Antitrust law professors’ favorite articles

Last year, I asked European professors of competition law to list their three favorite articles ever written in the field (they’re here). Today, I am delighted to be publishing the American counterpart. About 30 antitrust law professors have sent me their contribution–for which I am very grateful. Our antitrust family doesn’t agree on everything (to say the least), but one finds several points of agreement when it comes to listing the most fundamental literature. Enjoy!

Dr. Thibault Schrepel
@LeConcurrential

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A. Douglas Melamed (Stanford University)

1- Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs To Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

Created a new and enduring paradigm for understanding exclusionary conduct.

2- Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 Am. Econ. Rev. 18 (1968) [link]

Showed how trade-offs between efficiency benefits and market power costs can be conceptualized.

3- Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984) [link]

Although the analysis was flawed, this article put error-cost analysis at the center of antitrust law.

***

Andrew I. Gavil (Howard University)

1- William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 (1981) [link]

This is not so much a “favorite” of mine as an article I would note as extremely significant in the development of effects-based competition analysis. It greatly influenced the subsequent course of competition law by examining one of its most essential concepts: “market power.”

2- Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rival’s Costs to Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

Krattenmaker and Salop’s framing of the economics of exclusion has proved to be durable and the article helped to provide the intellectual foundation for a less doctrinaire approach to exclusionary conduct that remains foundational.

3- Jonathan B. Baker, Taking the Error Out of “Error Cost” Analysis: What’s Wrong With Antitrust’s Right, 80 Antitrust L.J. 1 (2015) [link]

This article is essential reading for today’s competition lawyers and scholars. It provides the basis for more critical thinking about how decision theory can be used, but also distorted through unsupportable and unqualified assumptions about how firms and markets perform.

***

Bruce H. Kobayashi (George Mason University)

1- Aaron Director & Edward Hirsch Levi, Law and the Future: Trade Regulation, 51 Nw. U. L. Rev. 281 (1956) [link]

Classic Antitrust/Law and Economics article.

2- Harold Demsetz, Barriers To Entry, 72 Am. Econ. Rev. 47 (1982) [link]

Brought needed clarity to a [still] confused area.

3- Nathan H. Miller and Matthew C. Weinberg, Understanding the Price Effects of the MillerCoors Joint Venture, 85 Econometrica 1763 (2017) [link]

Great example of modern antitrust economics methodology, this article combines prediction models with a retrospective analysis.

 ***

Christopher R. Leslie (University of California – Irvine)

1- Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

This is a great foundational article that explains how dominant firms may engage in inefficient, seemingly irrational, conduct in order to monopolize markets. It helped set the stage for post-Chicago scholarship based on a more nuanced and real-world understanding of economic behavior.

2- Jonathan B. Baker, Mavericks, Mergers and Exclusion: Proving Coordinated Competitive Effects Under the Antitrust Laws, 77 N.Y.U. L. Rev. 135 (2002) [link]

Numbers alone cannot tell the whole story about how markets operate. Baker’s article is excellent because it establishes why antitrust law should care about how real firms actually behave (and are likely to behave) and the implications that has for antitrust law.

3- Margaret C. Levenstein & Valerie Y. Suslow, What Determines Cartel Success?, 44 J. Econ. Lit. 43 (2006) [link]

Although deterring and punishing price-fixing cartels is the foundation (and least controversial part) of antitrust law, such conspiracies are inherently difficult to study because they are so secretive. Professors Levenstein and Suslow’s work exposes how cartels operate and how they can be long-lasting despite the incentives to cheat.

***

Christopher S. Yoo (University of Pennsylvania)

1- Fred S. McChesney, Be True to Your School: Chicago’s Contradictory Views of Antitrust and Regulation, in The Causes and Consequences of Antitrust: The Public-Choice Perspective 323 (F. McChesney & W. Shughart, II eds., 1995) [link]

This is a book chapter instead of an article, which may disqualify it, but if not, it points out that Chicago School scholars reliance on courts as vectors for doctrinal change is in tension with the other line of public-choice oriented Chicago School scholarship that is skeptical of any government institution acting purely in the public interest.

