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Twelve Fallacies of the “Neo-Antitrust” Movement
TWELVE FALLACIES OF THE “NEO-ANTITRUST” MOVEMENT Seth B. Sacher John M. Yun Antonin Scalia Law School, George Mason University George Mason University Law & Economics Research Paper Series 19-12 This paper is available on the Social Science Research Network at ssrn.com/abstract=3369013 TWELVE FALLACIES OF THE “NEO-ANTITRUST” MOVEMENT Seth B. Sachera and John M. Yunb Antonin Scalia Law School George Mason University May 1, 2019 Abstract Antitrust enforcement is back in the spotlight with advocates from both the political left and the populist political right demanding fundamental competition policy changes. While there are differences among those calling for such changes, several common beliefs generally unite them. This includes a contention that the writings and interpretations of Robert Bork and the Chicago School of economics have led antitrust astray in a manner fundamentally inconsistent with the original intent of the Sherman Act. Further, they are united by a belief that recent empirical, economic studies indicate the economy is becoming overly concentrated, that market power has been increasing dramatically, that performance in many, if not most, markets has been deficient, and that too much profit is going to too few firms. In this article, we identify and detail twelve fallacies of what we call the “neo-antitrust movement” and their associated claims. At the heart of these fallacies is a fundamental misunderstanding of economics and the consumer welfare standard that has been at the heart of competition policy since at least the 1960s. Additionally, there is a heavy reliance on studies that, upon closer scrutiny, do not support the positions of those who cite them. -
1 Introduction
1 Introduction The Australian Energy Market Agreement (AEMA) establishes a process for the Australian Energy Market Commission (AEMC or ‘the Commission’) to assess and provide advice to the Ministerial Council on Energy (MCE) on competition in the retail electricity and natural gas markets of jurisdictions for the purpose of phasing out retail price regulation where effective retail competition is demonstrated (clause 14.11).1 1.1 Revisions to Statement of Approach In response to a request for advice by the MCE, this Statement of Approach sets out the proposed methodology and consultation approach the AEMC will adopt in conducting the retail competition reviews. The AEMC has previously prepared and published versions of the Statement of Approach which have been applied to the retail competition reviews undertaken in Victoria in 2007, South Australia in 2008 and the Australian Capital Territory in 2010. Over time, the MCE, in consultation with the AEMC, has periodically approved revisions and updates to the Statement of Approach to reflect developments and reforms in energy markets and revised timings of the AEMC’s remaining jurisdictional reviews. This latest MCE approved version of the Statement of Approach has been prepared for application to the New South Wales retail competition review in 2012-13. 1.2 Scope The scope of the competition reviews is set out in clauses 14.11(a) and (c) of the AEMA (see Appendix A). According to the AEMA, the aim of the competition reviews is to assess the effectiveness of competition in the electricity and gas retail markets for the purpose of the retention, removal or reintroduction of retail energy price controls. -
Economics of Competition in the U.S. Livestock Industry Clement E. Ward
Economics of Competition in the U.S. Livestock Industry Clement E. Ward, Professor Emeritus Department of Agricultural Economics Oklahoma State University January 2010 Paper Background and Objectives Questions of market structure changes, their causes, and impacts for pricing and competition have been focus areas for the author over his entire 35-year career (1974-2009). Pricing and competition are highly emotional issues to many and focusing on factual, objective economic analyses is critical. This paper is the author’s contribution to that effort. The objectives of this paper are to: (1) put meatpacking competition issues in historical perspective, (2) highlight market structure changes in meatpacking, (3) note some key lawsuits and court rulings that contribute to the historical perspective and regulatory environment, and (4) summarize the body of research related to concentration and competition issues. These were the same objectives I stated in a presentation made at a conference in December 2009, The Economics of Structural Change and Competition in the Food System, sponsored by the Farm Foundation and other professional agricultural economics organizations. The basis for my conference presentation and this paper is an article I published, “A Review of Causes for and Consequences of Economic Concentration in the U.S. Meatpacking Industry,” in an online journal, Current Agriculture, Food & Resource Issues in 2002, http://caes.usask.ca/cafri/search/archive/2002-ward3-1.pdf. This paper is an updated, modified version of the review article though the author cannot claim it is an exhaustive, comprehensive review of the relevant literature. Issue Background Nearly 20 years ago, the author ran across a statement which provides a perspective for the issues of concentration, consolidation, pricing, and competition in meatpacking. -
