Antitrust and Competition

The Biden Competition Policy Paradigm Has Been Primarily Post-Chicago, Not Neo-Brandeisian

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.

After Neo-Brandeis

Daniel Francis reviews the evolutionary and revolutionary dimensions of the Biden administration’s antitrust work, and argues that these two projects have been in deep tension. He concludes that the administration’s evolutionary work within the welfarist paradigm has generated some important successes, but that the revolutionary effort to restore a pre-welfarist vision of antitrust has failed on its own terms — and, in failing, has left welfarism all the stronger.

The Ruling Against American Airlines-JetBlue Provides a Chance To Reform Antitrust’s Rule of Reason

Herbert Hovenkamp writes that the First Court’s recent ruling against American Airlines and JetBlue for coordinating operations in New York City and Boston exemplifies the correct application of antitrust’s rule of reason, which has troubled courts and plaintiffs and led to underenforcement for decades.

In a Flawed Antitrust Paradigm Shift, Tacit Collusion May Be One Area Worth Exploring

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.

Designing Google Search Antitrust Remedies To Ignite Competition

In a new report from the Knight-Georgetown Institute, Alissa Cooper, Jasper van den Boom, and Zander Arnao examine how to make remedies most effective in the Google Search antitrust case. They argue that restoring competition in online search requires a comprehensive package of remedies that takes into account the multiple levers by which Google Search built, maintains, and could rebuild its monopoly.

The Rise of the Antitrust Consensus Against Neoliberalism

Eleanor Fox writes that the paradigm shift in United States antitrust is not best understood as an embrace of neo-Brandeisian anti-bigness ideas but rather a rejection of neoliberal principles that have prevented effective antitrust regulation for decades. The shift encompasses the concerns and efforts of centrists, progressives, and neo-Brandeisians.

Thomas Kuhn and the Structure of an Antitrust “Revolution”

John W. Mayo reviews whether or not the articulated principles and priorities of the Neo-Brandeisian movement in antitrust scholarship and enforcement represent a “paradigm shift,” per the philosophy of Thomas Kuhn. Mayo finds that the Neo-Brandeisian discourse is best understood as situated within the continuum of the current antitrust paradigm, and that many of its efforts to substantiate its distinctive ideas have failed to properly ground them in empiricism or repudiate existing studies.

Rebuttable Structural Presumptions Improve Merger Review

In new research, Filippo Lancieri and Tommaso Valletti analyze the shortcomings of the current merger review system and defend stronger rebuttable structural presumptions as an important step forward.

Can the FTC’s PBM Complaint Create a Competitive Pharmaceutical Marketplace?

Fiona Scott Morton reviews the merits of the Federal Trade Commission’s complaint against the three largest pharmacy benefit managers (PBMs) for suppressing competition in pharmaceutical markets. Although the complaint’s alleged harms are narrow, it is a welcome start that promises to shed light on the PBM’s expansive anticompetitive practices and ultimately lower drug prices for Americans.

The EU’s Next Competition Commissioner Must Set Out Her Vision for Change

Competition policy in the European Union is moving toward a new phase. Max von Thun parses ideas from two recent documents outlining the future of competition in the EU—a report from former Italian Prime Minister Mario Draghi and a “Mission Letter” from European Commission President Ursula von der Leyen—to understand what questions competition chief Margrethe Vestager’s appointed replacement, Teresa Ribera, must address as she lays out her own vision for the future of competition policy in the EU.

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