Legal Principles in Antitrust Enforcement

We study antitrust enforcement that aims to channel price‐fixing incentives of cartels through setting fine schedules and detection levels. Fines obey legal principles, such as the punishment should fit the crime, proportionality, bankruptcy considerations, and minimum fines. Bankruptcy considerations limit maximum fines, ensure abnormal cartel profits, and impose a challenge for optimal antitrust enforcement. We derive the fine schedule and detection level that are constrained‐optimal under legal principles and sustainability of cartel prices. This fine schedule lies below the maximum fine, makes collusion on lower prices more attractive than on higher prices, and, hence, relates to the body of literature on marginal deterrence.     

反垄断法私人实施的法经济学分析

反垄断法的实施分为公权实施和私人实施两种,美国反垄断法私人实施的情况比较普遍,我国传统上看重的是公权力的实施作用,而忽略私人力量对反垄断法的实施.反垄断法私人实施在经济学上要满足几个条件,如信息不对称、激励机制、成本/效益最大化.通过对美国反垄断法私人实施条件的分析,指出了我国目前反垄断法私人实施的不足和有待改进的地方,如起诉主体、激励机制的设计以及私权与公权力之间的协助关系.     

司法制度、工资激励与反腐败:中国案例

现有研究表明,自20世纪90年代以来,中国的腐败没有得到有效遏制,其根本原因是什么?中国目前实施的反腐败策略效果如何?这些都是反腐败研究中必须关注的重要问题。本文利用中国1989—2006年省级面板数据,从立法、执法和工资激励等视角实证分析了中国反腐败策略的效果。文章发现,司法制度建设(增加立法数量和加大执法力度)能够显著减少腐败发生率;高薪养廉(增加公务员工资)对反腐败发挥了积极影响;预算外收入增加是导致腐败蔓延的原因之一。另外,司法制度(立法)在反腐败中的作用受到预算外收入的影响。     

Oil explains all: desirable organisation of the Russian fuel markets (on the data of three waves of antitrust cases against oil companies)

This article considers the mutual influence of antitrust enforcement in the petroleum product markets and competition legislation in Russia. An analysis of infringement decisions by the Russian competition authority allows us to understand the perceived goals of economic policy in this sector. The shift from antitrust investigations and infringement decisions to a very specific set of remedies is explained by the desire to maintain low retail prices under increasing concentration without price subsidisation or promotion of entry at the refining stage of the value chain. The article highlights the specific use of antitrust legislation to maintain low fuel prices and support independent retailing companies. We also note the limitation this policy faces. The goals and effects of antitrust enforcement in the industry explain, in turn, the specific path of competition legislation development in Russia.     

Antitrust Enforcement and Non-Enforcement as a Barrier to Import in the Japanese Automobile Industry

Foreign automobile manufacturers long have found it difficult to compete in the Japanese automobile market. For decades, governmentally imposed restraints prevented foreign manufacturers from gaining a foothold in the Japanese market. In recent decades, these governmental restrictions have been replaced by private restraints which create equally formidable barriers to entry. Many private restraints persist despite repeated informal investigations and administrative guidance by the Japan Fair trade Commission (JFTC). The endurance of these private restraints raises the question of what mechanisms may be available to make the Japanese automobile market more contestable. While vigorous and transparent enforcement of Japan's Antimonopoly Law by the JFTC is the preferred mechanism, other mechanisms for alleviating these private restraints include the extraterritorial enforcement of U.S. antitrust laws by U.S. antitrust enforcement authorities, mediation by the OECD or the enforcement of an international competition code in an international forum.     

Self-Reporting and Private Enforcement in Environmental Regulation

Self-reporting of compliance status has become a common feature in the enforcement of environmental regulation. In this paper, I generalize existing models of enforcement with self-reporting to include the possibility of private enforcement of regulation through citizen suits. This allows me to identify an additional argument for the efficiency of self-reporting: it can increase the likelihood of a successful suit and thus facilitate private enforcement of regulation. Specifically, if self-reporting sufficiently increases the expected penalty for losing a citizen suit, if the costs of private enforcement are low, and if inspection costs are high enough relative to enforcement costs, self-reporting lowers expected regulatory and social costs by allowing the regulator to rely on private enforcement and decrease his enforcement efforts.

---

     

Corruption,intrinsic motivation,and the love of praise

Do higher wages prevent corruption (bribe taking)? We investigate a setting where individuals who apply for public sector jobs are motivated not just by monetary incentives but also by intrinsic motivation and concern for the collective reputation of their profession. We show that an increase in monetary compensation may cause reputation‐concerned individuals to be more prone to participate in corruption due to an “overjustification” effect. The overall effect of monetary incentives on fighting corruption crucially depends on the composition of the pool of public sector workers for two reasons: first, different types of workers react differently to the same policy; second, the composition of the pool of workers affects individual behavior through its effect on collective reputation. These results imply in particular that policies to fight corruption should focus more on increasing the collective reputation of the public sector rather than using monetary incentives, which have perverse effects on some agents.     

