Competition law academics’ favourite articles


I asked European academics/friends specializing in competition law to send me their 3 favorite competition law articles ever written and to explain their choice. Not easy (at all!) but here is their contribution. I leave you the pleasure of identifying which articles are the most cited, or to calculate the ratio of European articles vs. American articles…

Cheers,
Thibault Schrepel
(@LeConcurrential)

****

Thibault Schrepel (Utrecht/Harvard University)

1. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207 (1996): The most essential resource regarding the need (or… absence of need) for specific laws and regulations in the face of new technologies. Mindblowing and incredibly well written, nothing to be added here. (link)

2. Richard Posner, Antitrust in the New Economy, 68 Antitrust L.J. 925 (2001): In this short paper, Posner explains that one of the main challenges for antitrust and competition authorities with regard to new technologies is not only substantial, but also procedural. I understood for the first time the curse to always ask myself two questions while writing: “why” (why do I defend this thesis, why do I propose this reform…) and “how” (how, in real life, to implement my proposal). (link)

3. Friedrich A. Hayek, The Pretence of Knowledge, Nobel Memorial Lecture (Dec. 11, 1974), in 79 Am. Econ. Rev. 3 (1989): I remember entering my Ph.D. believing that, with hard work and the right set of data, a proper and scientific answer could be provided to all questions. Boy, was I wrong! In his Nobel lecture, Hayek explains that our human brains are too limited to grasp some issues, which turns out to be a call for humility when we intervene to correct what results from the spontaneous order of the world around us. Thinking about this paper always reminds me how pretentious academic circles are, and since reading it, I keep on asking myself this question every time I am facing a new research question: is it the kind we won’t ever answer (even with the help of new technologies)? (link)

Bonuses: James M. Buchanan, Public Choice: Politics Without Romance, 19 Policy: A Journal of Public Policy And Ideas 13 (2003), because it introduces public choice which I believe is very much needed in today’s antitrust, + Philippe Aghion et al., Competition and Innovation: An Inverted-U Relationship, 120 Q. J. Econ. 701 (2005) because it shows how little we need about market structures, + Lawrence Lessig, Code: Version 2.0 (2005), although it isn’t related to antitrust, but I believe that it shows the path for future applications of antitrust law to new technologies (including blockchain), + Gregory J. Werden, Identifying Exclusionary Conduct under Section 2: The No Economic Sense Test, 73 Antitrust L.J. 413 (2006) because I understood for the first time how to design a legal test and very much agreed with the great features of the “no-economic sense test”, + Daniel A. Crane, Technocracy and Antitrust, 86 Tex. L. Rev. 1159 (2008) because it is the best pushback I have ever read against antitrust populism + finally, my favorite article of the decade, Daniel A. Crane, Market Power Without Market Definition, 90 Notre Dame L. Rev. 31 (2014), an article in which Dan completely turned around my thinking of anti-competitive practices when there are barriers to entry markets. OK, I stop here.

* I feel guilty (a bit) to have asked everyone to stick to 3 papers while putting so many on my list, but hey, I do it because I can 😉

****

Pablo Ibáñez Colomo (LSE)

1. David Evans & Keith Hylton, The Lawful Acquisition and Exercise of Monopoly Power and its Implications for the Objectives of Antitrust, 4 Competition Pol’Y Int’L 203 (2008): One of the most thoughtful reflections about unilateral conduct (and please note there has not been a shortage of pieces on the topic in the past 10 to 15 years). Also a great example of the jewels that the interaction of law and economics can produce. (link)

2. Karen Banks & Giuliano Marenco, Intellectual property and the Community rules on free movement: discrimination unearthed, 15 Eur. L. Rev. 224 (1990): The Legal Service of the European Commission has a long tradition of officials that are not only first-rate litigators but also sophisticated intellectuals with a deep understanding of the law. The combination has often led to the production of pieces that change and/or clarify our understanding of a particular point of law. This article is perhaps the best example of this tradition.

