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TABLE OF CONTENTS I. INTRODUCTION 693 II. AN OVERVIEW OF ANTITRUST ECONOMICS, THEORY, AND DOCTRINE 699 A. Antitrust Economics 701 1. Supply, Demand, Competition, and Monopoly 701 2. Utility and [...], The rise of large, market-concentrating technology firms like Amazon, Inc. is driving commentators, regulators, and politicians to rethink the law of antitrust. In particular, "New Antitrust" reformers propose that the narrow focus on consumer welfare has caused antitrust law to stop too short in corralling the broader social and economic consequences of Big Tech's "bigness." Proponents of the consumer welfare standard argue that it has worked well to distinguish beneficial competition from harmful aggression and, further, to reduce costly legal uncertainty. There is now momentum for substantial reform to antitrust law and practice and a growing debate about what such reform might include. This Article contributes to the debate by presenting a modest case study of a market that is evolving on Amazon, Inc.'s Marketplace platform: the market for nonprescription components of continuous positive air pressure (CPAP) machines, medical devices prescribed to patients suffering from sleep apnea. The study reveals two observations. First, the underlying economic and doctrinal logic of consumer welfare antitrust remains sound. Second, the study illustrates positive social consequences beyond just the economic wealth and welfare that the consumer welfare standard uses as its lodestar. This Article focuses on the second observation because New Antitrust reformers' core claim is that proponents of the consumer welfare approach are wrong to dismiss indirect negative social and economic consequences of bigness, such as harm to small business, stifling of innovation, and inequality. This Article follows the New Antitrust reformers into this space by illustrating counterbalancing social and economic consequences from Amazon's consolidation, including a thriving network of small and innovative dealers, other small innovators that serve them, increased employment opportunities, and even lowering of healthcare costs. Amazon has grown large and has concentrated online retail and related logistics, but its largeness has spurred innovation, competition, and social value-creation just upstream.

I. Introduction II. U.S. Antitrust Policy's Broad, Multi-Goal Tradition A. Antitrust in the Late Nineteenth Century 1. Antitrust Goals in the Sherman Act Legislative History 2. Early Antitrust Cases Support [...], Two recent papers by prominent antitrust scholars argue that a revived antitrust movement can help reverse the dramatic rise in economic inequality and the erosion of political democracy in the United States. Both papers rely on the legislative history of the key antitrust statutes to support their case. Not surprisingly, their recommendations have been met with alarm in some quarters, and with skepticism in others. Such proposals by antitrust reformers are often contrasted with the Consumer Welfare Standard that pervades antitrust policy today. The Consumer Welfare Standard suffers from several defects: (1) it employs a narrow, unworkable measure of welfare; (2) it excludes important sources of welfare based on the assumption that antitrust seeks only to maximize wealth; (3) it assumes a constant and equal individual marginal utility of money; and (4) it is often combined with extraneous ideological goals. Even with these defects, however, if applied consistent with its theoretical underpinnings, the consideration of the transfer of labor rents resulting from a merger or dominant firm conduct is supported by the Consumer Welfare Standard. Moreover, even when only consumers (and not producers) are deemed relevant, the welfare of labor still should consistently be considered part of consumer welfare. In contrast, fostering political democracy--a prominent traditional antitrust goal that was jettisoned by the Chicago School--falls outside the Consumer Welfare Standard in any of its constructs. To undergird such important broader goals requires that the Consumer Welfare Standard be replaced with the General Welfare Standard. The General Welfare Standard consists of modern welfare economics modified to accommodate objective analyses of human welfare and purged of inconsistencies.

