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Hunting Unicorns, Aaron Edlin 2019 Selected Works

Hunting Unicorns, Aaron Edlin

Aaron Edlin

We study the effects of above-cost exclusionary pricing and the efficacy of three policy responses by running experiments involving a monopoly incumbent and a potential entrant. Our experiments show that under a laissez-faire regime, the threat of post-entry price cuts discourages entry, and allows incumbents to charge monopoly prices. Current U.S. policy (Brooke Group) does not help. In contrast, a policy suggested by Baumol (1979) lowers post-exit prices, while Edlin’s (2002) proposal reduces pre-entry prices and encourages entry. While both policies have less competitive outcomes after entry than laissez-faire does, they nevertheless both increase consumer welfare. For Edlin ...


Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker 2019 Selected Works

Accommodating Competition: Harmonizing National Constitutional And Antitrust Commitments, Jonathan B. Baker

Jonathan B. Baker

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 Rule Of Reason, Herbert Hovenkamp 2019 University of Florida Levin College of Law

The Rule Of Reason, Herbert Hovenkamp

Florida Law Review

Antitrust’s rule of reason was born out of a thirty-year Supreme Court debate concerning the legality of multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood. This Article provides a litigation field guide for antitrust claims under the rule of reason—or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up to the point of summary ...


The New Doj: Lessons Learned From The Ticketmaster Live Nation Decision, Alan J. Meese 2019 Selected Works

The New Doj: Lessons Learned From The Ticketmaster Live Nation Decision, Alan J. Meese

Alan J. Meese

No abstract provided.


Amazon And Platform Antitrust, Ben Bloodstein 2019 Fordham University School of Law

Amazon And Platform Antitrust, Ben Bloodstein

Fordham Law Review

With its decision in Ohio v. American Express, the U.S. Supreme Court for the first time embraced the recently developed, yet increasingly prolific, concept of the two-sided platform. Through advances in technology, platforms, which serve as intermediaries allowing two groups to transact, are increasingly ubiquitous, and many of the biggest tech companies operate in this fashion. Amazon Marketplace, for example, provides a platform for third-party vendors to sell directly to consumers through Amazon’s web and mobile interfaces. At the same time that platforms and their scholarship have evolved, a burgeoning antitrust movement has also developed which focuses on ...


Table Of Contents, Seattle University Law Review 2019 Seattle University School of Law

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Wickard Through An Antitrust Lens, Alan J. Meese 2019 William & Mary Law School

Wickard Through An Antitrust Lens, Alan J. Meese

Alan J. Meese

No abstract provided.


The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese 2019 William & Mary Law School

The Market Power Model Of Contract Formation: How Outmoded Economic Theory Still Distorts Antitrust Doctrine, Alan J. Meese

Alan J. Meese

Transaction cost economics ("TCE") has radically altered industrial organization's explanation for so-called "non-standard contracts, "including "exclusionary" agreements that exclude rivals from access to inputs or customers. According to TCE, such integration usually reduces transaction costs without producing anticompetitive harm. TCE has accordingly exercised growing influence over antitrust doctrine, with courts invoking TCE's teachings to justify revision of some doctrines once hostile to such contracts. Still, old habits die hard, even for courts of increasing economic sophistication. This Article critiques one such habit, namely, courts'continuing claim that firms use market or monopoly power to impose exclusionary contracts on ...


Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese 2019 William & Mary Law School

Tying Meets The New Institutional Economics: Farewell To The Chimera Of Forcing, Alan J. Meese

Alan J. Meese

No abstract provided.


Standard Oil As Lochner's Trojan Horse, Alan J. Meese 2019 William & Mary Law School

Standard Oil As Lochner's Trojan Horse, Alan J. Meese

Alan J. Meese

No abstract provided.


Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese 2019 William & Mary Law School

Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese

Alan J. Meese

The last few decades have witnessed a scientific revolution in the field of industrial organization in the form of transaction cost economics (TCE). This revolution has radically altered economists’ understanding and interpretation of both partial and complete economic integration. Not surprisingly, this sea change has substantially influenced antitrust law and policy, impelling the Supreme Court to reverse or greatly modify various precedents.

This essay supplements the received historiography of the TCE revolution. It contends that Robert Bork played a hitherto underappreciated role in that revolution. In particular, the essay contends that in 1966, before the official onset of the transaction ...