3. Andriani Kalintiri, What’s in a name? The marginal standard of review of “complex economic assessments, in EU competition enforcement, 53 Common Market L. Rev. 1283 (2016): Richard Posner has often emphasized that doctrinal legal scholarship is of paramount importance and should remain the focus of law schools. In his words, the ‘product of the judges and legislators requires a good deal of tidying up, of synthesis, analysis, restatement, and critique’. Andriani’s piece is an example of doctrinal scholarship at its best. (link)

****

Philip Mardsen (College of Europe)

1. Katharine Kemp, Concealed Data Practices and Competition Law: Why Privacy Matters, UNSW Law Research Paper No. 19-53 (2019): There’s a lot written about this digital, competition and privacy interface, this is one of the best recent contributions and Katharine comes up with the goods backed up with evidence. (link)

2. Anything by Fiona Scott Morton, but especially G. Federico, F. Scott Morton, and C. Shapiro, Antitrust and Innovation: Welcoming and Protecting Disruption, Innovation Policy and the Economy (2019): It’s classic Fiona, an evidence-based pro-enforcement argument, written clearly and with notable co-authors including a very robust DG-COMP economist. (link)

3. Milton Handler, Antitrust in Perspective (Columbia University Press, 1957): Not an article but a short book I return to time and time again which discusses the complementary roles of rule and discretion which makes competition policy so interesting and important if applied correctly. (link)

Bonus: Finally I would sneak in a 4th… which is more about how to live your life, regarding a renowned European law expert, Judge David Edward, The ‘article’ I re-read every New Years’ Day is ‘Tales from the Tartan Chambers by Judge Edward’s assistant Diane Hansen-Ingram. It is chapter 1 in ‘A True European’ – Essays for Judge Edward. (link)

****

Caroline Cauffman (Maastricht University)

1. John Temple Lang, Community Antitrust Law—Compliance and Enforcement, 18 Common Market L. Rev. 335 (1981): Published in 1981, this article contains visionary ideas about actions for compensation of harm suffered as a result of infringement of the rules of European competition law, including the idea that an antitrust damages directive would substantially improve  compliance with European competition law. (link)

2. Jean-Charles Rochet & J. Tirole, Platform Competition in Two-Sided Markets, 1 J. Eur. Econ. Ass’n 990 (2003): This article lays the basis for the economic analysis of two sided markets, which is crucial for the assessment of competition law issues in the  relatively new, but very popular platform economy. (link)

3. Ariel Ezrachi and Maurice E. Stucke, Artificial Intelligence & Collusion: When Computers Inhibit Competition, 2017 U. Ill. L. Rev. 1775 (2017): The article is one of the first to draw attention to the impact of artificial intelligence on the market behaviour of undertakings and the challenges this entails for the effectiveness of the current rules of competition law. (link)

****

Anna Tzanaki (Lund University)

1. Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev 1 (1984): Revolutionary in imprinting that also when designing antitrust solutions (rules and remedies), there is no such thing as a free lunch; the ignition of the “error cost” approach. (link)

2. Steven Salop & David Scheffman, Raising Rivals’ Costs, 73 Amer. Econ. Rv. 267: A concrete framework to flesh out new ways of exclusionary anticompetitive conduct (non-price predation) and a counter-balancing response to the “transaction cost economics” frame arguing for efficiency motives underpinning unilateral business behaviour. (link)

3. Dennis W. Carlton, Revising the Horizontal Merger Guidelines, 6 J. Comp. L. & Econ. 619 (2010): While we take so much for granted when reviewing mergers and given the existing tools to analyse them, a leading (conservative) economist comes to challenge the “basics” and put certain principles on firm footing (choices of analytical frames, concepts, theories of harm); foundational reading for merger policy not only when recast but for a deeper understanding of what we (should) do and how. (link)

BonusRonald Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960): Although beyond the top 3 you requested and not strictly speaking on antitrust, this article is the best scholarly thing I have ever read, in its simplicity of exposition and its groundbreaking character; after reading this, the way I view things and the world changed forever. (link)

****

Nicolo Zingales (Leeds University)

1. Louis Kaplow, Why (Ever) Define Markets?, 124 Harv. L. Rev. 437 (2010): It challenges a crucial dogma of competition law. (link)

