In this issue:
Following our usual custom, we’re presenting some of the most popular articles we published in 2010, reminding us of the varied global and critical issues that competition policy and antitrust faced in 2010—and, we’re betting, will keep facing in 2011. Enjoy our Baker’s Dozen — and Have a Wonderful New Year!
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Among the Most Popular Articles in 2010
Behavioral Economics as Applied to Firms: A Primer
Discussing the literatures on behavioral economics, bounded rationality, and experimental economics as they apply to firm behavior in markets. Mark Armstrong & Steffen Huck, University College London
Vertical Agreements: New Competition Rules for the Next Decade
The competition rules embodied in these instruments are particularly important given the pervasiveness of vertical agreements. M. Brenning-Louko, Andrei Gurin, Luc Peeperkorn, & Katja Viertiö, DG Comp
The Intel Cases – Legal Convergence or Leaps of Faith?
Our focus will be on what appears at first blush to be an odd convergence of legal theory across the Atlantic Ocean…if both sides approach, but do not reach their goals, will they make things far worse rather than better? Kent Bernard, Fordham Law School
(Minimum) Resale Price Maintenance Under the New Guidelines: A Critique and A Suggestion
There is scope to devise a more flexible and practical approach consistent with the concerns identified by the Commission. Yves Botteman & Kees J. Kuilwijk, Steptoe & Johnson
How Many Markets are Two-Sided?
Once one accepts that two-sided markets are different, one wonders whether competition authorities have, so far, been doing everything wrong. Lapo Filistrucchi, Tilburg Univ. & Univ. of Florence
A Review of the Competition Law Implications of the Treaty on the Functioning of the European Union
Was the Lisbon Treaty primarily only remotely concerned with the practice of competition law? NIcolas Petit, Norman Neyrinck (University of Liege)
The EC Commission’s Review of the EU Competition Rules on Horizontal Agreements
The proposed revisions do, in fact, raise a significant number of technical and more fundamental issues. Paul Lugard (Royal Philips Electronics, Tilburg Law & Economics Centre)
Best Practices in Article 101 and 102 Proceedings: Some Suggestions for Improved Transparency
The Swedish system involves an institutional structure with a division between the investigator (the SCA) and the adjudicator (the Stockholm City Court) and far-reaching transparency (under the principle of public access)”two aspects that have often been criticized as missing in the current Commission procedure. Marcus Glader (Vinge)
U.S. Discovery of European Union and U.S. Leniency Applications and Other Confidential Investigatory Materials
U.S. courts are increasingly faced with resolving a fundamental conflict between the liberal scope of U.S. discovery and sovereign promises that certain information or evidence would remain confidential. Samuel R. Miller, Kristina Nordlander, & James C. Owens, Sidley Austin
When Does a Joint Venture Act as a Single Economic Entity?
A legitimate joint venture entails an efficiency-enhancing integration of economic activity and does not mask a cartel. Gregory J. Werden, Antitrust Division, U.S. Department of Justice
Upward Pricing Pressure and Critical Loss Analysis: Response
We propose that this measure (“UPP”) be used as an indicator of the merger’s likely unilateral effects. Joseph Farrell (FTC) & Carl Shapiro (DOJ).
Joint Ventures and the Sherman Act: The Problem Revealed by American Needle and How Best to Address It
By stepping back from the overambitious antitrust agenda currently applied to joint ventures, the courts can create the clarity needed to allow joint ventures to fulfill the promise recognized in Copperweld increasing a firm’s efficiency and enabling it to compete more effectively. Thomas Brown, Katherine Robison, & Ian Simmons (O’Melveny & Myers)
A Civil Conflict: Can the States Overturn Leegin?
This flurry of legislative activity raises the question: Can a state overturn Leegin consistent with the United States Constitution? The answer to that question is no, at least to the extent the state regulates conduct that is wholly outside its borders. Leiv Blad, Bryan Killian (Bingham)