Comparative Market Structures in Developing Countries
380. 141 LI7" M671 No. 75 i"J- _ , Comparative Market Structures In Developing Countries by Marvin Miracle The University of Wisconsin LAND TENURE CENTER Madison, Wisconsin 53706 Comparative Market Structures in Developing Countries. 380.14i Wisconsir Uniro Lard Tenure Center. NTIS M671 Comparative Market Structures in Devel j)b oping'hp. Cou;triesoMarvh-7 P. Miracle. 19'0° I-,r /0L6 Bibliographic footnotes. C LTC Repriit -,o, 75. i. Markets. 2. Capital markets. 3. Marketing - Agricultural commodities, I. Miracle, Marvin P. IT. Title. Reprinted from Nebraska Journal of Economics and Business, Vol. 9, No. 4, Autumn 1970. Copyright by the University of Nebraska, 1970 COMPARATIVE MARKET STRUCTURES IN DEVELOPING COUNTRIES* Marvin Miracle Associate Professor,Departmentof AgriculturalEconomics and Chairman,African Studies Program Universityof Wisconsin Market structures in developing countries arc of interest for a number of reasons. Apart from the possibility that market structure may have an important impact on the rate of economic growth-a possibility that will not be explored here-market structure is of interest because it clearly affects the distribution of income, a subject that is increasingly of interest among those working on the problems of developing countries. It is also of interest because economic theory has its widest applications when per fect competition can be assumed. In fact, in absence of evidence to the contrary, something close to perfect competition is nearly always assumed by planners in developing countries. The literature on market structures in developing countries-which are here defined to exclude Communist-bloc countries-is relatively thin, un usually widely scattered, and so far has resulted in few insights as to the impact of market structure on the pace and character of economic devel opment. -
Navigating Social and Institutional Barriers to Markets: How Social Entrepreneurs Identify and Evaluate Opportunities Jeffrey Robinson
7 Navigating Social and Institutional Barriers to Markets: How Social Entrepreneurs Identify and Evaluate Opportunities Jeffrey Robinson Introduction Entrepreneurship research can be broadly placed into three categories: that which examines the people (entrepreneurs); that which examines the process and that which examines the entrepreneurial or business opportunities. This chapter specifically looks at social entrepreneurial opportunities and the process of identifying and evaluating these types of opportunities. I address three important questions: • What makes social entrepreneurial opportunities different from other types of opportunities? • What makes social entrepreneurship special? • How do social entrepreneurs find social entrepreneurial opportunities? The phenomenon of social entrepreneurship For the purposes of this chapter, I define social entrepreneurship (SE) as a process (Shane and Venkataraman, 2000) that includes: the identifica- tion of a specific social problem and a specific solution (or set of solu- tions) to address it; the evaluation of the social impact, the business model and the sustainability of the venture; and the creation of a social mission-oriented for-profit or a business-oriented nonprofit entity that pursues the double (or triple) bottom line. This approach to defining SE allows for future research directions and for clearer distinctions from ‘traditional’ entrepreneurship. 95 96 Social Entrepreneurship Recently, there has been an explosion of interest in the phenome- non of SE. It is an attractive area for practitioners, policy makers, the media and business schools because it addresses several issues in society (Dees, 1998; Thompson, 2002; Alvord, Brown and Letts, 2004; Brainard and Siplon, 2004). SE is a uniting concept that demonstrates the usefulness of business principles in achieving social goals. -
Hearing on Oligopoly Markets, Note by the United States Submitted To
Unclassified DAF/COMP/WD(2015)45 Organisation de Coopération et de Développement Économiques Organisation for Economic Co-operation and Development 12-Jun-2015 ___________________________________________________________________________________________ _____________ English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Unclassified DAF/COMP/WD(2015)45 HEARING ON OLIGOPOLY MARKETS -- Note by the United States -- 16-18 June 2015 This document reproduces a written contribution from the United States submitted for Item 5 of the 123rd meeting of the OECD Competition Committee on 16-18 June 2015. More documents related to this discussion can be found at www.oecd.org/daf/competition/oligopoly-markets.htm. English English JT03378438 Complete document available on OLIS in its original format - This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of English Or. international frontiers and boundaries and to the name of any territory, city or area. DAF/COMP/WD(2015)45 UNITED STATES 1. Following on our submissions to previous OECD roundtables on oligopolies, notably the 1999 submission of the U.S. Department of Justice and the U.S. Federal Trade Commission on Oligopoly (describing the theoretical and economic underpinnings of U.S. enforcement policy with regard to oligopolistic behavior),1 and the 2007 U.S. submission on facilitating practices in oligopolies,2 this submission focuses on certain approaches taken by the Federal Trade Commission (“FTC”) and the U.S. Department of Justice Antitrust Division (“DOJ”) (together, “the Agencies”) to prevent the accumulation of unwarranted market power and address oligopoly issues. 2. Pursuant to U.S. -