2. Adrian Künzler, Dilution Law, Vertical Agreements, and the Construction of Consumption, 37 Oxford J. Legal Stud. 75 (2017): It uses behavioural studies to show the subjectivity of value that is associated with brands, tracing a bigger role for antitrust in promoting intrabrand competition. (link)

3. Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Texas L. Rev. 1991 (2007): It identifies a problem that had been largely ignored, triggering a decade-long discussion about its limits, the related evidence and possible solutions. (link)

****

Nicolas Petit (University of Liège / Stanford)

1. Ward Bowman, Toward Less Monopoly, 101 U. of Pa. L. Rev. 577 (1953): Interesting character, law and economics made centrist, unfortunately, overshadowed by Harvard/Chicago polarization. (link)

2. Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev 1 (1984): Gigantic writer, law and economics made easy, huge impact factor. (link)

3. Pablo Ibáñez Colomo, Legal Tests in EU Competition Law: Taxonomy and Operation, JECL & Pract (2019): Civility made man, cutting edge doctrinal scholarship, leading the way for all aspiring European antitrust scholars. (link)

****

Dirk Auer (University of Liège/ICLE)

1. Friedrich A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519 (1945): A brilliant article that teaches us the importance of regulatory humility. Competition authorities must solve problems that involve highly dispersed knowledge (notably that which is conveyed through the price system). Given the complexity of this task, authorities and courts should show some deference to market outcomes. (link)

2. Ronald Coase, The Problem of Social Cost, 3 J. Law & Econ. 1 (1960)In this masterpiece (and much of his other work), Coase urges policymakers to avoid “blackboard economics”. Instead, he argues that sound policy should be based on the specific circumstances of each problem. In the case of externalities (i.e. almost all market failures), it is important to question whether (i) parties are internalizing these effects, and (ii) whether intervention can improve upon market outcomes. (link)

3. Harold Demsetz, Information and Efficiency: Another Viewpoint, 12 J.L. & Econ. 1 (1969): Demsetz urges policymakers to avoid the “nirvana fallacy”. Policy interventions should be based on divergences between real world outcomes and realistic alternative arrangements (and not some idealized benchmark). In other words, antitrust authorities should systematically question what a post-intervention world would look like. (link)

****

Aurélien Portuese (St Mary’s University)

1. Friedrich A. HayekCompetition as a Discovery Procedure, in New Studies in Philosophy. Politics, Economics and the History of Ideas (Routledge, 1978).: This article constitutes, in clear and plain economic language, a foundational contribution to the evolutionary perspective of competition, a perspective inherent to Austrian economics and useful for a better understanding of the limits of scientism in antitrust policy. More than an approach on dynamic efficiency whereby only innovation is taken into consideration, the evolutionary perspective vouched by Hayek emphasizes on the factual discovery reaped off thanks to the competitive process and on the importance to preserve such process. (link)

2. Richard Posner, Antitrust in The New Economy, 68 Antitrust L.J. 925 (2001): This article makes Posner one of the precursors of antitrust lawyers attempting to adapt antitrust enforcement to the new challenges brought about by the digital market actors and by the characteristics of the high-tech markets. Willing to propose adjustments to antitrust practice, Posner outlines the key characteristics of the new economy and scrutinizes on the difficulties of the then antitrust enforcement. This early analysis still proves highly useful today. (link)

3. Joshua D. Wright, Moving Beyond Naïve Foreclosure Analysis, 19 Geo. Mason L. Rev. 1163 (2012): In this article, Wright criticizes eloquently the current foreclosure analysis of antitrust authorities which he labels as “naïve” and thus proposes an alternative test based on the “but-for” test as an optimal legal standard. In high-tech markets where prices matter less and therefore exploitative abuses are less relevant, exclusionary abuses become the main criticism opposed to digital players. With a new and economically more relevant test for assessing exclusionary abuses, Wright provides for clear and useful guidance on assessing digital players for the years to come. (link)

****

Alfonso Lamadrid (Chillin’ Comp / Garrigues)

1. Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841 (1990): Possibly the best and most influential antitrust article ever written. Areeda’s command of the discipline and style never cease to amaze. (link)

2. Pablo Ibáñez Colomo – a piece on Article 102 TFEU currently undergoing peer review – title to be disclosed in a few weeks: I read it very recently to provide comments and was very impressed. The reasons: “It exemplifies how broad and deep academic knowledge and understanding of the case law can shed light on important practical issues that are unintelligible for those missing the big-picture view. It is also a model in lucid and clear reasoning”.