The year 2007 heralded a major advance in China's entry to the global economy's rules-based marketplace. Its Anti-Monopoly Law 2007 (AML 2007) taking inspiration from European Union (EU) antitrust concepts contained internationally familiar key antitrust prohibitions. It appeared to satisfy key benchmarks, which any credible antitrust enforcement system should exhibit, namely Legitimacy and Effectiveness. However, in this original contribution, analysing 14 years of leading case law, the authors identify several key persistent Legitimacy and Effectiveness issues which arise when private parties attempt antitrust enforcement through the courts. On key issues such as: (i) Compensation awards inadequacy; (ii) Lack of rights for indirect purchasers; (iii) Absence of a passing-on defence; and (iv) Limitations of collective litigation mechanisms, deficiencies arising in each of these four areas are identified and analysed. Pathways to reform are set out. Comparative analysis with the corresponding EU and US jurisprudence is undertaken throughout, to illuminate the contrast in treatment for antitrust litigants facing similar antitrust situations. Recently enacted reform legislation (AML 2022) does not remedy the antitrust protection concerns identified by the authors. Private parties seeking antitrust redress in China will therefore continue to have weaker remedies in antitrust enforcement cases, in contrast with their EU and US counterparts. The absence of comprehensive reform means that Legitimacy and Effectiveness deficiencies will continue to undermine legal protection for China's private antitrust enforcement litigants. Furthermore, the research demonstrates how norm adoption on its own cannot raise the propect of better outcomes, unless accompanied by corresponding evolution in the provision of more robust enforcement rights and remedies for antitrust litigants, as well as evolution in judicial interpretation to support antitrust norms acceptance. [ABSTRACT FROM AUTHOR]

The aim of this article is to provide a short overview of the 2023 US Draft Merger Guidelines and some interpretations of its impact on merger control practices. The US practice shows that merger control standards have been changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which could reduce innovation and other behaviours of undertakings that lead to an increase in economic efficiency and improve competition. Due to the fact that guidelines can influence how judges evaluate challenges to mergers, it remains to be seen how the final guidelines will enable the courts to understand and support the agencies' views on antitrust enforcement. [ABSTRACT FROM AUTHOR]

Conclusion Current DOJ and FTC leadership claim the "core value"[42] of the agencies' antitrust agenda is the "rule of law".[43] FTC Chair Khan has characterized the FTC's antitrust philosophy as "fundamentally conservative" because it is 'deeply ground[ed] ... in statutory text, history, judicial precedent, and congressional intent'.[44] AAG Kanter has stressed antitrust enforcement has '... deviated too far from the will of Congress. 13 Press Release, FTC, 'Federal Trade Commission and Justice Department Seek to Strengthen Enforcement Against Illegal Mergers." At the FTC and DOJ's Enforcers Summit on 4 April 2022, AAG Kanter stated that the DOJ will "not hesitate to enforce the law" if it determines that a s 2 criminal charge is warranted. [Extracted from the article]

The aim of this article is to provide a short overview of the 2023 US Draft Merger Guidelines and some interpretations of its impact on merger control practices. The US practice shows that merger control standards have been changed several times, in accordance with the need to increasingly consider economic efficiencies and the consequences of making wrong decisions, which could reduce innovation and other behaviours of undertakings that lead to an increase in economic efficiency and improve competition. Due to the fact that guidelines can influence how judges evaluate challenges to mergers, it remains to be seen how the final guidelines will enable the courts to understand and support the agencies' views on antitrust enforcement.

TABLE OF CONTENTS Introduction 1872 I. Antitrust's Focus on the Trees 1876 A. Standards of Proof 1876 B. Mergers and Future Harm 1879 C. Petitioning Agencies and Courts 1884 D. [...], Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive. That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market. The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can't effectively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way. Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus to challenged conduct. Instead of asking "is the overall behavior of this company reducing competition in the market," they focus on a particular merger or challenged monopolistic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today.

ABSTRACT The real property recording system is designed to protect purchasers and mortgagees against defects in title. Navigating that system is beyond the capacity of most laymen; historically, purchasers hired [...]

