I asked European academics (and friends) specializing in competition law to send me the list of their three favourite articles ever written in the field, and to explain their choice. It’s nothing easy (at all), but you’ll find their contributions right below.
Thibault Schrepel
@ProfSchrepel
****
Thibault Schrepel (VU Amsterdam/Stanford University)
1. Friedrich A. Hayek, The Pretence of Knowledge, Nobel Memorial Lecture (Dec. 11, 1974), in 79 Am. Econ. Rev. 3 (1989): In his Nobel lecture, Hayek explains that our human brains are too limited to grasp complex issues. He makes the point that complexity science should be front and center in all our analyses and that we won’t be able to “solve” all questions in social science. It’s my favorite scientific writing, and it was not even conceptualized as such—but as a speech. (link)
2. Lawrence Lessig, Chapter VII: What Things Regulate, in Code: Version 2.0 (Basic Books, 2006): Code is not antitrust-related, and it’s a book, not an article. Yes, but Code offers the most insights about the digital world in which we live. It shows what regulates, and how to regulate. It’s the best legal book I’ve ever read, the kind you cannot forget. (link)
3. Charles Darwin, Chapter IV: Natural Selection, in The Origin of Species (John Murray, 1859): Here again, I apologize for not sticking to my own rules. That said, I have no choice but to mention Darwin, the father of evolutionary theory. How can one understand competition (and the impact of human intervention on species—firms—and varieties—technology) without Darwin in mind? (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, Indispensability and Abuse of Dominance: From Commercial Solvents to Slovak Telekom and Google Shopping, 10(9) JECL & Pract. 532 (2019): 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. (link)
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)
****
Andreas Stephan (UEA Law School)
1. Gary Becker, Crime and Punishment: An Economic Approach, 16(2) J. Polit. Econ. 169 (1968): This seminal piece is not directly about antitrust; it has influenced policymaking and academic debate across a whole range of disciplines, but is worth identifying due to the sheer volume of antitrust writing it inspired and was applied to. Its main thesis is logical and captivating, but its legacy is to lend theoretical support to the highly questionable strategy of deterring of cartels predominantly through ever-increasing levels of corporate fines. Jeremy Bentham’s The Theory of Legislation (Routledge: London 1931) deserves an honorary mention here. (link)
2. Margaret C. Levenstein & Valerie Y. Suslow, What Determines Cartel Success?, 44 J. Econ. Lit. 43 (2006): A paper that marries economic theory on cartels with what we actually know about how they form, operate and fail, based on the decisions of the European Commission. Much of this work was thanks to the days when published EU cartel decisions were long, detailed and full of great anecdotes. Sadly the direction of travel has been for shorter decisions (due to the use of settlements) and significantly greater levels of redacted information. Boo! (link)
3. Christopher Harding, Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Business Cartels, 14 Crit. Criminol. 181 (2006): This among other work by Harding provides an important criminological discussion of cartels. His work is an important reminder that there are some very valuable perspectives outside the bubble of mainstream Competition Law and IO, and that it is healthy for our beliefs and assumptions to be challenged on a regular basis. (link)
****
Andriani Kalintiri (King’s College)
1. Pablo Ibanez Colomo, Legal Tests in EU Competition Law: Taxonomy and Operation, 10(7) JECL & Pract. 424 (2019): Few scholars can pride themselves on possessing Pablo’s extraordinary command of the EU Courts’ case law and unparalleled ability to dissect it, identify patterns and gaps and extract valuable lessons from it. This is evident in all his articles and other work, but at a time where all eyes are on the future of competition law doctrine, this excellent piece provides the best foundation for understanding its present and past on this side of the Atlantic. (link)
2. Ioannis Lianos, Polycentric Competition Law, 71 Current Legal Problems 161 (2018): In line with contemporary calls for a paradigm shift in competition law, this article exposes the shortcomings of what the author laments as the prevailing ‘monocentric’ conception of the discipline and sows the seeds of an alternative theoretical perspective grounded in polycentricity. This is a deeply thought-provoking piece as is other recent and ongoing work by Ioannis which further advances and fleshes out his polycentric vision of competition law. (link)
3. Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2016): This insightful piece eloquently narrates and forcefully debunks what the author labels the ‘commensurability myth’ in antitrust law, drawing on US jurisprudence. Without calling for radical reform, this work still makes a fundamental point that is not always sufficiently appreciated: that asking – and, most crucially, openly debating – the questions underlying a problem is oftentimes as important as getting the answer ‘right’, if not more. (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)