Section 2 Enforcement And The Great Recession: Why Less (Enforcement) Might Mean More (Gdp), Alan J. Meese 2019 William & Mary Law School

Section 2 Enforcement And The Great Recession: Why Less (Enforcement) Might Mean More (Gdp), Alan J. Meese

Alan J. Meese

The Great Recession has provoked calls for more vigorous regulation in all sectors, including antitrust enforcement. After President Obama took office, the Antitrust Division of the Department of Justice abandoned the Bush Administration’s standard of liability under section 2 of the Sherman Act, which forbids unlawful monopolization, as insufficiently interventionist. Based on the premise that similarly lax antitrust enforcement caused and deepened the Great Depression, the Obama Administration outlined a more intrusive and consumer-focused approach to section 2 enforcement as part of a larger national strategy to combat the “extreme” economic crisis the nation was then facing.

This Essay ...


Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese 2019 William & Mary Law School

Regulation Of Franchisor Opportunism And Production Of The Institutional Framework: Federal Monopoly Or Competition Between The States?, Alan J. Meese

Alan J. Meese

Most scholars would agree that a merger between General Motors and Ford should not be judged solely by Delaware corporate law, even if both firms are incorporated in Delaware. Leaving the standards governing such mergers to state law would assuredly produce a race to the bottom that would result in unduly permissive treatment of such transactions. Similarly, if the two firms agreed to divide markets, most would agree that some regulatory authority other than Michigan or Delaware should have the final word on the agreement. Thus, in order to forestall monopoly or its equivalent, the national government must itself exercise ...


Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese 2019 William & Mary Law School

Reframing The (False?) Choice Between Purchaser Welfare And Total Welfare, Alan J. Meese

Alan J. Meese

This Article critiques the role that the partial equilibrium trade-off paradigm plays in the debate over the definition of “consumer welfare” that courts should employ when developing and applying antitrust doctrine. The Article contends that common reliance on the paradigm distorts the debate between those who would equate “consumer welfare” with “total welfare” and those who equate consumer welfare with “purchaser welfare.” In particular, the model excludes, by fiat, the fact that new efficiencies free up resources that flow to other markets, increasing output and thus the welfare of purchasers in those markets. Moreover, the model also assumes that both ...


Reframing Antitrust In Light Of Scientific Revolution: Accounting For Transaction Costs In Rule Of Reason Analysis, Alan J. Meese 2019 William & Mary Law School

Reframing Antitrust In Light Of Scientific Revolution: Accounting For Transaction Costs In Rule Of Reason Analysis, Alan J. Meese

Alan J. Meese

This Article contends that modern rule of reason analysis, informed by workable competition’s partial equilibrium trade-off paradigm, is suitable for evaluating only a subset of agreements that may reduce transaction costs. The Article distinguishes between “technological” and “non-technological” transaction costs. Technological transaction costs entail the bargaining and information costs first emphasized by Ronald Coase, while non-technological transaction costs result from more fundamental departures from perfect competition, departures creating a risk of opportunism that accompanies relationship-specific investments. Modern law does accurately assess restraints that may reduce technological transaction costs—costs that are analogous to the sort of production costs recognized ...


Raising Rivals' Costs: Can The Agencies Do More Good Than Harm?, Alan J. Meese 2019 William & Mary Law School

Raising Rivals' Costs: Can The Agencies Do More Good Than Harm?, Alan J. Meese

Alan J. Meese

No abstract provided.


Property Rights And Intrabrand Restraints, Alan J. Meese 2019 William & Mary Law School

Property Rights And Intrabrand Restraints, Alan J. Meese

Alan J. Meese

Intrabrand restraints limit the discretion of one or more sellers-usually dealers-with respect to the disposition of a product sold under a single brand. While most scholars believe that such contracts can help assure optimal promotion of a manufacturer's products, there is disagreement about the exact manner in which such restraints accomplish this objective. Many scholars believe that such restraints themselves induce dealers to engage in promotional activities desired by the manufacturer. Others believe that such restraints merely serve as "performance bonds," which dealers will forfeit if they fail to follow the manufacturer's precise promotional instructions. Some scholars reject ...


Property, Aspen, And Refusals To Deal, Alan J. Meese 2019 William & Mary Law School

Property, Aspen, And Refusals To Deal, Alan J. Meese

Alan J. Meese

No abstract provided.


Premerger Review And Bankruptcy: The Meaning Of Section 363(B)(2), Robert B. Greenbaum, Alan J. Meese 2019 William & Mary Law School

Premerger Review And Bankruptcy: The Meaning Of Section 363(B)(2), Robert B. Greenbaum, Alan J. Meese

Alan J. Meese

No abstract provided.


Monopolization, Exclusion, And The Theory Of The Firm, Alan J. Meese 2019 William & Mary Law School

Monopolization, Exclusion, And The Theory Of The Firm, Alan J. Meese

Alan J. Meese

No abstract provided.


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