This study examines the operation of the New York, Chicago & St Louis Railroad Company, which is better known by the name, the Nickel Plate Road (NKP). The operations and financial reports from its inception through the period under study provide evidence that management adopted practices that contributed to a populist view of behaviour akin to the robber baron image. This added to social disruption, and the need for anti-trust regulation. Monopolistic tendencies of U.S. large-scale enterprises in the last decades of the nineteenth century motivated speculative investors to build the NKP for selling it to ensure anti-competitive aims of the acquirer. This article, based on the annual accounting reports, asserts that enabling such a structure guided NKP's activities. This demonstrates that laissez-faire business policy alone was failing to meet developing social constructs for an industrial society. Disclosure of accounting numbers became an expectation with the rise of the Interstate Commerce Commission and regulation demonstrating the public use of private interest. Regulating the socio-economic force of railroads and addressing the 'railroad problem' would require decades for government officials to effectively address. [ABSTRACT FROM AUTHOR]

INTRODUCTION 78 I. THE PROCEDURAL HISTORY OF APPLE V. PEPPER 82 A. IN RE. APPLE IPHONE ANTITRUST LITIGATION: THE LOWER COURTS 82 GRAPPLE WITH WHETHER IPHONE USERS HAVE STANDING B. [...]

I. INTRODUCTION When one bank seeks to merge with another, the bank must do so with the approval of a federal regulatory agency. (1) The Department of Justice ("DOJ") plays [...]

The article discusses the process of creating social legislation in the United States of America at the beginning of the 20th century. This legislation in the country was created later than in European countries. It was issued during the presidency of Woodrow Wilson. The process of reviewing these bills in the US Congress, as well as the political struggle associated with their development and adoption, the analysis of the documents themselves are the focus of this article.

INTRODUCTION Scholars and judges widely agree that the U.S. antitrust statutes are open-textured, vague, indeterminate, and textually unilluminating. (1) They further agree that little use can be made of the [...], Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon: judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when, the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained, solely or even primarily as a tug-of-war between a progressive Congress and conservative courts. The judges responsible for these decisions were jar from uniformly conservative, Congress has not mobilized to overturn the judicial precedents, nor, despite opportunities to do so, have the courts constitutionalized their holdings to prevent congressional overriding. Antitrust antitextualism is best understood as an implicit political arrangement in which Congress writes broad statutes expressing anti-bigness republican idealism, and then the courts read down the statutes pragmatically to accommodate competing demands for efficiency and industrial progress.

This article combines two relatively new subjects of antitrust scholarly interest: labor market power and corporate governance. In so doing, it speaks to a number of recent debates that have grown up both inside the scholarly antitrust literature and adjacent to it. First, this article interprets the shift in the balance of power within corporations favoring shareholders at the expense of workers, both in economic-theoretical and historical terms. Second, it lays out the role of shareholders and the common ownership channel as a vector for anticompetitive conduct arising between firms, not just within firms, thanks to profit maximization at the portfolio level rather than the firm level. Third, it evaluates the claim that employer market power has increased, relative to other current explanations for labor market trends. Fourth, it ties rising employer power in labor markets to the increasing significance of common ownership. And finally, it contends that antitrust is a suitable policy remedy to the dual problems of anticompetitive common ownership and increased employer power, provided it abandons the consumer welfare standard and instead elevates worker welfare to an equivalent juridical status. [ABSTRACT FROM AUTHOR]

TABLE OF CONTENTS INTRODUCTION 1468 I. AN OVERVIEW OF THE Two IMMUNITIES 1471 A. State Action 1471 B. The Eleventh Amendment 1479 II. THE TWO IMMUNITIES AND ANTITRUST POLICY 1487 [...], The Parker v. Brown (or "state action") doctrine and the Eleventh Amendment of the Constitution impose different limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each other (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based on statutory interpretation of the Sherman Act; the Court has shaped the doctrine over seventy-five years, guided by both considerations of state sovereignty and antitrust policy, so it should reflect a balance of these two critical variables. The Eleventh Amendment immunity, by contrast, has nothing specifically to do with antitrust policy; it is a general constitutional doctrine based on state sovereignty, with some acknowledgment of the demands of general federal authority. Our concern is that the application of the broader immunity can thwart the balance between state sovereignty and antitrust policy reflected in the antitrust-specific immunity. There are many differences between the immunities, but the only significant area of concern is in the subset of cases in which Eleventh Amendment immunity applies but the state action immunity does not--cases, in other words, in which the Supreme Court has chosen to deny Parker immunity to state-connected actors, in part because of considerations of antitrust policy. In those cases, the antitrust-specific version of sovereign immunity does not protect the state actors from damage liability, but the Eleventh Amendment immunity does. Is that a problem? To make a long story short, we conclude that the effect of the conflict on consumer welfare is probably small, because of the Eleventh Amendment immunity's own limitations, and because of adaptations that public and private enforcers can make in case of a conflict. The outcome may, entirely by accident, be efficient.