3. Pierre Larouche, The European Microsoft Case at the Crossroads of Competition Policy and Innovation, TILEC Discussion Paper No. 2008-021: A lucid and very well written article that I often think of as a model on how to comment on a specific case. The formalisations of the tests underpinning the Microsoft decision are particularly impressive. (link)

****

Francisco Marcos (IE Law School)

1. Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev 1 (1984): It’s probably the best piece ever written on the risks of misuses of competition law and the risks faced in its enforcement. (link)

2. Daniel A. Crane, Technocracy and Antitrust, 86 Tex. L. Rev. 1159 (2008): The underpinnings of competition law enforcement are blatantly depicted. (link)

3. William E. Kovacic, Lucky Trip? Perspectives From A Foreign Advisor On Competition Policy, Development and Technical Assistance, 3 Eur. Competition J. 319 (2007): It’s a rather brief article but an honest confession of the dangers and risks of “transplants” by the antitrust expert “par excellence”; some of the basic ideas there are further developed in his other writings based on his consulting experience abroad and especially in the several papers he later wrote, mainly with David A. Hynman, but also with James C. Cooper. (link)

****

Miguel Sousa Ferro (Lisbon University)

1. Gregory J. Werden, The History of Antitrust Market Delineation, 76 Marq. L. Rev. 123 (1993): For the impressive research behind it and for the decisive role it played in setting me on the right track for my PhD thesis. (link)

2. Koen Lenaerts, Some Thoughts on Evidence and Procedure in European Community Competition Law, 30 Fordham Int’l L.J. 1463 (2007): For the brilliant summary and incredible usefulness for the litigation of any case in EU Competition Law, but also for the sentimental value of the paper, in tribute to Judge Vesterdorf and his famous Opinion on this issue. (link)

3. Alberto Xavier, Subsídios para uma lei de defesa da concorrência, 138 Ciência e Técnica Fiscal 87 (1970): A paper published 13 years before a competition law was adopted in Portugal. Because sometimes a researcher can be well ahead of his/her time, and feel like a voice in the wilderness, but that’s no reason to stop making your voice heard.

****

Barry Rodger (University of Strathclyde)

1. Jason Rathod & Sandeep Vaheesan, The Arc and Architecture of Private Enforcement Regimes in the United States and Europe: A View Across the Atlantic, 14 U.N.H. L. Rev. 303 (2016): Excellent critique of the pro-business agenda in debates on competition law impact, in this case in relation to facilitating damages, and the significance of the ‘business victimhood mythology’: critical analysis of the role of economics and the Chicago school in antitrust analysis. (link)

2. John J. Flynn, Legal Reasoning, Antitrust Policy and the Social “Science” of Economics, 33 Antitrust Bull. 713 (1988): Critical analysis of the role of economics and the Chicago school in antitrust analysis. (link)

3. Eleanor M. Fox, The Battle for the Soul of Antitrust, 75 Calif. L. Rev. 917 (1987):  The fundamental issue in competition/antitrust law and clarifies that the goals are contestable and contested. (link)

****

Sandra Marco Colino (Chinese University of Hong Kong)

1. Peter C. Carstensen, The Competitive Dynamics of Distribution Restraints: The Efficiency Hypothesis versus the Rent-Seeking, Strategic Alternatives, 69 Antitrust L.J. 569 (2001): Prof. Carstensen taught me US antitrust at the University of Wisconsin during my PhD studies. This piece was a comprehensive, helpful introduction to the intricacies of resale price maintenance and its effects on competition. A commendable read for anyone with an interest in the topic, which covers the essential case law and questions some of the assumptions of US antitrust policy.

