. Nonetheless, each of these activities has, in some courts at least, been granted immunity under the overgrown Noerr immunity. It is an extra-constitutional outlier ripe for reexamination. Overruling Noerr would not make political petitioning illegal. It would, instead, require defendants to rely on the First Amendment when seeking to defend what would otherwise be conduct that is illegal under the antitrust laws. Doctrinally, this is to force courts to address whether conduct in question is actually an antitrust violation, and if, so whether it is protected by the First Amendment or not, drawing on an established jurisprudence for some of the problems presented in the Noerr context.
The functions of the antitrust laws have never been well articulated. Some proponents of the law emphasize the economic benefits of competition, i.e., incentives to economic efficiency and growth. Others emphasize the political and social advantages of minimizing the concentration of economic power. A review of the history and present status of antitrust suggests that both these views play a part. The Sherman Act prohibitions of "restraint of trade" and "monopolizing" suggest concern that entry into an industry shall not be barred by arbitrary restraints and that decisions of various firms shall be arrived at independently. This is not the same as requiring "competition" in the economist's sense, whether perfect competition or monopolistic competition with free entry. The Robinson-Patman Act, Fair Trade Laws, Judge Learned Hand's decision in the Alcoa case and the Celler Anti-Merger Amendments to section 7 of the Clayton Act all indicate concern for the social and political effects of protecting the weak against the strong and perpetuating several firms in an industry, even at the expense of economic efficiency. No one can understand the role of antitrust policy in the United States without understanding the interplay of these two objectives.
The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. 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 remained an "open question," even an "absolute mystery." Examination of the relevant case law reveals multiple competing 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 failure approach 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 identifies the proper, three-step method for assessing procompetitive justifications. This three-step analytical framework increases transparency and rigor, minimizes errors, and maximizes welfare.
This paper identifies and then quantifies econometrically the impact of leniency programs on the perception of the effectiveness of antitrust policies using country level panel data for a 10-year span. Leniency programs have been introduced gradually in antitrust legislation across the globe to fight more effectively against cartels. We use the dynamics of the diffusion of such policy innovation across countries and over time to evaluate the impact of the program. We find that leniency programs have had a significant impact on the perception among the business community of the effectiveness of each country"s antitrust policy. Leniency programs have become weapons of mass dissuasion in the hands of antitrust enforcers against the more damaging forms of explicit collusion among rival firms in the market place.
There can be no doubt that the FANG companies – Facebook, Amazon, Netflix and Google, as well as Twitter – have transformed society since their emergence. Like all social transformations, the changes wrought by their services have had ripple effects that are both positive and negative. On the positive side, soaring consumer access to information, news, social networks, and entertainment has been stimulated by the ever-more ubiquitous and falling prices of broadband fixed and mobile bandwidth. E-government has transformed the delivery of public services. However, negative effects have likewise been stark. Certainly, there have been huge disruptions caused by e-commerce. Retail industries, industrial supply chains, banking and publishing are just a few obvious examples. State tax collectors are fighting the loss of sales tax collections. These problems tend to get highlighted by the losers from the process of "creative destruction." Because Facebook and Google are two-sided markets, their economic rents are "hidden" from the public . On the user side of the market, prices are zero – "free." The other side, advertising rate are "hidden." Facebook's and Google's revenues are derived from advertising which appear when you go to their sites. They can extract exorbitant prices for ads, since they are virtually the only source that can target ads directly to potential clients. Because these companies can identify you, the ads can be targeted to your specific wants and needs, even creating "wants and needs" based on your profile. So, what the "customer" – you – perceived as free is not. Indeed, you are the commodity being sold to the advertisers. While Facebook and Google Herfindahl-Hirschman indices (HHI) are high, indicating a concentrated market or highly concentrated market by several different definitions of their markets. For example, Google has 93 percent of the search market. Combined Google and Facebook currently control over half of digital advertising and one-third of total advertising. Nevertheless, no serious antitrust case or legislation has addressed this monopoly power. This paper examines the antitrust cases against Facebook and Google. In this paper, we attempt to go back to first principles to discern whether there is a more appropriate approach to examine the underlying economics of these industries in the hopes that tools can be applied that more directly address the problems.
The modern field of study into hindsight bias was launched by Baruch Fischhoff. Fischhoff provided his research subjects with a primer on the 1810s conflict between British forces and Nepalese Gurkhas near Northern India. He suggested four possible outcomes: British victory, Gurkha victory, a peace settlement, and a military stalemate with no peace settlement. The subjects were then divided into five groups. One group was given no information about the ultimate outcome of the conflict. Subjects in each of the remaining four groups were told that one of the four outcomes had, in fact, occurred. The subjects were then asked to assess the probability of each of the outcomes at the time that the conflict began. On average, the members of each group thought that the outcome that they had been told occurred was the most likely outcome a priori, even though they had been instructed to ignore what they "knew" about the ultimate outcome. Fischhoff referred to this phenomenon as "creeping determinism": the effect that being told "an outcome's occurrence consistently increases its perceived likelihood" before the fact. Subsequent studies confirmed his earlier results. Fischhoff's studies effectively created the field of research on hindsight bias.
Cover title. ; With: Developments in Federal antitrust legislation / Edwin H. Pewett. [Chicago? : American Bar Association?], 1963. ; Mode of access: Internet.
