In this issue:
The Spring 2012 issue of Competition Policy International takes a look back at articles that have challenged and advanced antitrust scholarship. We then take a step forward by asking the authors to provide updates on their works and explain how changes–or lack thereof–in competition law and policy have affected their views since the articles were published.
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Letter From the Editor
Letter from the Editor – Spring 2012
CPI revisits its archives to see how much–or little–has changed in competition policy and law.
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Protectionism in the European Union
Protectionism in the Age of Austerity – A Further Unlevelling of the Playing Field?
The European Commission’s recent decisional practice demonstrates its continued resolve to block the creation of national”or even European”champions where it considers that such mergers would significantly impede effective competition. Alex Nourry (Clifford Chance) & Nelson Jung (OFT)
EU State Measures Against Foreign Takeovers: Economic Patriotism in All But Name (reprint)
This article examines the compatibility of special rights and other state measures with the EC’s single market objectives within the framework of the EC Treaty and their impact on foreign takeovers and investments. Alex Nourry (Clifford Chance) & Nelson Jung (OFT)
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Deterrence and Punishment in Antitrust
Interview: Update on “Antitrust Sanctions”
The authors show why the mix of sanctions they advocated in 2010 is still relevant today. Douglas Ginsburg (U.S. Court of Appeals, DC Circuit; NYU School of Law) & Joshua Wright (George Mason University School of Law).
Antitrust Sanctions (reprint)
Corporate executives will not be deterred as long as consumers and shareholders bear the brunt of antitrust penalties. Douglas Ginsburg (U.S. Court of Appeals) & Joshua Wright (George Mason Univ.)
Interview: Update on “Antitrust Criminal Sanctions: The Evolution of Executive Punishment”
This interview serves as a companion update to Ginsburg & Wright’s article, as it explains how their proposed model works on the ground and with compliance programs. Donald Klawiter (Sheppard Mullin)
Antitrust Criminal Sanctions: The Evolution of Executive Punishment (reprint)
The increased focus on the defendant executive raises a number of problems that will keep company counsel, as well as targeted executives and their independent counsel, awake at night. Donald Klawiter (Sheppard Mullin)
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Merger Analysis
Collusion Theories in Merger Analysis: Still Alive and Kicking
Comparing the level and outcome of collusion and unilateral effects analyses over the 1993-2010 time period shows how facts, not theory, appear to affect FTC evaluations. Malcolm B. Coate (Federal Trade Commission)
Alive and Kicking: Collusion Theories in Merger Analysis at the Federal Trade Commission (reprint)
This paper undertakes a systematic review of 75 merger decisions to identify the conditions that increase the likelihood of a collusion finding. Standard structural concerns are readily identified, while behavioral factors defy characterization. The results of the analysis also support a Folk Theorem in which structural concerns are validated with some type of performance evidence. Malcolm B. Coate (Federal Trade Commission)
Welfare Standards and Merger Analysis Revisited
How have the revised Horizontal Merger Guidelines affected welfare standards in merger analysis? Ken Heyer (Federal Trade Commission)
Welfare Standards and Merger Analysis: Why Not the Best? (reprint)
The author argues for using the total welfare standard, rather than the more commonly employed consumer welfare standard. In doing so, Heyer responds to three broad objections that have been raised. Ken Heyer (Federal Trade Commission)
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The Use and Spread of Screens
Interview: Update on “Screens for Conspiracies and Their Multiple Applications”
Screens are gaining considerable traction as they are being adopted by regulators, competition authorities, and financial institutions. Rosa Abrantes-Metz (Global Economics Group, NYU Stern School of Business)
Screens for Conspiracies and Their Multiple Applications (reprint)
Screens are not only useful to antitrust agencies; they can also be powerful tools for plaintiffs and defendants in antitrust cases. Rosa Abrantes-Metz (Global Economics Group, NYU Stern School of Business) & Patrick Bajari (Univ. of Minnesota)
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The Classics
Joseph Schumpeter on Competition (reprint)
How did Joseph Schumpeter become so critical to antitrust scholarship when so little of his writing even purports to address the subject directly? Thomas McCraw (Harvard Business School)
A Note on Director & Levi (1956) (reprint)
Prof. Keith Hylton of Boston University School of Law presents this new introduction to Law and the Future: Trade Regulation, by Aaron Director and Edward H. Levi.
Law and the Future: Trade Regulation (1956) (reprint)
In this article, Aaron Director and Edward H. Levi present several contemporary problems in antitrust at the time the article was written, and describe several tenets of what would become known as the Chicago School of antitrust.
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