2- William H. Page, Areeda, Chicago, and Antitrust Injury: Economic Efficiency and Legal Process 41 Antitrust Bull. 909 (1996) [link]

This article is one of the first in a line of scholarship exploring how the changes in antitrust doctrine during the 1970s and 1980s was the product of the joint (and slightly different) contributions of the Chicago School and the new Harvard School.

3- Timothy J. Brennan, Do Easy Cases Make Bad Law? Antitrust Innovation or Missed Opportunities in U.S. v. Microsoft, 69 Geo. Wash. L. Rev. 1042 (2001) [link]

This article masterfully demonstrates the importance that the theory, evidence, and remedy underlying any enforcement action be logically consistent.

*** 

D. Daniel Sokol (University of Florida)

1- Steven C. Salop & David T. Scheffman, Raising Rivals’ Costs, 73 Am. Econ. Rev. 267 (1983) [link]

This paper transformed our thinking about vertical mergers.

2- Edward J. Green & Robert H.  Porter, Noncooperative Collusion under Imperfect Price Information, 52(1) Econometrica 84 (1984) [link]

Their model of how collusion worked is foundational to the study of cartels.

3- Louis Kaplow, Why (Ever) Define Markets?, 124 Harv. L. Rev. 437 (2010) [link]

Kaplow took on common wisdom and blew up our understanding of it.

***

Daniel F. Spulber (Northwestern University)

1- Friedrich A. Hayek, Competition as a Discovery Procedure, 5 Quarterly Journal of Austrian Economics, 179 (Marcellus S. Snow trans., 2002) in his: “New Studies in Philosophy, Politics, Economics and the History of Ideas.” (1968) [link]

This article points out that the traditional “perfect competition” paradigm is limited by the full information setting. Instead, Hayek suggests that we should “consider competition systematically as a procedure for discovering facts.”

2- Xavier Vives, Innovation and Competitive Pressure, 56(3) J. Ind. Econ. 419 (2008) [link]

This article connects competition with innovation by showing the effects of competitive pressures on incentives for invention and innovation. The article is very useful to researchers in many ways, not least for a general framework for modeling monopolistic competition and also for connecting innovation and competition.

3- Robert P. Merges, A Transactional View of Property Rights, 20 Berkeley Tech. L.J. 1477 (2005) [link]

This article combines insights from both “transaction cost” and “new property rights” economics. It helps to better understand the relationship between IP and market transaction.

Bonus #1: F. Scott Kieff, Property Rights and Property Rules for Commercializing Inventions, 85 Minn. L. Rev. 697 (2000) [link]

This article emphasizes that property rights not only protect inventors but go further by helping them to commercialize their inventions.

Bonus #2: Paul J. Heald, A Transaction Costs Theory of Patent Law, 66 Ohio St. L.J. 473 (2005) [link]

This article identifies ways that Intellectual Property saves transaction costs.

***

Douglas H. Ginsburg (George Mason University)

1- Benjamin Klein, Competitive Resale Price Maintenance in the Absence of Free Riding, 76 Antitrust L.J. 431 (2009) [link]

This article upended the conventional wisdom that RPM is pro-competitive primarily when used to avoid a free-rider problem.

2- Gregory Sidak, Is Patent Holdup a Hoax?, 3 Criterion J. Innov. 401 (2018) [link]

This article challenges those claiming that patent holdup is a widespread phenomenon to produce what should be readily available empirical evidence.

3- William W. Schwarzer, Techniques for Identifying and Narrowing Issues in Antitrust Cases, 51 Antitrust L.J. 223 (1982) [link]

Judge Schwarzer’s advice for the efficient structuring of antitrust litigation is still solid today.

*** 

Einer R. Elhauge (Harvard University)

1- Stephen C. Salop & David T. Scheffman, Raising Rivals’ Costs, 73 Am. Econ. Rev. 267 (1983) [link]

Created a rigorous framework for explaining some key anticompetitive effects of exclusionary conduct.

2- Donald F. Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962) [link]

A penetrating and insightful analysis of doctrines that do not treat oligopolistic price coordination or demand and acquiescence as agreements even though they clearly involve a meeting of the minds. Much ink has been spilled since, but it is amazing the extent to which his insights on those issues remain bracing and unimproved upon.

