Transcription

1 Chapter 1

2

3 Lets Abolish the Antitrust Laws Does Antitrust Policy Improve Consumer Welfare? Assessing the Evidence Who Needs Antitrust, see Economists and Antitrust: The Circular Road See also The Case for Antitrust Enforcement, The Effect of Antitrust Policy on Consumer Welfare: What Crandall and Winston Overlook The Attack on Antitrust Policy and Consumer Welfare: A Response to Crandall and Winston

4 tout court economic abuse control Ordoliberal School

5 2.1. Run-up to the Sherman Act Popular literature NORTH AMERICAN REVIEW REVIEW OF REVIEWS ATLANTIC MONTHLY See Trust Literature: A Survey and Criticism The Limits of Competition see John Bates Clark: Earlier and Later Phases of His Work

6 may come had come keep him out drive him out see John Bates and John Maurice Clark on Monopoly and Competition supra supra The Persistence of Competition see The Genesis of the Trusts The Economic and Social Aspect of Trusts see, George Gunton: Pioneer Spokesman for a Labor-Big Business Entente supra

7 Senate debate see see supra Congress and the Sherman Antitrust Law: Legislative Intent and the Policy of the Sherman Act Introduction Id Id

8 Overview Id Id id id id Id

9 2.2. From the Sherman Act to the Clayton and FTC Acts Enforcement: A slow start Sugar Trust cul-de-sac The Origin of the Sherman Act Id Department of Justice Antitrust Enforcement : An Empirical Study see The Knight Sugar Decision of 1895 and the Modernization of American Corporate Law,

10 Sugar Trust interstate Sugar Trust see E.C. Knight The Trust Problem The Trust: An Institution Pronounced by the United States Supreme Court, in 1895, Beyond Congressional Control in The Legal Status of Combinations of Labor in

11 The Theory of Economic Progress Trusts and the Law in The Question of Trusts: A Symposium Trusts THE NEW COMPETITION United States v. E.C. Knight supra

12 laissez faire laissez faire laissez faire Quarterly Journal of Economics supra Control of Corporations, Persons and Firms Engaged in Interstate Commerce supra Id.

13 Enforcement: Back on track, but which track? Sugar Trust The principle of competition. Northern Securities Monopoly or Competition as the Basis of a Government Trust Policy See Government and Business in Germany: Public Policy Toward Cartels see See See also Historical Developments of the Law of Business Competition Price-Fixing Agreements Under the Sherman Anti-Trust Law Part I Part II supra see The Northern Securities Case The Merger Case and Restraint of Trade The Merger Case The Anti-trust Act and the Merger Case

14 competition Congress has recognized the rule of free Northern Pacific Railway: Holmes dissent. Northern Securities A History of the Northern Securities Case, The Legal Aspect of Monopoly supra The Effects of Horizontal Mergers and Competition: The Case of the Northern Securities Company Northern Securities See supra direct competition supra

15 The rule of reason. see Monopolization by Raising Rivals Costs: The Standard Oil Case Id Id See

16 Backlash New legislation. supra see

17 2.3. Between the wars Chicago Board of Trade per se Trenton Potteries Economists and Antitrust: The Circular Road Northern Securities See See Sunlight and Sunset at the Federal Trade Commission reprinted in

18 U.S. Steel Post-World War I Economists Committee on Anti-Trust Law Policy, The Economists and the Problem of Monopoly supra see also Judicial Precedent and the New Economics in The Period in the United States: Its Significance for Business- Cycle Theory Business, Antitrust Policy and the Industrial Board of the Department of Commerce, 1919

19 consumers The World-Wide Trend toward Cooperation Id The Sherman Act is Outworn, it Should be Amended The Sherman Act To-morrow Business Monopolies: Three European Systems in their bearing on American Law see also see Cartel Control: A Record of Failure supra Competition and Combination The Sherman Anti-trust Law and Readjustment Todays Trust Buster

20 public as a whole Depression and NIRA American Economic Review supra see similarly supra See The Anti-Trust Laws of the United States Cartels and the Business Crisis Economists Committee on Anti-Trust Law Policy, See also The Truth about Competition See The Transformation of the Federal Trade Commission,

21 Standard Oil Roundtable on Cost Functions and their Relation to Imperfect Competition The Requisites of Free Competition, See also reprinted in see In Defense of Henry Simons Standing as a Classical Liberalist supra Id.