Resale Price Maintenance in China – an Increasingly Economic Question
Resale Price Maintenance in China – an increasingly economic question Three recent decisions in China suggest that Resale Specifically, the Court was clear that since RPM was Price Maintenance cases will not be decided solely on a defined in the law as a “monopoly agreement”, it must be legal consideration but will also turn on the economic expected to have the impact of eliminating or restricting context of the agreements in question. competition in order to be found illegal. To determine whether the agreement had the impact of eliminating or Resale Price Maintenance (RPM) is a contractual restricting competition, the Court proposed four constituent commitment imposed by a supplier on its distributors not to economic questions: sell its product for less (or more) than a given price. It is very 1. Is competition in the relevant market “sufficient”? common in distribution contracts throughout the world, 2. Does the defendant have a “very strong” market especially in China because of the control that RPM position? provides over resale quality and the distribution chain. 3. What was the motive behind the RPM agreements? RPM is a particularly contentious area of competition law 4. What was the competitive effect of the RPM? since RPM clauses can be both beneficial and harmful to competition depending on the context in which they are implemented. For example, RPM may facilitate unlawful Specifically, the Court suggested that if competition in the collusion between suppliers by allowing them to control and market was sufficient then it would not have found the RPM monitor the final retail price. RPM may also be forced on agreement illegal. -
Effective Competition and Corporate Disclosure A
EFFECTIVE COMPETITION AND CORPORATE DISCLOSURE A CRITICAL STUDY by RAZAHUSSEIN M, DEVJI B. Sc. (Econ)», University of London, 1961 Barrister-at-Law, Honourable Society of Middle Temple, London, 1962 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF BUSINESS ADMINISTRATION In the Faculty of Graduate Studies We accept this thesis as conforming to the required staricTardT THE UNIVERSITY OF BRITISH COLUMBIA September, 1968 In presenting this thesis in partial ful• filment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study* I further agree that permission for ex• tensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Faculty of Commerce and Business Administration, The University of British Columbia, Vancouver 8, B. C. Canada. ABSTRACT Economic activity in the United States and Canada is predominantly performed by corporations. They are by far the largest private employers of workers, the biggest investors and the predominant instrument of production. They are rapidly growing in size, are generating sufficient funds internally to carry out most of their expansion programs, and are diversifying into unrelated activities. Their affairs are increasingly managed by professional executives who have little, if any, stake In the risk capital. The shareholders, who are legally pre• sumed to exercise control over the powers and actions of corporate executives, are normally too numerous and scattered so as not to be in a position to have a significant influence on the policies of the corporations. -
CHOICE – a NEW STANDARD for COMPETITION LAW ANALYSIS? a Choice — a New Standard for Competition Law Analysis?
GO TO TABLE OF CONTENTS GO TO TABLE OF CONTENTS CHOICE – A NEW STANDARD FOR COMPETITION LAW ANALYSIS? a Choice — A New Standard for Competition Law Analysis? Editors Paul Nihoul Nicolas Charbit Elisa Ramundo Associate Editor Duy D. Pham © Concurrences Review, 2016 GO TO TABLE OF CONTENTS All rights reserved. No photocopying: copyright licenses do not apply. The information provided in this publication is general and may not apply in a specifc situation. Legal advice should always be sought before taking any legal action based on the information provided. The publisher accepts no responsibility for any acts or omissions contained herein. Enquiries concerning reproduction should be sent to the Institute of Competition Law, at the address below. Copyright © 2016 by Institute of Competition Law 60 Broad Street, Suite 3502, NY 10004 www.concurrences.com [email protected] Printed in the United States of America First Printing, 2016 Publisher’s Cataloging-in-Publication (Provided by Quality Books, Inc.) Choice—a new standard for competition law analysis? Editors, Paul Nihoul, Nicolas Charbit, Elisa Ramundo. pages cm LCCN 2016939447 ISBN 978-1-939007-51-3 ISBN 978-1-939007-54-4 ISBN 978-1-939007-55-1 1. Antitrust law. 2. Antitrust law—Europe. 3. Antitrust law—United States. 4. European Union. 5. Consumer behavior. 6. Consumers—Attitudes. 7. Consumption (Economics) I. Nihoul, Paul, editor. II. Charbit, Nicolas, editor. III. Ramundo, Elisa, editor. K3850.C485 2016 343.07’21 QBI16-600070 Cover and book design: Yves Buliard, www.yvesbuliard.fr Layout implementation: Darlene Swanson, www.van-garde.com GO TO TABLE OF CONTENTS ii CHOICE – A NEW STANDARD FOR COMPETITION LAW ANALYSIS? Editors’ Note PAUL NIHOUL NICOLAS CHARBIT ELISA RAMUNDO In this book, ten prominent authors offer eleven contributions that provide their varying perspectives on the subject of consumer choice: Paul Nihoul discusses how freedom of choice has emerged as a crucial concept in the application of EU competition law; Neil W. -