3- José Azar, Martin C. Schmalz & Isabel Tecu, Anticompetitive Effects of Common Ownership, 73 J. Fin. 1513 (2018) [link]

The paper revealed that the increasing diversification of institutional investors had produced enormous horizontal shareholdings across competitors that raised profound anticompetitive concerns, and then the paper confirmed those concerns in a rigorous econometric analysis of the airline industry.

*** 

Eleanor M. Fox (New York University)

1- Ariel Ezrachi, Sponge, 5 J. Antitrust Enforc. 49 (2017) [link]

This is a very important and charming essay which shows the limits to the claim that antitrust is and should be based purely on economics and that external social, political or moral objectives corrupt and undermine the law. Competition law is a sponge that absorbs a multiplicity of considerations and values. The article explains how and why facing up to this reality does not undermine the consistency or predictability of law, but rather can enhance it. A great contribution.

2- Thomas Krattenmaker & Steven Salop, Anticompetitive Exclusion: Raising Rivals’ Costs To Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

This is the most important early challenge to Chicago School assertions that exclusionary strategies are virtually always efficient and thus procompetitive. The theory retains huge explanatory power.

3- Frederic Jenny, Economic Resilience, Globalisation and Market Governance: Facing the COVID-19 test, 1(3) COVID Economics 1-9 (2020) [link]

While it may seem odd to select this paper as one of the three best ever, it is my choice. I choose it because it puts competition law into a proper economic context in times of a black swan. What to do in the face of an unanticipated event of high disruption when markets are not working normally? How do science, politics, and human rights relate to competition policy, and how should scientific methodology, the precautionary principle, and industrial policy apply?

***

Geoffrey A. Manne (International Center for Law & Economics)

 1- Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 Am. Econ. Rev. 777 (1972) [link]

Harold Demsetz, articles on information costs. One of the greatest canards in all of antitrust today is the assertion that Chicago School antitrust relies on a “perfect competition” model, offering up simplistic analyses that ignore complications introduced by more contemporary economics. The reality is that Chicago School scholars do nothing of the sort, and have themselves pioneered analyses taking account of imperfect competition. Among the greatest of these scholars was Harold Demsetz. Among many other contributions, Demsetz penned several important articles on the nature of firms in the face of information costs and the implications for competition policy (including, with Armen Alchian, the greatest of these: Production, Information Costs, and Economic Organization). Demsetz’s articles touching on the implications of information costs include: Harold Demsetz, Information and Efficiency: Another Viewpoint, 12 J. L. & ECON. 1 (1969); Armen A. Alchian & Harold Demsetz, Production, Information Costs, and Economic Organization, 62 AM. ECON. REV. 777 (1972); Harold Demsetz, Industry Structure, Market Rivalry, and Public Policy, 16 J. L. & ECON. 1 (1973); Harold Demsetz, Barriers to Entry, 72 AM. ECON. REV. 47 (1982); Harold Demsetz, How Many Cheers for Antitrust’s 100 Years?, 30 ECON. INQUIRY 207 (1992).

2- Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984) [link]

Frank Easterbrook, articles on error costs. Easterbrook has long been the greatest expositor of the economically informed, error-cost approach to antitrust. Everyone knows his The Limits of Antitrust article, and its renown is justly deserved. But really that article is part of a series of articles written by Easterbrook in the 1980s that set forth the error-cost framework with which Easterbrook and the Chicago School more generally are associated, identify a number of sensible “filters” for antitrust adjudication in various contexts, and defend the approach from criticisms. Thus, it is insufficient to answer this question with “The Limits of Antitrust”; instead, an adequate answer requires reference to the entire series of articles: Frank H. Easterbrook, Predatory Strategies and Counter-strategies, 48 U. CHI. L. REV. 263 (1981); Frank H. Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L.J. 135 (1984); Frank H. Easterbrook, The Limits of Antitrust, 63 TEX. L. REV. 1 (1984); Frank H. Easterbrook, Workable Antitrust Policy, 84 MICH. L. REV. 1696 (1986); Frank H. Easterbrook, On Identifying Exclusionary Conduct, 61 NOTRE DAME L. REV. 972 (1986); Frank H. Easterbrook, Allocating Antitrust Decisionmaking Tasks, 76 GEO. L.J. 305 (1987).

