antitrust and competition
More Heraclitus than Kuhn
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.
Multi-Market Balancing in a New Antitrust Paradigm
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.
The Business Interests That Promoted Cost-Benefit Analysis and Originalism Will Also Kill Them
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.
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.
Have the Analyses of the U.S. Antitrust Laws’ Tests of Illegality and Their Moral Desirability Undergone Paradigm Shifts?
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.
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.
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.