INTRODUCTION: MOVEMENT ANTITRUST Antitrust in the United States today is caught between its pursuit of technical rules designed to define and implement defensible economic goals, and increasingly political calls for [...]

The US appears to lean towards the model of unconcentrated and distributed competition regulation agencies, instead of a single concentrated one. Aside from the states and private litigants, in practice, this model mainly runs through the Department of Justice (DOJ), via its Antitrust Division, and the Federal Trade Commission (FTC)'s enforcement. Traditionally, under developments of the regulatory approach, the 'quasi-judicial' FTC could be understood to be a cornerstone of US antitrust law, particularly in its practical enforcement. However, it appears that the DOJ contributes far more policies on the specific regulation of mergers as well as consumption of merger remedies. By analysing the US model of 'inter-agency competition' under perspectives of merger control, this writing leads to proof that the DOJ is a dominant actor to some extent. More significantly, the DOJ's performances partially bring the FTC and others to the uniformity of stipulated mergers as well as approved remedy fashions. [ABSTRACT FROM AUTHOR]

The article analyzes the term "competition" and perception of this notion given by various prominent economists. The evolution of understanding of the concept of "competitive market" has been considered. The article identifies the differences between the activities of anti-monopoly committees in countries such as the United States of America, the United Kingdom, Japan, Germany, Spain, and France. Particular attention was paid to the development of the legislative framework in these countries. The comparative characteristics of the responsibility areas of the antitrust agencies in the European Union and the United States of America has been provided. The study established that antitrust policy in the European Union is more liberal. [ABSTRACT FROM AUTHOR]

NOTE CONTENTS INTRODUCTION I. THE CHICAGO SCHOOL REVOLUTION: THE SHIFT AWAY FROM COMPETITIVE PROCESS AND MARKET STRUCTURE A. Predatory Pricing B. Vertical Integration II. WHY COMPETITIVE PROCESS AND STRUCTURE MATTER [...], Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm's structure and conduct pose anticompetitive concerns--yet it has escaped antitrust scrutiny. This Note argues that the current framework in antitrust--specifically its pegging competition to 'consumer welfare,' defined as short-term price effects--is unequipped to capture the architecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon's dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are heightened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have rewarded. Under these conditions, predatory pricing becomes highly rational--even as existing doctrine treats it as irrational and therefore implausible. Second, because online platforms serve as critical intermediaries, integrating across business lines positions these platforms to control the essential infrastructure on which their rivals depend. This dual role also enables a platform to exploit information collected on companies using its services to undermine them as competitors. This Note maps out facets of Amazon's dominance. Doing so enables us to make sense of its business strategy, illuminates anticompetitive aspects of Amazon's structure and conduct, and underscores deficiencies in current doctrine. The Note closes by considering two potential regimes for addressing Amazon's power: restoring traditional antitrust and competition policy principles or applying common carrier obligations and duties.

Introduction I. Antitrust Law's Treatment of Employer Restraints of Trade A. Per Se, Quick Look, and Rule of Reason: The Good, the Bad, and the Ugly B. The Intersection of [...]

B. Potential Competition The Agencies have occasionally raised concerns that vertical mergers would eliminate potential competition in circumstances in which one of the merging parties was the most likely perceived [...]

"Zero-price markets," wherein firms set the price of their goods or services at $0, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, [...]

Competition regulation nowadays is a result of a nexus of many intertwined phenomena, which under different circumstances might bring different results. Throughout the history of this process it is easy to observe quite complicated relationship between economic theories of competition and theory and practice of law. It might look, as if institutions regulating competition are simple realisation of economic theories. The truth is different, as competition regulation originated in times, when complex theoretical analysis of that type was not condemning trusts and was generally leaning towards self-regulatory powers of competition. The main theme of this paper is an attempt to identify the way of introducing the first modern competition regulation law. In the conclusion, the paper substantiates the hypothesis, that the economics played insignificant role in the whole process, it even might be stated, that the Sherman Antitrust Act was introduced despite the economists’ scepticism towards such way of regulation of markets. In the analysis other explanations for the Act emerge: one rooted in public choice theory, the other taking into consideration motives of possible personal revenge of Sen. Sherman.