3- David J. Teece, Profiting From Technological Innovation: Implications for Integration, Collaboration, Licensing and Public Policy, 15 Res. Pol’y 285 (1986) [link]

David Teece, articles on dynamic competition. Beginning with the seminal Profiting From Technological Innovation: Implications for Integration, Collaboration, Licensing and Public Policy, no scholar has done more than David Teece to illuminate the ways in which innovation and competition among innovating firms undermines the traditional, usually static theories of competition that predominate in antitrust. It is one of the greatest failings of antitrust law and antitrust economics that they have not done more to incorporate Teece’s enormous intellectual contribution, and to recognize the limitations of accepted approaches in dynamic settings. Teece has been incredibly prolific in this vein. Among his most important works are: David J. Teece, Profiting From Technological Innovation: Implications for Integration, Collaboration, Licensing and Public Policy, 15 RES. POL’Y 285 (1986); Thomas M. Jorde & David J. Teece, Competing Through Innovation: Implications for Market Definition, 64 CHI.-KENT L. REV. 741 (1988); Thomas M. Jorde & David J. Teece, Antitrust Policy and Innovation: Taking Account of Performance Competition and Competitor Cooperation, 147 J. INST’L & THEORETICAL ECON. 118 (1991); Thomas M. Jorde & David J. Teece, Rule of Reason Analysis of Horizontal Arrangements: Agreements Designed to Advance Innovation and Commercialize Technology, 61 ANTITRUST L.J. 579 (1993); David Teece & Gary Pisano, The Dynamic Capabilities of Firms, 3 INDUS. & CORP. CHANGE 537 (1994); David J. Teece, Gary Pisano & Amy Shuen, Dynamic Capabilities and Strategic Management, 18 STRATEGIC MGMT. J. 509 (1997); David J. Teece & Mary Coleman, The Meaning of Monopoly: Antitrust Analysis in High-Technology Industries, 43 ANTITRUST BULL. 801 (1998); J. Gregory Sidak & David J. Teece, Dynamic Competition in Antitrust Law, 5 J. COMPETITION L. & ECON. 581 (2009); David J. Teece, Technological Innovation and the Theory of the Firm: The Role of Enterprise-Level Knowledge, Complementarities, and (Dynamic) Capabilities, in 1 HANDBOOK OF THE ECONOMICS OF INNOVATION 679 (Bronwyn H. Hall & Nathan Rosenberg eds., 2010).

Bonus: Jonathan M. Barnett, The Host’s Dilemma: Strategic Forfeiture in Platform Markets for Informational Goods, 124 Harv. L. Rev. 1861 (2011) [link]

Barnett’s article is singularly important for understanding the structure of today’s digital platforms and the paucity of most of the claims that are made for imposing antitrust liability on such firms. Especially as debates over Apple’s App Store, Google’s Android OS, and Amazon’s Marketplace are heating up, the insights contained in Barnett’s article on the trade-off faced by platforms between inducing user adoption and preserving cost recovery should be required reading.

***

John M. Newman (University of Miami)

1- Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2016) [link]

Proponents of the antitrust status quo often point to its “coherence” as its chief virtue. Rebecca’s article brilliantly, carefully walks the reader through one reason why the current paradigm is not as coherent as some claim.

2- Jonathan B. Baker, Taking the Error Out of ‘Error Cost’ Analysis: What’s Wrong with Antitrust’s Right, 80 Antitrust L.J. 1 (2015) [link]

Here, Jon is at his typical best, cataloguing a number of flaws and inaccuracies that are not inherent to the error-cost framework itself, but were slipped in alongside it by early advocates. After reading this article, it’s hard to avoid concluding that the influential error-cost framework has served mainly as a Trojan Horse for anti-enforcement ideology.

3- Einer Elhauge, Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, 123(2) Harv. L. Rev. 397 (2009) [link]

This article systematically dismantles one of the Chicago School’s most sacred cows. If you’ve ever heard the old story of the nuts-and-bolts (or left-shoe-right-shoe) monopolist, you need to read this article.

