The Theory of Monopolistic Competition.

American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

The End of Reform: New Deal Liberalism in Recession and War@@@The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt

This paper examines developments since the publication of The Economics of Regulation in the theory of incentive regulation and its application to the regulation of unbundled electricity transmission and distribution networks. Conceptual mechanism design issues that arise when regulators are imperfectly informed and there is asymmetric information about costs, managerial effort, and quality of service are discussed. The design and application of price cap mechanisms and related quality of service incentives in the UK are explained. The limited literature that measures the effects of incentive regulation applied to electricity networks is reviewed.

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Incentive Regulation and Its Application to Electricity Networks

The revenues of large companies often rival those of national governments, and some companies have annual revenues higher than many national governments. Among the largest corporations in 2015, some had private security forces that rivaled the best secret services, public relations offices that dwarfed a US presidential campaign headquarters, more lawyers than the US Justice Department, and enough money to capture (through campaign donations, lobbying, and even explicit bribes) a majority of the elected representatives. The only powers these large corporations missed were the power to wage war and the legal power of detaining people, although their political influence was sufficiently large that many would argue that, at least in certain settings, large corporations can exercise those powers by proxy. Yet in economics, the commonly prevailing view of the firm ignores all these elements of politics and power. We must recognize that large firms have considerable power to influence the rules of the ...

/pdf/towards-a-political-theory-of-the-firm-2n8z2e2xnt.pdf

Towards a Political Theory of the Firm

As antitrust cases becomes more complex, so does its remedies. Patterns are beginning to emerge in the dizzying array of remedies in recent monopolization and merger cases. Like the cases themselves, the remedies increasingly focus on access to network industries and platform technologies. In an economy increasingly dominated by information and information technology, access is often dependent on seamless interoperability. It is thus not surprising that antitrust remedies increasingly also have focused the disclosure of competitively necessary information as well as the protection of competitively sensitive information obtained from actual or potential competitors. Finally, the more complex the remedy, the greater the need for sophisticated oversight and dispute resolution mechanisms that rely on third-party experts and typically exceed the resources and strengths of the enforcement agencies. While access and information remedies have been a part of antitrust law since the very earliest days of the Sherman Act, they have become a vital part of litigated cases and settlements in recent times in both the United States and the European Union. This has been particularly true for cases involving network industries, telecommunications, broadcasting, software platforms, and other high technology industries at the forefront of antitrust enforcement. When taken together, these recent cases and settlements constitute an informal revival of the essential facilities doctrine and an acknowledgment that the essential facilities doctrine, and similar access remedies, remain an important and needed part of the antitrust toolkit. This essay will examine the growing use of complex behavioral remedies in both merger and monopolization cases that suggest antitrust enforcement has moved far beyond any stated preference for structural remedies. Particularly in settlements, commitments, and consent decrees, the Antitrust Division, Federal Trade Commission, and the European Commission have permitted mergers and unilateral conduct by dominant firms conditioned upon complex behavioral commitments include: 1) Continued obligations to supply or license competitors and customers with vital inputs on fair and non-discriminatory terms; 2) Continued obligations to allow competitors access to networks on fair and non-discriminatory terms; 3) The disclosure of intellectual property, know how, and technical information necessary to make these access obligations meaningful; 4) Creation of firewalls and other devices to prevent the dominant or merging firms from misusing competitively sensitive information obtained through their ongoing relationships with their competitors and customers; and 5) The use of special masters, technical committees, monitors, regulatory bodies, and the creation of third-party alternative dispute resolution procedures to handle the inevitable disputes that will arise without requiring the agencies or courts to act as long-term regulators of the industries and firms in question. I use examples such as the Microsoft and Intel litigation in the U.S. and the EU, as well as more recent U.S. merger consent decrees involving Google-ITA, Comcast-Universal, and Live Nation-Ticketmaster to illustrate these important changes in competition law enforcement and what they portend for the future.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1895018_code468680.pdf?abstractid=1895018&rulid=4692526&mirid=3

Access and Information Remedies in High Tech Antitrust

Thurman Arnold: A Biography

There is a classic science fiction novel and film that present a metaphor for the isolation of United States antitrust law in the current global context. Richard Mathiesson’s 1954 classic science fiction novel I am Legend, and the later 1971 film released under the name of The Omega Man starring Charleton Heston, both deal with the fate of Robert Neville, a survivor of a world-wide pandemic who believes he is the last man on Earth.

While I am Legend and The Omega Man are obviously works of fantasy, it nonetheless has resonance for contemporary antitrust debate and discourse. United States antitrust law and policy divergences significantly from the rest of the global antitrust community in important areas of scope, philosophy, doctrine, procedure, remedies, and institutions. Much of this divergence in world view is the product of history and path dependence that is largely unique to the United States experience. At the same time, some of the divergence is the result of ideological choices over the past forty years that improbably have remained in place in the United States, while other politics, economics, values, and policy choices have come into prominence throughout the rest of the world.