Antitrust Enforcement and Nonenforcement as a Barrier to Imports – with Illustrations from the Japanese Film Dispute

The role of antitrust in opening foreign markets to imports is a strong yet often unpredictable undercurrent in international trade disputes. The U.S. government may seek to protect its exporters who are denied access to a foreign market either by enforcing U.S. antitrust laws or by using trade law remedies against the importing country for not enforcing its antitrust laws. Both actions raise issues of extraterritorial jurisdiction and comity.The primary goals of antitrust law and trade law are sometimes complementary but often diverge. Antitrust is primarily intended to benefit consumer welfare, while the purpose of trade law is to gain access to foreign markets for the benefit of domestic enterprises and their workforces. Consequently foreign market access pursued under antitrust law can raise novel issues when there is no apparent injury to domestic consumer welfare suffers from too little competition, whereas trade law pursue market access strictly as principles of fairness that have no necessary relationship with consumer welfare anywhere.This paper examines two aspects of antitrust law – (1) non-enforcement by the importing country, and (2) enforcement of U.S. law to compel access to the foreign market – and discusses the current dispute between Eastman Kodak Co. and Fujji Photo Film Co. as an illustration of the issues introduced above.     

算法合谋的反垄断规制及工具创新研究

在数字经济领域,数字商务企业采用算法定价会明显提高合谋的可能性和可实施性,具有较大的价格合谋风险,因而成为反垄断法关注的重点。学理上,尚待明确的问题有:算法定价促进合谋的内在机理和类型化机制;如何创新反垄断执法体制以有效规制自主学习算法;在反垄断事后执法无效情况下,是否需要以及如何实行事前规制等。研究表明:算法合谋的反垄断规制宜坚持分类治理原则,采取事后反垄断禁止为主并辅之以事前规制的政策组合,反垄断政策工具创新应主要针对自主学习算法合谋。算法合谋反垄断规制政策需重新界定构成非法合谋的"协议"要件,明确当事企业的主体责任,重在采取以"软执法"为主的反垄断执法体制。事前规制政策应坚持"基于设计来遵守法律"的原则,强化算法审查机制和审查能力建设,并将提升算法透明度和可问责性作为重点。     

PATENT POOLS AND CROSS‐LICENSING IN THE SHADOW OF PATENT LITIGATION*

This article develops a framework to analyze the incentives to form a patent pool or engage in cross‐licensing arrangements in the presence of uncertainty about the validity and coverage of patents that makes disputes inevitable. It analyzes the private incentives to litigate and compares them with the social incentives. It shows that pooling arrangements can have the effect of sheltering invalid patents from challenges. This result has an antitrust implication that patent pools should not be permitted until after patentees have challenged the validity of each other's patents if litigation costs are not too large.     

NEW INSIGHTS INTO THE DECLINE OF ANTITRUST ENFORCEMENT

The total number of cases that the Antitrust Division has filed during the past decade has increased, but the number of significant criminal price-fixing cases has declined. Policy changes have had significant effects on other areas of enforcement. This paper argues, however, that the decline in this dimension of antitrust enforcement can be explained by a 1974 act of Congress that increased criminal penalties for price-fixing violations from the misdemeanor level to the felony level. According to this argument, the stiffer penalties' deterrent impact has reduced the supply of antitrust violations. In this respect, the analysis highlights the flaws in measuring the strength of enforcement from the frequency of cases filed. In addition, the paper reports empirical evidence from a multinomial logit model of defendant plea choice indicating that the felony penalties encourage defendants to plead not guilty more frequently. Furthermore, data on the outcomes of criminal antitrust cases reveal that the government has greater difficulty in obtaining convictions when felony penalties apply. From the viewpoint of enforcers, these findings imply that detecting and prosecuting significant price-fixing violations is more difficult. This, in turn, helps explain the reduction in related private enforcement.     

Pollution abatement with limited enforcement power and citizen suits

Federal environmental laws in the U.S. can be enforced by government agencies or by private parties through citizen suits against polluters. Here, I extend the standard enforcement model to examine the role played by citizen suits. The main results from the paper suggest that in a model with limited enforcement power and citizen suits the regulator fully exercises his enforcement power when the expected penalty from a citizen suit is low, but increases his reliance on citizen suits as the expected penalty rises. Whether an enforcement regime that allows private enforcement is efficient depends not only on the relative costs of private and agency enforcement, but also on the changes in inspection costs that may be caused by private enforcement and the expected penalty from losing a citizen suit. These results suggest that in practice private enforcement may lower social costs as long as relatively inexpensive agency enforcement options, such as administrative proceedings, do not preclude citizen suits.      

The Interaction of Legal and Social Norm Enforcement

Although legal sanctions are often nondeterrent, we frequently observe compliance with “mild laws.” A possible explanation is that the incentives to comply are shaped not only by legal, but also by social sanctions. This paper employs a novel experimental approach to study the link between legal and social norm enforcement. We analyze whether the two institutions are complements or substitutes. Our results show that legal sanctions partially crowd out social norm enforcement. Mild laws nevertheless give scope for a potentially large, positive welfare effect, as a higher level of compliance is achieved at lower social enforcement costs.     