***

John M. Yun (George Mason University)

1- Ronald Coase The Nature of the Firm, 4 Economica 386 (1937) [link]

This classic from Coase often takes second fiddle to his masterpiece, The Problem of Social Cost; yet, this paper is essential to understand the economics of vertical integration, controls, and mergers. With this research, Coase launched an entire body of economic literature that examines the bounds of a firm and why firms choose “in house” production over contracting with the market. Coase’s unique insights still help us navigate this question today.

2- Carl Shapiro, Mergers with Differentiated Products, 10 Antitrust 23 (1995) [link]

In a very straightforward and clear manner, Shapiro models horizontal mergers in a differentiated products setting. Shapiro’s influence on how antitrust practitioners and agencies consider unilateral effects for horizontal mergers has been immense. Specifically, this article offers a particularly clear exposition on the importance of diversion ratios to that assessment.

3- S.J. Liebowitz & Stephen E. Margolis, Network Externality: An Uncommon Tragedy, 8 J. Econ. Perspect. 133 (1994) [link]

This paper offers an overview of the important research of Liebowitz & Margolis, who offered a counterpoint to the dire predictions of market failures due to network effects. Given that the study of network effects is a forerunner of the economics of multisided platforms, it is still as relevant today as it was 25 years ago.

***

Jonathan B. Baker (American University Washington)

1- Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

This influential article sets forth the economic logic that underlies antitrust law’s objection to anticompetitive exclusionary conduct, and employs that logic to synthesize in a clear and consistent way the wide range of legal rules addressing exclusion. It laid the intellectual groundwork for the revival of U.S. antitrust law’s concern with exclusionary conduct.

2- William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the Sherman Act as a Tool for Deconcentration, 74 Iowa L. Rev. 1105 (1989) [link]

This history of the unsuccessful 1970s effort to deconcentrate the U.S. economy accomplishes a great deal: it describes the intellectual currents behind the rise of structural era antitrust and its displacement by the Chicago school; it presciently identifies conditions under which deconcentration would be expected to reemerge as a significant policy concern, as is happening today; and it explores how the design of antitrust institutions affects the ability of the enforcement agencies to successfully implement a deconcentration program through litigation under the antitrust statutes.

3- Robert Pitofsky, The Political Content of Antitrust, 127 U. Penn. L. Rev. 4 (1979) [link]

This article was written when the U.S. Supreme Court, under the influence of the Chicago school, had begun to reframe antitrust to focus solely on economic concerns. It pushes back by showing that antitrust law serves two important non-economic policy goals—protecting democracy and protecting the opportunity of firms to compete—while also explaining that the pursuit of these goals is tempered by the recognition that they are secondary to economic concerns, and that they are best promoted through the construction of antitrust rules rather than taken into account in deciding individual cases.

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Joshua D. Wright (George Mason University)

1- Frank Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev.1 (1984) [link]

This is the seminal article in the error cost approach to antitrust, i.e. harnessing the insights of decision theory to structure legal rules, burdens, and institutions to maximize welfare.

2- Ben Klein & Kevin Murphy, Vertical Restraints and Contract Enforcement Mechanisms, 31 J.L. & Econ. 265 (1988) [link]

A revolution in our understanding of the economics of vertical restraints that relies on a prevalent incentive conflict between manufacturers and distributors and expands the prior understanding of vertical restraints, which had really been limited to classic-dealer free riding. It is a central paper in understanding how contract terms can align incentives and facilitate contract enforcement.

3- Harold Demsetz, Why Regulate Utilities?, 11 J.L. & Econ. 65 (1968) [link]

A seminal contribution that forced economists and antitrust regulators to think more deeply about the difference between market concentration and competition. Provided the foundation for the new economic learning that gave economists, regulators, and courts a more sophisticated understanding of the relationship between market structure, competition, and competitive outcomes.

***

Lawrence J. White (New York University)

1- Oliver Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58(1) Am. Econ. Rev. 18 (1968) [link]

This article has been highly influential in the modern thinking about the antitrust issues that surround mergers.

2- Steven Salop & David Scheffman, Raising Rivals’ Costs, 73(2) Am. Econ. Rev. 267 (1983) [link]

This article has been highly influential in shaping modern thinking about non-price predatory behavior.