22 Robinson-Patman Id Brooke Group v. Brown & Williamson Tobacco Corp. Volvo v. Reeder-Simco

23 2.4. Post-World War II through Celler-Kefauver University of Chicago Law Review The Outlook for Effective Competition Id. Id. The Antitrust Laws and Monopoly Mergers and Preventative Antitrust Policy

24 The Effect of Mergers on Industrial Concentration, see See

25 2.5. Warren Courts: antitrust, structuralism, and the Chicago backlash The Warren Court Brown Shoe Id Id Id Id

26 This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Brown Shoe Vons Grocery Thus, where concentration is gaining momentum in a market, we must be alert to carry out Congress intent to protect competition against ever-increasing concentration through mergers. supra supra Merger Policy Under the New Section 7: A Six-Year Appraisal Section 7 of the Clayton Act and the Merging of Law and Economics supra id incipiency

27 Dissolution proposals The Chicago School of antitrust analysis id The Case Against Big Business Id supra Report The Industrial Reorganization Act: An Antitrust Proposal to Restructure the American Economy The Chicago School of Antitrust Analysis See Industrial Organization and Reorganization Chicago Economics: Permanence and Change The Fire of Truth: A Remembrance of Law and Economics at Chicago, Chicago School of Law and Economics Remembrance of Things Past: Antitrust, Ideology, and the Development of Industrial Economics in

28 Merger Guidelines Chicago antitrust economics. supra Antitrust and Economic Theory: An Uneasy Friendship see Aaron Director Aaron Director Remembered Aaron Directors Influence on Antitrust Policy Law and the Future: Trade Regulation Review: United States v. United Shoe Machinery Corporation: An Economic Analysis of an Anti-trust Case The Rule of Reason and the per se Concept: Price Fixing and Market Division

29 Consumer welfare. The Antitrust Paradox But the purpose of a wink is to indicate the opposite of what one is saying in order to deceive a third party who hears only the words. supra Antitrust and Economic Theory, supra supra The Goals of Antitrust Policy See The Economics of Welfare Standards in Antitrust The Antitrust Paradox supra Monopolistic Competition, Second Best, and The Antitrust Paradox: A Review Article,

30 Reiter v. Sonotone Book Review ought to be Book Review, National Association of Attorneys General Horizontal Merger Guidelines they spend their income when they consume the goods on which See also Times v. et al supra Id Consumer Sovereignty in Modern

31 Jefferson Parish Hospital tied product who needs to purchase the Merger guidelines. Merger Guidelines Guidelines Guidelines Guidelines Guidelines see The Merger Guidelines and the Integration of Efficiencies into Antitrust Review of Horizontal Mergers See e.g.. Economics and Antitrust Enforcement: Transition Years

32 Guidelines Guidelines Guidelines Guidelines Merger Guidelines Guidelines Guidelines Guidelines Merger Guidelines Horizontal Merger Guidelines Guidelines Compare with See Merger Policy in the 1970s and 1980s, in supra See Id Id E.g.

33 Guidelines Merger Vertical restraints. United States v. Arnold, Schwinn & Co. Guidelines see See Schwinn See The Revolution in Antitrust Analysis of Vertical Relationships: How Did We Get from There to Here? in Id

34 GTE Sylvania Schwinn Topco the freedom to compete cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy... GTE Sylvania Interbrand competition is the primary concern of antitrust law GTE Sylvania Id. Topco Reeder-Simco Vertical Integration and Market Foreclosure See supra

35 Predation. Utah Pie Matsushita Cargill Jefferson Parish Hospital Utah Pie and the consequences of Robinson-Patman Predatory Pricing and Related Practices Under Section 2 of the Sherman Act Predatory Pricing and the Sherman Act: Comment Predatory Pricing: A Strategic and Welfare Analysis Quasi-Permanence of Price Reductions: A Policy for Prevention of Predatory Pricing A Framework for Analyzing Predatory Pricing Policy An Economic Definition of Predation: Pricing and Product Innovation Predatory Strategies and Counterstrategies supra Predatory Price Cutting: The Standard Oil (N.J.) Case Barriers to Entry.

36 Matsushita Brooke Group 2.6. Two roads diverged formal. Predatory Pricing: Strategic Theory and Legal Policy See supra which had once been regarded as a sufficient tool of economic analysis Can the Antitrust Laws Preserve Competition? Comment Strategic and Welfare Implications of Bundling Bundling as an Entry Barrier Social Status, Entry and Predation: The Case of British Shipping Cartels ,

37 3.1. Member state backgrounds Reflections upon Professor Williamsons Comments See Antitrust Policy after Chicago Compare Recent Developments in Economics that Challenge Chicago School Views with Can Post-Chicago Economics Survive Daubert and Modern Industrial Organization Policies of Germany, England, Canada and the United States towards Combinations Trust and Corporation Problems Methods of Regulating Unfair Competition in Germany, England, and the United States Business Monopolies: Three European Systems in their Bearing on American Law The Origins of European Competition Law in Fin-de Siècle Austria,

38 UK Mogul Steamship The Law as to Combinations: Memorandum The Law as to Combinations: Memorandum Industry and Industrial Organisation in the Interwar Years in

39 France dirigiste manqué ancien régime Germany British Monopoly Policy The Calcium Carbide Case and the Decriminalization of Industrial Ententes in France, , in,

40 crisis cartels Brickmakers contra bonos mores contra bonos mores On the contrary such course of action would seem to be incumbent upon prudent business men Saxon Woodpulp endangered supra