Competition and corruption in an agency relationship

The paper reconsiders the relationship between competition and corruption in a model, where corruption has solid informational foundations and where the regulatory response to the possibility of corruption is taken into account. It is shown that the effect of greater competition on corruption depends on the complementarity or substitutability of the two instruments available to decrease information rents, namely low powered incentives and greater competition. The paper concludes with a brief empirical exploration of the relationship between competitiveness and corruption on African data.     

INTERNATIONAL ANTITRUST ENFORCEMENT AND MULTIMARKET CONTACT*

This article analyzes cartel formation and international antitrust enforcement when multinational firms operate in several jurisdictions with local antitrust authorities. We are concerned with how the sustainability of collusion in one local market is affected by the existence of collusion in other markets when they are linked by a negative demand relationship. The interdependence of cartel stability across markets leads to potential externalities in antitrust enforcement across jurisdictions. Local antitrust enforcement equilibrium enforcement may exhibit a nonmonotonicity in the degree of market integration. We compare it with globally optimal antitrust enforcement policy and discuss the role of international antitrust coordination.     

MIXED OWNERSHIP,MANAGERIAL INCENTIVES AND BANK COMPETITION

We consider deposit competition between two banks, where prior to competition one bank is subjected to a nationalization decision and the other bank chooses managerial incentives. The government who maximizes a modified form of social welfare (with greater weight on profit than depositor surplus) chooses only partial nationalization, which still hurts the rival private bank. But by offering deposit‐linked managerial incentives the private bank recovers its lost profit and induces even less nationalization, leaving social welfare unchanged. However, under interest rate competition for differentiated deposits the private bank offers profit‐linked managerial incentives while the other bank may be completely nationalized.     

A MODEL OF BUREAUCRACY AND CORRUPTION*

We analyze bureaucracy and corruption in a market with decentralized exchange and “lemons.” Exchange is modeled as a sequence of bilateral, random matches. Agents have private information about the quality of goods they produce and can supplement trade with socially inefficient bribes. Bureaucracy is modeled as a group of agents who enjoy centralized production and consumption. Transaction patterns between the bureaucracy and the private sector are fully endogenous. Centralized production and consumption in the bureaucracy give rise to low power incentives for the individual bureaucrats. As a result, private agents might bribe bureaucrats, whereas they do not bribe each other. An equilibrium with corruption and an equilibrium without corruption can coexist. We discuss some welfare implications of the model.     

THE IMPACT OF ANTITRUST GUIDELINES ON BUSINESS

The dual antitrust goals of predictable law enforcement and accurate decisions in individual cases have been in conflict for decades. There are three dimensions to this conflict. First, there may be insufficient information on how the courts and enforcement agencies interpret the antitrust statutes. Second, the enforcement agencies may not use consistent standards to evaluate actual and potential antitrust cases. Third, antitrust guidelines may differ significantly from case law.
Unfortunately, attempts to improve one dimension of antitrust policy generally create conflicts elsewhere. Thus, the search for better antitrust decision making in individual cases has made antitrust counseling more complex and expensive. Over time, standards have evolved at different rates at the Department of Justice (DOJ), the Federal Trade Commission (FTC), and the courts, and inconsistencies among these three decision-making bodies have further complicated the task of antitrust counseling. In this environment, improved and updated information on antitrust standards can potentially be very valuable to the business community.     

An inquiry into the state's role in marriage

The role of the state in the institution of marriage is explored. The author argues that government intervention in marriage is a means of avoiding large transaction costs between men and women. Such intervention is successful because marriage creates incentives that make private enforcement relatively costly and because marriages tend to be homogenous. The hypothesis is tested by examining U.S. state responses to changing divorce laws. The author concludes that such responses are consistent with the state increasing the social value of marriage by mitigating transaction costs.     

Government incentive strategies and private capital participation in China’s Shale gas development

Shale gas development investments are uncertain and irreversible in the initial stage in China. Flexible incentive strategy is needed for governments to guide private capital participation at different development stages. This study aims to provide analysis governments can use to encourage private investment in shale gas projects according to its plans in an extended real options framework. A social benefits variable is introduced to determine the threshold of social benefits that determine whether the government will choose a deferred or instant incentives strategy. By considering the efficiency factor, we show the optimal arrangements of two kinds of incentives: tax cuts and production subsidies, to implement incentive targets. The results indicate that current market demand and social benefits are the key factors that affect the government’s choice of incentive strategy. We also find that the optimal level of incentives, either tax cuts or production subsidies, are independent of current market demand and future market uncertainty under the delayed incentive strategy, but which affect the optimal level of incentives under the instant motivation strategy, and ignoring the negative influence of unpredictable random events on future market demand might lead to insufficient government incentives in this case.