3- George Stocking & Willard Mueller, The Cellophane Case and the New Competition, 45(1) Am. Econ. Rev. 29 (1955) [link]

This article clearly explained what has come to be known as “The Cellophane Fallacy”.

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Mark A. Lemley (Stanford University)

1- Suresh Naidu, Eric Posner & E. Glen Weyl, Antitrust Remedies for Labor Market Power, 132 Harv. L. Rev. 537 (2018) [link]

This theory has reintroduced a problem antitrust hasn’t thought about for decades and updated the problem of labor monopsony for the modern world.

2- Christopher Leslie, Cutting Through Tying Theory With Occam’s Razor, 78 Tul. L. Rev. 727 (2004) [link]

Antitrust has struggled for a century to explain, justify, and classify tying arrangements. Christopher’s article offers a fundamentally new and almost certainly correct explanation for many of them.

3- Aaron Edlin, Do Guaranteed Low-price Policies Guarantee High Prices?, 111(2) Harv. L. Rev. 528 (1997) [link]

This paper upended conventional wisdom and has changed the way the law treats MFN clauses.

Bonus: Louis Kaplow, Why (Ever) Define Markets?, 124 Harv. L. Rev. 437 (2010) [link]: Antitrust has been based on market definition since the beginning. Kaplow explains why that makes no sense, and offers a more functional way to approach market power.

 ***

Mark R. Patterson (Fordham University)

1- Phillip Nelson, Information and Consumer Behavior, 78 J. of Pol. Econ. 311 (1970) [link], and Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J. of Law & Econ. (1973) [link]

These are not antitrust papers per se, but antitrust still has not come to terms with information issues, and these papers are arguably more antitrust-y than the work of economists like Stigler, Arrow, Akerlof, and Spence.

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

Why indeed not move on from the most factually problematic, even if conceptually sensible, aspect of antitrust analysis? In some respects, Kaplow’s approach was anticipated by Steven Salop’s The First Principles Approach to Antitrust, Kodak, and Antitrust at the Millennium, 68 Antitrust L.J. 187 (2000).

3- John M. Newman, Anticompetitive Product Design in the New Economy, 39 Fla. St. U. L. Rev. 681 (2012) [link]

I cite this paper not only for its own insights but also as an example of the increasing number of papers, like those by Damien Geradin and Dimitrios Katsifis, that are delving into the mechanisms of modern markets.

***

Michael A. Carrier (Rutgers University)

1- Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L.J. 209 (1986) [link]

Offered a framework for evaluating exclusion claims by introducing the influential “raising rivals’ costs” theory.

2- Jonathan Baker, The Case for Antitrust Enforcement, 17 J. Econ. Persp. 27 (2003) [link]

Made a strong case for antitrust by relying on experiments providing evidence of reduced competition and increased price in times of weak/nonexistent enforcement.

3- Richard Posner, Antitrust in The New Economy, 68 Antitrust L.J. 925 (2001) [link]

One of several articles at the turn of the century asking whether antitrust could apply to the “new economy”; contended that it could while suggesting institutional adjustments.

***

Ramsi Woodcock (The University of Kentucky)

 1- Elizabeth Mensch & Alan Freeman, Efficiency and Image: Advertising as an Antitrust Issue, 1990 Duke L.J. 321 (1990) [link]

This is in many ways the ideal type of a great law review article for me. It’s compositionally unusual: plotted like a story, filled with wry wit and social commentary. At the same time, it’s chock full of economic theory, intellectual history, and legal analysis. And it’s got fantastic flow; so good you hardly notice that . . . it doesn’t actually have an introduction! A virtuoso performance that deserves to be much better known than it actually is. Shows you what law journal writing could be.

2- F.M. Scherer, Economies of Scale and Industrial Concentration, in Industrial Concentration: The New Learning 16 (Harvey J. Goldschmid et al. eds., 1974) [link]

Remains the greatest intellectual effort of the heroic era of antitrust in the United States: an attempt to use economics and engineering to identify the minimum efficient scale of firms in each of a number of the most important industries in the country, to the end of aiding regulators in deconcentrating the entire economy. No one has since attempted anything close in terms of ambition. Redolent of the care and interdisciplinarity that make Scherer one of antitrust’s greatest scholars.