Bonus: Ronald 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)
****
Aurélien Portuese (St Mary’s University)
1. Friedrich August von Hayek, Competition as a Discovery Procedure, 1968, in: Rechtsordnung und Handelnsordnung (Manfred E. Streit, Ed.) 2003, translation of the German text by Marcellus S. Snow, 5 Quarterly Journal of Austrian Economics 9-23 (2002): 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)
****
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)
****
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)
****
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)
****
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)
****
Fabiana Di Porto (University of Salento)
1. Andrew P. McLean, A Financial Capitalism Perspective on Start-up Acquisitions, J. Competition Law Econ. (2020): for integrating business, financial market and corporate governance analyses into standard antitrust literature. (link)
2. Michal S. Gal & Oshrit Aviv, The Competitive Effects of the GDPR, 16 J. Competition Law Econ. 349 (2020): for uncovering some unintended negative effects of the GDPR on the circulation of data among EU market participants, which were gone unnoticed thus far. (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)
****
Giuseppe Colangelo (University of Basilicata)
1. Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev 1 (1984): a seminal work on the error-cost minimizing approach to antitrust intervention in markets. (link)
2. Benjamin Klein & Kevin Murphy, Vertical Restraints as Contract Enforcement Mechanisms, 31 J.L. & Econ. 265 (1988): an essential reading for the analysis of vertical contractual relationships and one of the most influential contributions to the economics of contracts. (link)
3. Richard Posner, Antitrust in the New Economy, 68 Antitrust L.J. 925 (2001): a useful reminder that antitrust doctrine is supple enough to take in stride the competitive issues presented by the “new” economy. (link)
****
Jan Broulík (Amsterdam University)
1. Jonathan B. Baker, Taking the Error Out of “Error Cost” Analysis: What’s Wrong With Antitrust’s Right, 80 Antitrust L.J. 1 (2015): endorsing the error-cost approach to the design of competition rules, Baker convincingly explains why the conservative mantra that false convictions are more costly than false acquittals is not always correct. (link)
2. Anne C. Witt, The Enforcement of Article 101 TFEU – What Has Happened to the Effects Analysis?, 55 Common Mkt. L. Rev. 417 (2018): Witt shows that if a certain category of anti-competitive practices can be proven unlawful only through fact-intensive inquiries, enforcers shift their efforts elsewhere. (link)
3. Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2016): Haw Allensworth debunks the persistent myth that balancing of pro- and anti-competitive effects does not entail difficult value judgments. (link)
****
Jasminka Pecotić Kaufman (University of Zagreb)
1. William E. Kovacic & Marianela Lopez-Galdos, Lifecycles of Competition Systems: Explaining Variation in the Implementation of New Regimes, 79 Law & Contemp. Probs. 85 (2016): This article is full of Kovacic wisdom: insightful, engaging, bottom line, practical and soul searching. (link)
2. Dina I. Waked, Antitrust Goals in Developing Countries: Policy Alternatives and Normative Choices, 38 Seattle U. L. Rev. 945 (2015): This paper asks the right questions; great discussion; relevant dataset. (link)
3. Giuliano Amato, Antitrust and the Bounds of Power: The Dilemma of Liberal Democracy in the History of the Market (Hart 1997): Not an article but a short book, lively and engaging, gives the EU and US perspective, opens your eyes to the issue of the relationship between private power, economic freedom and democracy. (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)
****
Magali Eben (University of Glasgow)
1. Amartya Sen, Markets and Freedoms: Achievements and Limitations of the Market Mechanism in Promoting Individual Freedoms, 45 OxFORD ECON. PAPERS 519 (1993) (link): Amartya Sen needs no introduction He is one of the most notable economic philosophers and received the Nobel Prize in 1998. His pieces are classics in their own right: anyone interested in the role of markets in society should read his work. My favourite piece by Sen is ‘Markets and Freedom’. In it, he conceptualizes different views of ‘freedom’: opportunity-freedom (and our real capability to achieve the things we value) and freedom in its process aspect (autonomy of individual choices and protection against interference by others). He evaluates the market mechanism’s ability and inability to contribute to these views of freedom. He discusses ‘freedom’ as a value more ancient and separate from welfare. It is a piece that has inspired myself, and many others, in their research on the purpose and limitations of the market and thus, of competition law.