Unlike The Omega Man, there is no plague and there are no monsters. But there are major fault lines in competition law and policy where the United States is the outlier and in danger of becoming The Omega Man. While there are also many issues of agreement where the United States has been a thought leader, there are a significant number of the most salient and controversial issues in modern competition law where the United States is choosing to go it alone or nearly so.

There are some important caveats to this tale of antitrust exceptionalism. Some of the United States antitrust exceptionalism means more enforcement than elsewhere in the world. In most of the areas discussed in this article, it means less enforcement that is seen elsewhere, particularly than in the European Union and the numerous jurisdictions whose competition law is modeled on EU principles. Nor does going it alone, or being in the minority, mean that the United States position necessarily is in error, but it does caution against demonizing foreign approaches or relentlessly searching to transplant U.S. approaches into very different societies.

This article surveys several significant areas of antitrust law and policy where United States law, procedure, institutions, and remedies differ significantly from the rest of the world. The basic thesis of the article that the growing isolation of U.S. antitrust law is more than just a transatlantic divide. Rather, much of the global community understands U.S. antitrust law and policy, but has rejected its current narrow form in favor of a broader vision of what competition law means, what legal rules are appropriate, and how they should be enforced. Even in areas such as mergers and cartels, outward convergence often masks critically different practices just beneath the surface.

As a result, the debate over the future of the Chicago School is largely moot. Examining what the rest of the world competition community actually does, rather what it says, shows the debate is largely over. Whether measured by numbers of jurisdiction, percentage of world gross domestic production, population, or most other measures, the Chicago school paradigm is the outlier, the Omega Man.

Part I examines single firm conduct as perhaps the most significant and largest area of substantive divergence between the United States and the rest of the world. Part II shifts to the scope of competition law where U.S. antitrust law simply does not capture a wide variety of conduct and tools that form the core of competition law in much of the world. Part III looks at the widespread use of market studies and market investigations where the United States lacks the legal infrastructure to undertake what is routine in key jurisdictions around the globe. Part IV explores how competition law outside the United States may include public interest standards that fall outside the narrow focus of U.S. antitrust law and enforcement. Part V examines similar key divergences in public enforcement, remedies, and private enforcement. Part VI questions why the United States antitrust agencies largely have shied away from the implications of big data and algorithmic competition which are attracting more significant attention abroad. Part VII changes the focus from descriptive to normative and offers preliminary explanations as to the reasons for the growing isolation of United States antitrust law and how both the United States and the rest of the world can respond to this growing divide. I conclude by returning to the question of whether the United States is indeed the Omega Man of global competition law.

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The Omega Man or the Isolation of U.S. Antitrust Law

As a result of the program of social, political, and economic reforms called doi moi" (meaning renovation) implemented by the Communist Party in 1986, market forces have been allowed to operate in Vietnam subject to state supervision. The centerpiece of doi moi has been to attract foreign investment. The results of this reform, as this brief article will show, have been mixed: South Vietnam has had far more success attracting foreign investors than North Vietnam, and much of the foreign capital has flowed to the urban areas, leaving the countryside woefully underdeveloped. Even where development has progressed, however, the legal and other infrastructure has been inadequate to sustain the needs of a complex market economy. Furthermore, economic liberalization has not been followed by the same degree of political liberalizatin. Lastly, in pursuit of most-favored-nation [MFN] status, Vietnam has felt compelled to let the United States dictate the terms of trade, especially with regard to the enforcement of intellectual property rights. Vietnam, however, is still a poor country in which a black market for counterfeit goods thrives, partially because foreign brand-name goods are simply not affordable to the average citizen. In Section I, we provide a general sketch of the role which foreign legal experts play in the law reform of transitional legal systems. In Sections II and III, we relate, through a series of vignettes, our experiences lecturing on U.S. law topics to Vietnamese law students and legal academics and conversing with ordinary Vietnamese citizens. Lastly, in Section IV, we reflect on the flourishing black market in consumer products in Vietnam and the futility of the current U.S. policy of making intellectual property rights enforcement the sine qua non of its trade strategy with Vietnam.

Spencer Weber Waller

Papers

Access and Information Remedies in High Tech Antitrust

Thurman Arnold: A Biography

The Omega Man or the Isolation of U.S. Antitrust Law

Law Reform in Vietnam: The Uneven Legacy of Doi Moi

How the Chicago School Overshot the Mark: The Effect of Conservative Economic Analysis on U.S. Antitrust