INTRODUCTION For over thirty years, the Supreme Court's decisions in Illinois Brick Co. v. Illinois (1) to deny compensation to indirect purchasers (2) harmed by antitrust violations has drawn consistent [...]

INTRODUCTION PART I: THE CONTEXT A. Patent Policy-The Economic Efficiency Paradigm, in Brief B. The Origins and Evolution of the Patent Misuse Doctrine PART II: THE ARGUMENT FOR ELIMINATING PATENT [...]

The two leading merger systems--those of the United States and the European Union--treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than [...]

ABSTRACT Fueled by economics, antitrust has evolved into a highly sophisticated body of law. Its malleable doctrine enables courts to tailor optimal standards to a wide variety of economic phenomena. [...]

The 2008 merger between XM Radio and Sirius Radio showcased the Federal Communication Commission's (FCC) authority to review proposed mergers and acquisitions. (1) The FCC's merger review authority overlaps with [...]

I. INTRODUCTION The practice by suppliers of products or services of providing discounts or rebates to customers who purchase progressively larger shares of their needs for a particular product or [...]

Competition regulation nowadays is a result of a nexus of many intertwined phenomena, which under different circumstances might bring different results. Throughout the history of this process it is easy to observe quite complicated relationship between economic theories of competition and theory and practice of law. It might look, as if institutions regulating competition are simple realisation of economic theories. The truth is different, as competition regulation originated in times, when complex theoretical analysis of that type was not condemning trusts and was generally leaning towards self-regulatory powers of competition. The main theme of this paper is an attempt to identify the way of introducing the first modern competition regulation law. In the conclusion, the paper substantiates the hypothesis, that the economics played insignificant role in the whole process, it even might be stated, that the Sherman Antitrust Act was introduced despite the economists' scepticism towards such way of regulation of markets. In the analysis other explanations for the Act emerge: one rooted in public choice theory, the other taking into consideration motives of possible personal revenge of Sen. Sherman. [ABSTRACT FROM AUTHOR]

ABSTRACT In December 2003, Sony and Bertelsmann AG (BMG) sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost [...]

The definition of markets should be de-emphasized in horizontal merges and exclusionary practices of tying and bundling agreements. Antitrust laws should be adjusted to facilitate balance between innovation and hindering intellectual property. The impact of antitrust laws on market competition is analyzed.

ABSTRACT With the growth of the administrative state, agency-promulgated enforcement policy statements, typically referred to as guidelines, have become ubiquitous in the U.S. federal system. Yet, the actual usage and [...]

I. INTRODUCTION "The labor of a human being is not a commodity or an article of commerce." (1) "The comparative advantage of workers in poor countries is cheap labor." (2) [...]

ABSTRACT The Patent Act of 1952 codified liability for active inducement of infringement and contributory infringement in 35 U.S.C. § 271. The patent law doctrines of active inducement of infringement [...]

INTRODUCTION In FTC v. Arch Coal, Inc., (1) Judge Bates described the proposed remedy (2) to an allegedly anticompetitive acquisition as the "elephant in the room." (3) When the Federal [...]

THE THEORY OF PREDATORY PRICING IS as old as the Sherman Act. Among the evils attributed to John D. Rockefeller and Standard Oil was underpricing rivals to maintain a monopoly [...]

FOREWORD Welcome to the first publication of our third Working Group, this one devoted to the Role of Economics in Antitrust. The Sedona Conference® is a nonprofit law and policy [...]

I. INTRODUCTION Over the years, private enforcers have played a valuable role in preventing anti-competitive conduct, supplementing a governmental enforcement regime that cannot challenge all illegal behavior given its resource [...]

State attorneys general have merger enforcement authority under their state antitrust statutes and under the Clayton Act. (2) Working individually, with other attorneys general, or with federal antitrust authorities, an [...]