The Letters of John Sherman and the Origins of Antitrust

This paper presents a survey of the letters of Senator John Sherman, who pushed for passage of the first federal antitrust law in the United States. By placing these letters in historical context, this paper helps resolve a debate about Sherman's true intentions in creating an antitrust law. In particular, Sherman's letters reveal that he was more concerned with protecting the interests of small and inefficient businesses than with protecting the interests of consumers.     

Legal tradition and antitrust effectiveness

This article uses cross-country data to empirically investigate through which channel legal origin can influence antitrust effectiveness. The evidence shows that the adaptability channel (legal flexibility) is more important for explaining antitrust effectiveness than the political channel (authority independence). The evidence also suggests that countries in which a judicial decision is a source of law will provide more legal flexibility and will adapt more easily to changing economic circumstances. They will therefore also have better enforcement of antitrust rules. On the other hand, a legal tradition that takes no formal notice of legal precedent will make the competition environment much less predictable. To the extent that these findings are true, one would expect competition agencies in Common law countries to perform better than those in Civil law countries.     

UMBRELLA DAMAGES: TOWARD A COHERENT ANTITRUST POLICY

Price‐fixing cartels usually do not involve all members of an industry. To the extent that the nonconspiring industry members set their prices under the price umbrella of the cartel, the customers of the nonconspiring firms suffer overcharges just like customers of the conspiring firms. Whether these so‐called umbrella plaintiffs have standing to sue for antitrust damages is an unresolved policy question, because the Supreme Court has not spoken on “umbrella damages.” In this article, we identify the judicial concerns regarding umbrella damage claims, which can be traced to Mid‐West Paper and Petroleum Products Antitrust Litigation. These decisions raise concerns that the fact of injury is conjectural and the measurement of the damages is speculative. We first review the divided judicial treatment of standing for umbrella plaintiffs. Next, we describe the economics of umbrella pricing, which reveals that umbrella claims are not inherently conjectural. We then examine the econometric analysis necessary to estimate damages, demonstrating that umbrella damage estimates are not inherently speculative. We also examine some difficulties that exist in damage estimation generally and for umbrella plaintiffs in particular. Finally, we argue that granting standing to umbrella plaintiffs is consistent with the goals of antitrust policy. (JEL L1, L4, K2)     

Private enforcement,corruption, and antitrust design

We examine how the rationale for enabling versus precluding private antitrust enforcement depends on whether antitrust enforcement is corruption-free or plagued by corruption. Corruption in courts affects the incentives to bring forth private antitrust lawsuits. This, in turn, along with corruption in antitrust agency enforcement, alters the incentives to commit antitrust violations. The social welfare effect of enabling private antitrust enforcement in the presence of corruption depends on whether corrupt officials in the ensuing bribery contests favor a particular firm and if so which one and to what extent. Under some circumstances, corruption actually increases the social desirability of private antitrust enforcement relative to the no-corruption scenario. Our analysis highlights that the effects of a given legal arrangement for antitrust enforcement critically depend on the corruption environment and, thus, that the appropriate design of antitrust institutions is context-specific.     

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。     

反垄断机构自利与反垄断过度——基于预算最大化模型分析

与一般文献不同,本文聚焦反垄断的负面影响.受自利动机的驱使,反垄断机构存在预算最大化的倾向,这会造成反垄断过度乃至掠夺企业的后果.因此,我国应该通过各种措施控制反垄断,如明确反垄断利益、明确反垄断权限、公开反垄断信息、加强反垄断监管等,以使反垄断机构尽责地为公共服务.     

COLLUSION AND ANTITRUST DETECTION*

This paper investigates the impact of antitrust policy on the strategic choice of product specification when firms can collude with respect to prices, cannot collude with respect to location and may have their collusion ended if it is detected by the antitrust authority. Depending on the aggressiveness of the antitrust authority, different location configurations may emerge in equilibrium. Extremely aggressive and extremely lax policies lead to the least efficient outcomes while the configuration maximizing social welfare is obtained by an intermediate policy.     

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.     

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.     

Robust political economy: The case of antitrust

The notion of robust political economy is applied to antitrust. It is argued that the universalizability of policy rules is crucial if both the knowledge problem and the incentive problem in antitrust are taken seriously. Policy recommendations of Williamson are compared with those of Hayek. It is further argued that the notion of universalizability is central not only with regard to antitrust but also with regard to a host of other policy areas. JEL Code B52, B53, D02, D80, K21, K40, L40. The author thanks his collaborators Lorenz Blume, Kim Eun Young, Janina Satzer and Michael Seebauer as well as Anne van Aaken for helpful comments and suggestions.     

