As in previous years (see 2015, 2016, and 2017), here are the most downloaded antitrust and competition law articles published on SSRN during 2018.
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1. The Blockchain Antitrust Paradox
by Thibault Schrepel
Georgetown Law Technology Review (2.741 downloads)
The very nature of blockchain raises fundamental questions for competition law. With this paper, our first ambition is to contribute to the literature by portraying the challenges on unilateral practices. Because blockchain is decentralized, anonymous and immutable, multiple questions do in fact arise regarding the detection of practices as well as the identification of perpetrators. We show that some practices are de facto more likely to be implemented, but they are yet to be identifiable. This article further aims to contribute to the literature by questioning our current rules and how the law can fit into the technology. And indeed, for technical reasons, some remedies cannot be used to prevent the development of anti-competitive practices implemented through the blockchain. We will address what should be the focus for competition authorities and regulators in this regard. Meanwhile, they must observe a strict regulatory humility so as not to prevent the emergence of blockchain and to use it as an excuse for regulating all the practices that are perpetrated on it despite having a real competitive effect — what we call the “blockchain excuse.”
But in the end, one question arises as follows: is blockchain the death of antitrust law? Should it be? Answering them today is not easy as blockchain is still prone to drastic evolution, but some initial answers are to be provided nonetheless. In order to do so, this paper proceeds in three parts. The first details how unilateral practices can be implemented on blockchain and further establish a risk map. The second part focuses on the challenges for enforcers and presents a new theory entitled “regulatory infiltration.” The last part questions the legitimacy of competition law in the face of this technology – the “blockchain antitrust paradox” – and the need to decentralize competition authorities.
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2. Antitrust Remedies for Labor Market Power
by Suresh Naidu, Eric A. Posner & E. Glen Weyl
in Harvard Law Review (2.634 downloads)
Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets like in product markets, the government does little to address the labor market problem and private litigation has been rare and mostly unsuccessful. The reason is that the analytic methods for evaluating labor market power in antitrust contexts are primitive, far less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, we propose methods for judging the effects of mergers on labor markets. We also extend our approach to other forms of anticompetitive practices undertaken by employers against workers. We highlight some arguments and evidence indicating that market power may be even more important in labor than in product markets.
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3. Antitrust and Costless Verification: An Optimistic and a Pessimistic View of the Implications of Blockchain Technology
by Christian Catalini & Catherine E. Tucker
MIT Sloan Research Paper No. 5523-18 (1.404 downloads)
Blockchain technology allows a network of individuals, institutions or devices to coordinate economic activity on a global scale (‘internet-level consensus’) without assigning the same degree of control to the intermediary operating and facilitating transactions in the marketplace. This allows for the creation of new types of decentralized digital platforms where the benefits of network effects are separated from the traditional costs they entail in terms of market power. We discuss both the opportunities and challenges the technology involves from an antitrust perspective, and in particular how it can be used to facilitate the creation of extremely efficient and competitive digital markets, as well as to facilitate collusion and make antitrust enforcement more difficult.
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4. Antitrust in the Internet Era: The Legacy of United States v. A&P
by Timothy J. Muris & Jonathan E. Nuechterlein
in George Mason Law & Economics Research Paper Series (1.082 downloads)
Critics from both the right and the left claim that modern antitrust doctrine, rooted in consumer welfare, is inadequate to handle the challenges of the twenty-first century economy. They express nostalgia for 1960s antitrust, when the field had no clear objectives and cases were decided on impressionistic notions of “fairness” and good corporate citizenship. This paper exposes the intellectual void at the heart of this new populist movement and begins by following Justice Holmes’ tenet that “a page of history is worth a volume of logic.” More than 80 years ago, the A&P grocery chain was a vertically integrated retailer that made use of unprecedented scale and innovation to offer consumers a wider range of products than the competition and at lower prices. Yet A&P’s very success, which came at the expense of smaller and less efficient competitors, triggered a backlash: first from Congress, in the form of the Robinson-Patman Act, and then from the Justice Department, in the form of successful prosecution under the Sherman Act.
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5. Antitrust Conversations with Nobel Laureates
by Thibault Schrepel
in Revue Concurrentialiste (990 downloads)
This publication features conversations on antitrust law with Nobel Prize laureates in Economics and aim at understanding how useful their work could be to antitrust law. Given the rigor and importance of their body of work, antitrust scholars, lawyers, officials, and anyone who’s interested in antitrust would benefit from studying them even though their writings do not deal directly with antitrust-related issues. These conversations point out which articles should be read first, what they contain and to what extent they can improve antitrust law. They also offer ideas for papers to be developed in dedicated studies. These experts offer nuanced, useful, and sometimes surprising insights on the evolving interface between antitrust law and economics. This is an exclusive window into the thoughts of Nobel Laureates, their current projects, and how their work can inform the antitrust enterprise.
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6. Whatever Did Happen to the Antitrust Movement?
by Herbert Hovenkamp
in Notre Dame Law Review (961 downloads)
This piece sets out to do three things. First it describes so-called “movement” antitrust, focusing on recent writings disparaging consumer welfare in favor of alternatives that seek to protect small business welfare, redistribute wealth, or pursue other goals. Then it describes the fundamental contours of technical antitrust, whose stated goal is the protection of high output and low prices, and explains why this approach is much more consistent with concerns about economic rationality, due process, administrability, and federalism. Finally, it examines several areas where technical antitrust rules could be improved, focusing mainly on merger policy and one particularly problematic area, which is antitrust’s historical failure to deal adequately with monopsony power in labor markets.
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7. EU Competition Law Goals and the Digital Economy
by Ariel Ezrachi
Oxford Legal Studies Research Paper Series (941 downloads)
New competition dynamics in the digital economy raise questions as to the normative scope of competition enforcement. The question – ‘Is this a competition problem?’ has become common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. This paper seeks to outline the goals and values advanced by European Competition law, and their application to digital markets. The discussion then moves on to explore the tension between the multitude of goals and economic analysis. It further reflects on the different scope of US antitrust law and the limitations of convergence.
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8. The Future of Article 102 TFEU after Intel
by Pablo Ibáñez Colomo
in Journal of European Competition Law & Practice (863 downloads)
The Court judgment in Intel clarifies two crucial aspects relating to the interpretation of Article 102 TFEU. As a matter of principle, the provision is only concerned with the exclusion of rivals that are as efficient as the dominant firm. Dominant firms can adduce evidence rebutting the presumption that exclusive dealing and loyalty rebates are capable of having anticompetitive effects. It is possible to infer from the judgment an analytical framework applying to all abusive practices.
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9. New Evidence, Proofs, and Legal Theories on Horizontal Shareholding
by Einer Elhauge
Harvard Law School Working Papers Series (790 downloads)
This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment.
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10. Don’t Panic: A Guide to Claims of Increasing Concentration
by Gregory J. Werden & Luke M. Froeb
in Antitrust Magazine (738 downloads)
The Obama Administration’s Council of Economic Advisers expressed concern that competition was threatened by increasing industry concentration. Academics, commentators, and journalists have joined the chorus. But none demonstrated increasing concentration of meaningful markets, as are used in antitrust to assess the impact of mergers and trade restraints. The claims of increasing concentration are based on data that are far too aggregated. Market concentration can remain the same or decline despite increasing concentration for broad aggregates. Mergers have not increased concentration in airline and banking markets. Moreover, where market concentration has increased, that does not demonstrate a failure of antitrust law or its enforcement; market concentration naturally increases when the most innovative and efficient firms grow.
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