2. Eleanor M. Fox, The Battle for the Soul of Antitrust, 75 Calif. L. Rev. 917 (1987): It is difficult to come across a concise article that manages to perfectly encapsulate one of antitrust’s perpetual controversies. This piece manages to do just that. It is a classic and a must-read for those interested in the roots of the recent ‘hipster antitrust’ hype. (link)

3. Katalin J. Cseres & Joana Mendes, Consumers Access to EU Competition Law Procedures: Outer and Inner Limits, 51 Common Market L. Rev. 483 (2014): The authors explore the peculiarities of EU competition law and its enforcement system. In particular, they assess the importance of consumer well-being in EU competition policy, and how the European Commission and the national competition authorities may contribute to guaranteeing the necessary level of protection. Their meticulous research makes the paper highly relevant and worth spending a few hours on. (link)

****

Catalin Rusu (Radboud University)

1. Kamiel Mortelmans, Towards Convergence in the Application of the Rules on Free Movement and on Competition?, 38 Common Market L. Rev. 613 (2001): This article bridges two areas of law I am passionate about. In search of signs of convergence between competition law and internal market law, the article draws conclusions which may very well stand today, almost 20 years down the line. (link)

2. Katalin J. Cseres, The Controversies of the Consumer Welfare Standard, 3 Competition L. Rev. 121 (2007): Excellent piece on the concept of consumer welfare and the different angles from which one can view it. I recall going back quite often to this article during my PhD research years, looking for proper interpretations of the goals of competition law. (link)

3. Wouter Wils, Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement, 34 World Competition 3 (2011): I have always been intrigued by what drives competition authorities to act. And when they act, what are the boundaries that the material and procedural rules define for enforcing competition law? This is a very informative article which thoroughly discusses the concepts of discretion and prioritisation, and their place in competition policy development and competition law enforcement. (link)

****

Jasper Sluijs (Utrecht University)

1. Pietro Crocioni, Leveraging of market power in emerging markets: A review of cases, literature, and a suggested framework, 4 J. Comp. L. & Econ. 449 (2008): Completely overlooked article that everyone working on antitrust in tech markets should read. The author very calmly dissects all the rhetoric about type 1 and type 2 errors in antitrust enforcement, and demonstrates how these error costs can and should not be offset against each other. (link)

2. Fred McChesney, Talking ‘Bout My Antitrust Generation Competition for and in the Field of Competition Law, 52 Emory L.J. 1401 (2003): A very consequential article for me as a student wanting to understand the history antitrust law. Re-reading it now, I realize the pendulum has been swinging away from Fred’s generation again. (link)

3. Jonathan Baker, The Case for Antitrust Enforcement, 17 J. Econ. Persp. 27 (2003): Required reading in every antitrust law course. Why do we do this, to begin with? (link)

****

Richard Whish (King’s College)

1. Bill Kovacic, The Intellectual Dna Of Modern U.S. Competition Law For Dominant Firm Conduct: The Chicago/Harvard Double Helix, 2007 Colum. Bus. L. Rev. 1 (2007) (link)

2. Louis Kaplow, Why Ever Define Markets?, 124 Harv. L. Rev. 437 (2010) (link)

****

Mark Furse (Glasgow University)

1. Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841 (1990): This is, in American terms, a short article at just 13 pages. It came at a time when a relatively obscure ‘doctrine’ (and there is now doubt as to the validity of the doctrine) was about to assume a prominent position in EU competition law following state deregulation and privatisation. It is a beautifully clear, and lucid, analysis of an important principle which, if left unchecked, threatened to wreak chaos. Any work now dealing with the essential facilities doctrine rests at least in part on this piece. (link)

2. George Stigler, A theory of oligopoly, 72 J. Pol. Econ. 44 (1964): This is another short article, and is at the edge of law, but central to competition policy. It is significant that a piece which has been very significantly debunked remains central to debates as to anti-cartel enforcement strategy. (link)

3. Sandra Marco-Colino, The Antitrust F Word: Fairness Considerations in Competition Law, forthcoming Journal of Business Law (2018): There is a risk in placing something so recent on a list such as this, but simply for the line: ‘when it comes to the inclusion of non-economic aims in the substantive assessment of anticompetitive practices, all doctrinal hell breaks loose’ this piece is included here. (link)