WHAT PRICE THEORY CAN—AND CANNOT—DO FOR ANTITRUST

This paper examines the methodology and policy recommendations of Judge Robert Bork's writing on antitrust. It accepts as valid his premise that conventional price theory is the only appropriate organon for evaluating the welfare impact of an antitrust rule. However, it holds that in the analysis of cartels and mergers, Bork does not realize the full implications of his approach.
Of the many prohibitions which antitrust law now contains, Bork wants to retain only two-the prohibition of cartels and of large horizontal mergers. Even these two, however, cannot be maintained on pure price theory grounds. According to price theory, if price or merger agreements are inefficient, and i f entry and exit are free, then these agreements-like other inefficient practices-will be eroded by entry. Consistently applied, then, price the0 y provides no support for antitrust laws.
A lack of support on price theory grounds does not imply that antitrust laws are unjustified. Most practices prohibited by anti-trust law have closesubstitutes. Consequently, the law probably inflicts no great harm on economic efjiciency. Moreover, repeal of these laws could result in state-owned monopolies or economic planning, both of which would be far worse for economic efficiency.     

Price effects of airline consolidation: evidence from a sample of transatlantic markets

We offer an analysis of price effects of airline consolidation on a sample of transatlantic markets. While joining airlines’ networks through code-sharing decreases interline fares by up to 22.5% relative to those of non-consolidated carriers, and alliance membership also produces cost savings that decrease fares by up to 10%, antitrust immunity has no significant price effect for interline trips. Evidence that antitrust immunity increases fares on non-stop routes where it decreases competition is not robust. While total effect of airline consolidation on interline fares is about the same as indicated by previous studies, we suggest different sources of this effect. This paper is the first one presenting empirical evidence of no significant price effects of antitrust immunity.      

Market, Trade and Welfare in General Equilibrium

This paper develops a tractable general equilibrium model of an economy with an arbitrary number of industries under increasing returns to scale and imperfect competition. The market structure of the model economy is expressed by two basic sets of parameters: the degree of competition, and the markup ratio prevailing in each industry. The government is supposed to control the degree of competition through antitrust policy and the markup ratio through entry policy. Using this model, I re-examine the results of traditional competitive equilibrium analysis and explore the effects of competition policies on economic welfare and international trade.
JEL Classification Numbers: D43, D50, F11, F12, L13, L41.     

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.     

研发市场界定的适用困境及应对策略

研发市场是经营者在特定产品和技术竞争中形成的市场范围。由于研发活动的不确定性，反垄断执法机关在界定研发市场时难以准确厘定市场边界，更深层次的原因在于维持竞争与激励研发的关系尚不明晰。研发竞争中的垄断行为难以通过相关市场界定的方式判断其违法性，需要结合具体案情和市场条件，动态分析涉案行为是否损害产品或技术研发竞争。     

IS THE REVENUE ALLOCATION SCHEME OF FORMULA ONE MOTOR RACING A CASE FOR EUROPEAN COMPETITION POLICY?

Recent allegations from participants of the FIA Formula One World Championship (F1) suggest that its authorities violate European competition law in two ways. First, they allegedly abuse market power by forcing unfavorable contracts on media revenue allocation upon teams as a whole and on smaller teams in particular (vertical allocation of media revenue). Second, they allegedly form a cartel with selected teams to the detriment of smaller teams by providing unjustified extra payments to these teams (horizontal allocation of media revenues). In doing so, the cartel members allegedly secure supracompetitive rents from the authorities and cement an unfair competitive advantage over the outsider teams. Employing concentration measures from empirical economics, we present an assessment of whether the current antitrust allegations against F1 may be considered valid or not. We show that the allocation scheme employed in F1 considerably differs from those in other professional sports championships. We find the empirical picture to be consistent with an anticompetitive interpretation of F1 media revenue structures and policies. We conclude that there is merit in initiating an in‐depth antitrust investigation of Formula One motor racing. (JEL K21, L12, L40, L83, Z20)     

基于零售商垄断势力的纵向约束--一个经济分析框架

基于零售商垄断势力的纵向约束成为近年来西方国家反垄断司法实践所关注的焦点之一,然而现有的文献对于零售商拥有更大垄断势力的情形较少涉及.本文通过构建基于零售商垄断势力的纵向约束的经济分析框架,试图对传统产业组织理论主要针对生产商垄断势力的研究框架进行一定的补充,并对我国反垄断法的制定提出一些建议.     

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.     

Does antitrust policy promote competition?

Using new measures of the scope and strength of antitrust policies, we find no evidence that more robust antitrust regimes correlate with more intense local competition or less corporate dominance. The results cast doubt on the common textbook assumption that antitrust policies improve levels of competition.     

The United States’ higher education antitrust exemption and college enrollment

This study examines the effect of the higher education antitrust exemption on enrollment of financial aid applicants at highly selective private colleges. The antitrust exemption, used since 2002, was extended to 2022 by the U.S. Congress in 2015, allowing colleges with need-blind admission policy to use common standards without discussing or comparing individual awards. Our findings, which are contrary to earlier studies, suggest that the likelihood of enrollment at the colleges implementing the antitrust exemption increased compared to those that did not. Concerns about the adverse effect of the exemption on enrollment, therefore, seems to be unwarranted. Moreover, the common standards used by need-blind colleges do not seem to increase college access for low income students. These findings can be useful to policy makers who soon have to consider extending the exception beyond 2022.