3- Oliver E. Williamson, Dominant Firms and the Monopoly Problem: Market Failure Considerations, 85 Harv. L. Rev. 1512 (1972) [link]

Although not in the same league as the first two, this article succinctly captures the shortcomings of the law of monopolization; I find myself referring back to it constantly.

***

Richard J. Gilbert (Berkeley University)

1- Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85(6) Harv. L. Rev 1089 (1972) [link]

Essential primer about property rights vs liability rules for regulating many important issues.

2- Louis Kaplow, The Patent-Antitrust Intersection: A Reappraisal, 97 Harv. L. Rev. 1813 (1984) [link]

Interesting way to think about antitrust enforcement for intellectual property rights.

3- Robert P. Merges & Richard R. Nelson, On the Complex Economics of Patent Scope, 90 Colum. L. Rev. 839 (1990) [link]

Excellent exposition of problems with strong patent rights.

***

Richard S. Markovits (The University of Texas at Austin)

1- Richard S. Markovits, Predicting the Competitive Impact of Horizontal Mergers in a Monopolistically Competitive World: A Non-Market-Oriented Proposal and Critique of the Market Definition-Market Share-Market Concentration Approach, 56 Tex. L. Rev. 587 (1978) [link]            

This article is important for three reasons; (1) it explains in broad terms why market definitions are inevitably arbitrary and why, therefore, one must develop and use non-market-oriented protocols for predicting the competitive impact of conduct or determining whether conduct is motivated by specific anticompetitive intent; (2) it recognizes that the competitive impact of conduct depends on its impact on the intensity not only of price competition but also of quality-or-variety-increasing-investment (QV-investment) competition (the competition through which firms compete away their supernormal profits by introducing additional product variants, opening additional distributive outlets, or creating additional capacity or inventory); and (3) it develops novel accounts of the non-market-aggregated determinants of a horizontal merger or acquisition’s impact on the intensity respectively of price competition and QV-investment competition.

2- Richard S. Markovits, On the Inevitable Arbitrariness of Market Definitions, 2002 Antitrust Bull. 571 (2002) [link]

This article is important because it explains in great detail why both definitions of classical economic markets and definitions of antitrust markets are inevitably arbitrary not just at their peripheries but comprehensively.

3- Richard S. Markovits, The General Theory of Second Best and Economic-Efficiency Analysis: The Theory, Its Negative Corollaries, the Appropriate Response to It, and a Coda on the Economic Efficiency of Reducing Poverty and/or Income/Wealth Inequality, 49 Akron L. Rev. 437 (2016) [link]

This article is important for three reasons: (1) it explains why the conventional protocol for predicting or post-dicting the economic efficiency of antitrust policy (or any other type of policy or non-government choice) is indefensible (namely, because it ignores The General Theory of Second Best, many of the categories of economic inefficiency whose magnitudes the choice in question effects, and the allocative cost of implementing any economic efficiency-analysis protocol); (2) it outlines a protocol for economic-efficiency prediction or post-diction that is ex-ante economically efficient; and (3) it illustrates the fact that this “correct” protocol will yield very different economic-efficiency conclusions from those that the conventional approach generates.

***

Robert H. Lande (University of Baltimore)

1- Steven C. Salop & David T. Scheffman, Raising Rivals’ Costs, 73 Amer. Econ. Rev. 267 (1983) [link]

Together with related work by Prof. Salop and others, this article formulates a comprehensive and easy to understand framework that helps enforcers and decisionmakers distinguish exclusionary behavior from benign or procompetitive behavior. It’s a remarkably creative and useful distillation of common sense that, with the advantage of hindsight, is obviously correct.

2- Oliver Williamson, Economies as An Antitrust Offense: The Welfare Trade-Offs, 58 Am. Econ. Rev. 18 (1968) [link]

This article forms much of the basis of modern merger policy. It rigorously and clearly formulates the economic basis for assessing whether a merger is anticompetitive. By identifying and combining the (arguably) appropriate assumptions and tradeoffs, the analysis fosters constructive discussion and analysis about merger policy from most parts of the political spectrum.

