News

In Europe, many regulatory authorities are debating whether to loosen regulations on tech companies so that they can catch up with their counterparts in the United States and close Europe’s innovation gap. Based on her recent article, Anu Bradford shows that this choice is a false one. She argues that rather than stringent regulation, the gap in tech innovation between the U.S. and EU can be explained by differences in their scaling opportunities, capital markets, bankruptcy laws, immigration policy, and flexibility of their labor markets.

After several decades of obscurity, antitrust reemerged as a fashionable force in the second and third decades of the 21st century. This trend coincided with growing societal distrust of expertise. Barak Orbach explores assertions that corruption and greed drive support for lax antitrust enforcement policies, and that trustbusting zeal is a marker of intellectual integrity. He argues that intellectual integrity and sound public policy require the moderate, technocratic approaches that society heavily discounts.

Recent negative news on the production of electric vehicles in the United States call into question the government’s industrial policy boosting Detroit’s efforts to go green. Susan Helper writes that not only have there been significant benefits from President Joe Biden’s industrial policies, but promoting the production and adoption of electric vehicles remains essential to achieving national decarbonization targets and increasing resilience, innovation, and national security

Andrew Gavil examines the Biden Administration's antitrust policy, placing it in the broader historical context of evolving competition law. He questions the fit of Kuhn’s concept of paradigm shift for antitrust policy and argues instead that Biden's initiatives reflect the unique demands of the digital economy and the true nature of antitrust, which is ever evolving.

As financial markets take on societal challenges like climate change, new research from Robin Döttling, Doron Levit, Nadya Malenko and Magdalena Rola-Janicka explores how shareholder democracy interacts with the political process to impact public goods provisions. The authors investigate the potential of investor-driven governance to supplement the shortfalls of the regulatory system, highlighting both benefits and risks posed by wealth inequality and ESG backlash.

Randy Stutz writes that the Biden administration has recalibrated antirust policy by devoting more equal enforcement attention to competition in buyers’ markets and sellers’ markets, thereby promoting the welfare of both suppliers and consumers. The shift raises questions about whether courts should engage in “multi-market balancing”—the weighing of harms in one market against benefits in a different market—when the interests of suppliers and consumers diverge.

In a new paper, Jonathan Masur and Eric Posner argue that although cost-benefit analysis and originalism seem to belong to different legal worlds, they share a common political history of support from many of the same business interests. In recent years, both have gained wide acceptance across the political spectrum. But the ground may be shifting beneath them, and they now face uncertain futures.

Tim Brennan finds the new shift in antitrust thought and enforcement connected to the Neo-Brandeisian movement to be flawed for the most part. However, he writes that a reinvigorated focus on tacit collusion, which some have blamed on the rise of prices for groceries and apartment rents, may deserve consideration and further study.

Richard S. Markovits discusses the tests of illegality promulgated by United States antitrust law and their moral desirability. He also considers whether there have been any recent shifts in the paradigmatic approaches that are taken to these and other antitrust law/policy issues.

Steven C. Salop writes that the Biden administration oversaw a paradigm shift in antitrust, but it was the full adoption of the ideas of the Post-Chicago school, whose intellectual influence has countered Chicago since the 1980s, rather than the empowerment of the Anti-Monopoly or Neo-Brandeisian school of thought. This latter school of thought played an important role by motivating increased enforcement and corralling political support, even if it did not lead to cases that could not have been brought by Post-Chicagoans.