2. Pinar Akman, Searching for the Long-Lost Soul of Article 82EC, 29 Oxford J. Legal Stud. 267 (2009) (link): Pinar Akman’s piece on Article 82 (now Article 102 TFEU) makes for great reading for anyone starting their exploration of abuse of dominance in the EU. Pinar examines the travaux préparatoires to wade into the long-lived debate on the objectives of competition law, and Article 102 TFEU particularly. She questions the common view that the provision is a product of ordoliberalism and seeks to re-establish efficiency as a historic goal of EU competition law. I have read the piece multiple times over the years, both when I started my Ph.D. (under Pinar Akman’s supervision) and several times since then. Every time I read it, I reconsider its conclusions, but it never fails to make me think. It is an impressive paper, underpinned by extensive research, and definitely a classic.
3. Louis Kaplow, On the Relevance of Market Power, 130 Harv. L. Rev. 1303 (2017) (link), in combination with Doug Melamed, Antitrust Law is Not That Complicated, 130 Harv. L. Rev. F. 163 (2017) (link): As a researcher primarily studying abuse of dominance and monopolization, I talk, write and teach about market power all the time. Yet the role and even meaning of the concept in EU competition law and US antitrust law is surprisingly ambiguous. Ask students and policymakers about it and more times than not they will say they ‘know it when they see it’. When we delve further into the concept, it becomes evident that they don’t often know what it is exactly or why it really matters for competition law. I, therefore, give them a variety of papers on the importance of market power: Kaplow’s paper is always amongst them, and I recently added Melamed’s too.
****
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)
****
Pinar Akman (Leeds University)
1. Louis Kaplow, Why (Ever) Define Markets, 124 Harv. L. Rev. 438 (2010): This is a true classic, which has become even more important in recent as competition lawyers and economists debate whether and how to define markets in the digital economy with big technology platforms. (link)
2. Frank H. Easterbrook, Limits of Antitrust, 63 Tex. L. Rev 1 (1984): This is a paradigm shifter, in my opinion. Whether you agree with its arguments or its ultimate position or not, you cannot ignore them and must engage with them. Antitrust certainly does have limits, and we may disagree on where those limits are, but acknowledging that there are limits to the antitrust inquiry is a pretty good start. (link)
3. Daniel Kahneman, Jack L. Knetsch & Richard Thaler, Fairness as a Constraint on Profit Seeking: Entitlements in the Market, 76 (4) Am. Econ. Rev. 76 (1986): Is it fair for a shop to raise the price of snow shovels the morning after a snowstorm? Well, you need to read the article to find out! (link)
Bonus (sorry, it’s not an article): Louis Kaplow and Steven Shavell, Fairness versus Welfare, Harvard University Press, 2006. A masterpiece on whether considerations such as fairness as opposed to welfare should guide policymaking. It’s one of those pieces which once you’ve read it, you can’t really go back to your old way of thinking on the topic. This book has also become even more important recently as policymakers are increasingly turning to concepts such as fairness to guide new policies in digital markets.
****
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)
****
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.