3- Derek Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv L. Rev. 226 (1960) [link]

This article embodies the difference between being wise and being smart. It’s easy to list a huge number of factors relevant to the welfare analysis of any merger. This article, however, demonstrates the wisdom behind Antitrust’s never ending quest to go beyond comprehensive but intractable rule of reason analysis to seek and implement relatively simple presumptions or per se rules. The article’s clear explanation of how only by engaging in this quest antitrust can become more predictable, enforceable and useful, is every bit as important today as it was 60 years ago.

Bonus: Robert Bork, Legislative Intent and the Policy of The Sherman Act, 9 J. L & Econ. 7 (1966) [link]

In most ways, this is my all-time least favorite article because it horribly distorts legislative intent in its result-oriented attempt to prove that the sole goal of the Sherman Act is to improve economic efficiency. But it must also be conceded to be one of the most brilliant articles because it succeeded in fooling so much of the Antitrust world. It’s also one of my favorite articles because a reader who analyzes it carefully will see that much of the foundation of the Chicago school of antitrust is quicksand.

***

Spencer Waller (Loyola University Chicago)

1- Jonathan Baker, Competition Policy as a Political Bargain, 73 Antitrust L.J. 483 (2006) [link]

2- Eleanor Fox, The Battle for the Soul of Antitrust, 75 Calif. L. Rev. 917 (1987) [link]

3- Robert Lande, Wealth Transfers as the Original and Primary Concern of Antitrust, 34 Hastings L.J. 65 (1982) [link]

Bonus: Robert Pitofsky, Political Content of Antitrust, 127 U. Pa. L. Rev. 1051 (1979) [link]

***

Steven C. Salop (Georgetown University)

1- Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1 (1984) [link]

A seminal contribution to the Chicago-School, non-interventionist canon.

2- George L. Priest, The Limits of Antitrust and the Chicago School Tradition, 6 J. Comp. L. & Econ. 1 (2010) [link]

Points out the important role of political preferences, as opposed to economic analysis, as a driving force to Chicago-antitrust. 

3- Jonathan B. Baker, Taking the Error Out of ‘Error Cost’ Analysis: What’s Wrong with Antitrust’s Right, 80 Antitrust L.J. 1 (2016) [link]

Provides the post-Chicago economics response to the rationales for the non-interventionist approach suggested by Bork and Easterbrook.

*** 

William H. Page (University of Florida)

1- William M. Landes & Richard A. Posner, Market Power in Antitrust Cases, 94 Harv. L. Rev. 937 (1981) [link]

2- Phillip Areeda and Donald F. Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 Harv. L. Rev. 697 (1975) [link]

3- Lester G. Telser, Why Should Manufacturers Want Fair Trade?, 3 J. L. & Econ. 86 (1960) [link]

***

William E. Kovacic (George Washington University)

1- Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition,71 Antitrust L.J. 1 (2004) [link]

This is the best paper ever written on the creation of the US Federal Trade Commission. Winerman uses a large collection of seldom-tapped original sources to examine the launch of this formative experiment in economic regulation and illuminate the challenges it would face in executing its ambitious mandate. Winerman’s multidisciplinary perspective — economics, history, law, and political science — is masterful.

2- Stephen Calkins, Summary Judgment, Motions to Dismiss, and Other Examples of Equilibrating Tendencies in the Antitrust System, 74 Geo. L. J. 1065 (1986) [link]

This article is a brilliant study of the functioning of an antitrust system (or any body of regulatory law) and explanation of how courts use the discretion entrusted to them to counterbalance what they perceive to be imperfections in the enforcement mechanism established by the legislature. To read this paper is to understand some of the most important dynamics that have shaped the evolution of US antitrust doctrine over the past half-century and to appreciate the importance of interdependencies among different system elements.

3- Thomas Krattenmaker, Per Se Violations in Antitrust Law: Confusing Offenses with Defenses, 77 Geo. L. J. 165 (1989) [link]

More than any other paper, Krattenmaker clarifies what per se prohibitions in US antitrust law actually do: The defendant in a US antitrust case (even a cartel prosecution) always gets to offer defenses to avoid summary condemnation. The article explains how the courts since 1890 have defined a set of defenses” that are categorically non-cognizable.

***

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