Law-And-Political-Economy Framework: Beyond the Twentieth-Century Synthesis Abstract
JEDEDIAH BRITTON- PURDY, DAVID SINGH GREWAL, AMY KAPCZYNSKI & K. SABEEL RAHMAN Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis abstract. We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neu- trality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it from analyses of power. This Feature offers a framework for identifying and critiquing the Twentieth-Century Syn- thesis. This is also a framework for a new “law-and-political-economy approach” to legal scholar- ship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship. authors. The authors are, respectively, William S. Beinecke Professor of Law at Columbia Law School; Professor of Law at Berkeley Law School; Professor of Law at Yale Law School; and Associate Professor of Law at Brooklyn Law School and President, Demos. They are cofounders of the Law & Political Economy Project. The authors thank Anne Alstott, Jack Balkin, Jessica Bulman- Pozen, Corinne Blalock, Angela Harris, Luke Herrine, Doug Kysar, Zach Liscow, Daniel Markovits, Bill Novak, Frank Pasquale, Robert Post, David Pozen, Aziz Rana, Kate Redburn, Reva Siegel, Talha Syed, John Witt, and the participants of the January 2019 Law and Political Economy Work- shop at Yale Law School for their comments on drafts at many stages of the project. -
The United States Has a Market Concentration Problem Reviewing Concentration Estimates in Antitrust Markets, 2000-Present
THE UNITED STATES HAS A MARKET CONCENTRATION PROBLEM REVIEWING CONCENTRATION ESTIMATES IN ANTITRUST MARKETS, 2000-PRESENT ISSUE BRIEF BY ADIL ABDELA AND MARSHALL STEINBAUM1 | SEPTEMBER 2018 Since the 1970s, America’s antitrust policy regime has been weakening and market power has been on the rise. High market concentration—in which few firms compete in a given market—is one indicator of market power. From 1985 to 2017, the number of mergers completed annually rose from 2,308 to 15,361 (IMAA 2017). Recently, policymakers, academics, and journalists have questioned whether the ongoing merger wave, and lax antitrust enforcement more generally, is indeed contributing to rising concentration, and in turn, whether concentration really portends a market power crisis in the economy. In this issue brief, we review the estimates of market concentration that have been conducted in a number of industries since 2000 as part of merger retrospectives and other empirical investigations. The result of that survey is clear: market concentration in the U.S. economy is high, according to the thresholds adopted by the antitrust agencies themselves in the Horizontal Merger Guidelines. By way of background, recent studies of industry concentration conclude that it is both high and rising over time. For example, Grullon, Larkin, and Michaely conclude that concentration increased in 75% of industries from 1997 to 2012. In response to these and similar studies, the antitrust enforcement agencies recently declared that their findings are not relevant to the question of whether market concentration has increased because they study industrial sectors, not antitrust markets. Specifically, they wrote, “The U.S. -
Behavioral Economics As Applied to Firms: a Primer1
Munich Personal RePEc Archive Behavioral economics as applied to firms: a primer Armstrong, Mark and Huck, Steffen University College London (UCL) January 2010 Online at https://mpra.ub.uni-muenchen.de/20356/ MPRA Paper No. 20356, posted 02 Feb 2010 03:16 UTC Behavioral Economics as Applied to Firms: A Primer1 Mark Armstrong and Steffen Huck Department of Economics University College London January 2010 Abstract We discuss the literatures on behavioral economics, bounded rationality and experimental economics as they apply to firm behavior in markets. Topics discussed include the impact of imitative and satisficing behavior by firms, outcomes when managers care about their position relative to peers, the benefits of employing managers whose objective diverges from profit-maximization (including managers who are overconfident or base pricing decisions on sunk costs), the impact of social preferences on the ability to collude, and the incentive for profit-maximizing firms to mimic irrational behavior. 1. Introduction In recent years there has been a good deal of research investigating how poor or non-standard decision making by consumers might affect market outcomes. In much of this work, the assumption is that firms are fully rational and aim to maximize their profits (and sometimes they do this by exploiting the behavioral biases of consumers). Some of this work points to situations where there is a role for policy which protects consumers from their own failings and from exploitative firms.2 In this article we focus instead on non-standard approaches to firm behavior. Consumers are kept in the background, and are present merely to generate in some fashion a demand curve for the firms' products.