****
Nicolas Petit (European University Institute)
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, 10(7) JECL & Pract. 424 (2019): Civility made man, cutting edge doctrinal scholarship, leading the way for all aspiring European antitrust scholars. (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)
****
Oles Andriychuk (Strathclyde University)
1. Friedrich August von Hayek, Competition as a Discovery Procedure, 1968, in: Rechtsordnung und Handelnsordnung (Manfred E. Streit, Ed.) 2003, translation of the German text by Marcellus S. Snow, 5 Quarterly Journal of Austrian Economics 9-23 (2002): In this paper, Hayek defines the phenomenon of competition better than anybody else. (link)
2. Ioannis Lianos, Lost in Translation? Towards a Theory of Economic Transplants, 62 Current Legal Problems 346 (2009): This paper shows best the relationship between the legal and economic arms of competition policy. (link)
3. Ariel Ezrachi, Sponge, 5 J. Antitrust Enforc. 3 (2017): This article catches how and why competition policy should be (and is) integrated into broader socio-political context of each country (mainly implicitly of course). (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)
****
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)
****
Stefan Thomas (University of Tübingen)
1. Friedrich August von Hayek, Competition as a Discovery Procedure, 1968, in: Rechtsordnung und Handelnsordnung (Manfred E. Streit, Ed.) 2003, translation of the German text by Marcellus S. Snow, 5 Quarterly Journal of Austrian Economics 9-23 (2002): Hayek’s adage of “competition as discovery procedure” resonates until today. With respect to the role of competition in an open market economy, von Hayek highlights two aspects. First, he is skeptical about the idea that the outcome of markets can be precisely forecast. Admittedly, though, antitrust economics has made huge progress since the time this article was written (one must consider that von Hayek was not convinced, e.g., that game theory would make meaningful contributions to the assessment of markets, which does not seem to reconcile with the current state of the development in antitrust economics). Yet still, von Hayek’s article is a reminder of the inherent limitations that any econometric prediction faces. We must not be overconfident to know what the effects of a measure or an intervention will be, which should guide our enforcement approaches. Secondly, and even more importantly, the article stresses that the actual importance of a competitive market order for society is that it integrates the knowledge of consumers as well as producers into the discovery of solutions for the preferences of the future, which provides society the largest possible amount of information. Competition, therefore, is a highly efficient autonomous system to process this information and to concomitantly ensure that the market outcome is based on a high degree of societal legitimization (on that see already his article The Use of Knowledge in Society, 35 American Economic Review 519-530 (1945). (link)
2. Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2006): Any meaningful antitrust decision requires a balancing of the effects that a measure has on market participants. Consumer surplus is possibly the most powerful and widely used common unit of measure here. In theory, most kinds of effects can be ‘translated’ into decreases or increases of surplus and subsequently be weighed against each other. Rebecca Allensworth’s article makes the powerful claim, though, that this translation often involves a significant amount of discretion or “value judgment”, so that the idea of antitrust reasoning coming down to a totally objective and transparent mathematical exercise is rather a “myth”. This article reminds of the fact that the gap between economic concepts and real-world applications must not be ignored, and that the legal order has to provide clarity, and transparency, with respect to the underlying determinants of how this gap is bridged. (link)
3. Frank H. Easterbrook, Limits of Antitrust, 63 Tex. L. Rev 1 (1984): The quest of antitrust law is to find the right balance in its interventions to promote efficient and effective competition. Frank Easterbrook’s article alludes to the fact that this involves a great amount of knowledge. He reminds that, while per se rules enhance the efficiency of law enforcement, a form-based system can easily miss the point for which it was enacted in the first place. The bottom line of this article is, in my view, as contemporaneous as it can get when legislators and enforcers navigate the unchartered waters of the digital platform economy. Easterbrook should not be read as advocating a laissez-faire approach. What I take from this piece is the rather humbling insight that lawyers, in the realm of competition matters, should always be willing to challenge their own traditional convictions. Legal construal should be guided by a constant effort to reconcile rules and standards with scientific progress in economics as well as to adjust them to an ever-changing economy. (link)