41 abuse control Ordoliberalism. A Positive Program for Laissez Faire Monopoly and Competition in Western Germany in supra Competition Policy from an Ordo Point of View, in supra supra supra German Neoliberalism The Political Thought of Neoliberalism Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the New Europe The Proper Scope of Government Viewed from an Ordoliberal Perspective: The example of Competition Policy Economic Constitutionalism and the Challenge of Globalization: The enemy is gone? Love live the Enemy The Proper Scope of Government Viewed from an Ordoliberal Perspective: The example of Competition Policy See also On the Growth of the Antitrust Idea German Legal Culture and the Globalization of Competition Law: A Historical Perspective on the Expansion of Private Antitrust Enforement Issues in supra

42 Abuse control supra Id. supra Some Aspects of European Monopoly Legislation European Antitrust Policy Antitrust in Europe: National Policies After 1945 Resolution on the control of international trusts and cartels, Alternative Approaches to the Control of Competition 59 in

43 as if General Information and History of the Interparliamentary Union and the United States Group Die Wirtschaftspolitik des Als Ob supra Leonhard Miksch ( ) Id

44 3.2. The European Coal and Steel Community Schuman Plan supra See Coal and Steel: First Steps in European Market Integration

45 See supra See upra See also Public Policy in a Free Enterprise Economy in See Resolving the Paradox of the Monnet Plan: National and International Planning in French Reconstruction supra Specialization in the European Coal and Steel Community

46 3.3. Postwar German competition policy Welcoming Remarks See also Réflexions sur Jean Monnet in A Personal Note in translated in supra The Schuman Plan Negotiations The Economic Clauses The Role of Jean Monnet in Setting Up the European Coal and Steel Community Ein Akt Konstrucktiver Staatskunst all in translated in supra See supra supra The Management of Markets: Business, Governments and Cartels in Post-War Europe in supra supra Mémoires supra

47 Gesetz gegen Wettbewerbsbeschränkungen 3.4. European Economic Community The Spaak report Report Spaak Report Spaak supra supra supra see also supra supra Europes First Constitution: The European Political Community, in Id

48 Spaak Report Spaak Report The EC Treaty: Competition, integration, freedom Spaak Report Id La notion dabus dans le système de larticle 86 du traité instituant la Communauté Économique Européenne in travaux préparatoires Searching for the Long-Lost Soul of Article 82

49 Spaak Report sine qua non Id Id The Role of Competition in the Common Market

50 United Brands Hoffman-La Roche United Brands Id.

51 are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market Id. General Motors Continental v. Commn Id

52 Guidelines on the Toward a Theory of Price Adjustment in economic Competition Policies of the US and the EEC: An Overview Monopolization and Dominance in the United States and the European Community: Efficiency, Opportunity, and Fairness Excessive Pricing under EC Competition Law; An Update in the Light of Dutch Developments in See also supra

53 Application of Article 81(3) Guidelines State aid Suiker Unie

54 Merger control Third Report on Competition Policy Excessive See State Aid to Business in

55 19th Report on Competition Policy 3.5. The more economic approach Northern Securities Sylvania GTE Vertical restraints Consten and Grundig Id See Institutions and Policy Change in the European Communities: The case of Merger Control

56 Topco Green Paper on Vertical Restraints Id see also supra See supra See e.g. System Failure: Vertical Restraints and EC Competition Law Modern Industrial Organization Versus Old-Fashioned European Competition Law

57 Follow-up to the Green Paper on Vertical Restraints Merger control supra Vertical Restraints Guidelines

58 unilateral effects Schneider/Legrand A New Era of Competition under the Guidance of the Court of First Instance in Ökonomische Analyse des Begriffs Significant Impediment to Effective Competition, in Multimarket Oligopoly: Strategic Substitutes and Complements

59 Article 82 as a way By Invitation DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses see An Economic Approach to Article 82

60 efficient State aid Postscript Preliminary Thoughts on Policy Review of Article 82 See also European State Aid Control: An Economic Framework in The Year 2005 at DG Competition: The Trend Towards a More Effects-Based Approach

61 Green Paper on Vertical Restraints supra Id. A New Road Map for Europe

62 G CS G = θ CS + θ 㰇埇 㰇埇 θ = θ = G Antitrust Paradox θ = θ = G Appendix: Recent Controversies in Efficiency, Utility, and Wealth Maximization C θ CS + θ 㰇埇 + θ C θ = θ = θ = C See The New Welfare Economics The

63 demonstration a matter of scientific θ θ Rehabilitation of Consumers Surplus Consumer Surplus vs. Welfare Standard in a Political Economy Model of Merger Control see also Interpersonal Comparisons of Utility: A Comment Economics and Political Economy Welfare Propositions of Economics and Interpersonal Comparisons of Utility

64 The Foundations of Welfare Economics Id supra Id. Paretos Compensation Principle

65 Three Basic Postulates for Applied Welfare Economics: An Interpretive Essay

66 Otter Tail

67