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The first contribution to this section is by Richard Schmalensee titled “Thoughts on the Chicago school legacy in U.S. antitrust.” It appears the purpose of this essay is to set up a target for the rest of the contributors to shoot at – a target that is emphatically pro-Chicago. In his essay, Schmalensee reviews some of the aspects of U.S. antitrust policy that outraged Chicago school lawyers and economists in the 1970s. He takes a brief look at some of Chicago's subsequent victories that he claims are now generally accepted as positive changes. And finally, he argues that some of Chicago's lost battles also constitute positive aspects of its legacy. His discussion is focused on four broad issues: the objectives of antitrust, the past policy toward “no-fault” concentration, the treatment of productive efficiency, and the evaluation of non-standard business conduct (pp. 11–12).

This paper aims to draw attention to a broad range of experimental institutional initiatives which operate in the absence of a global antitrust regime. The purpose of this paper is to offer food for thought to scholars in other fields of international trade law facing challenges from divergent national regimes.

Taking inspiration from political science literature on institutions, this paper crafts a broad analytical lens which captures various organisational forms (including networks), codes (including soft law) and culture (including epistemic communities). The strength and shortcomings of traditional “bricks and mortar” institutions such as the European Union (EU) and General Agreement Tariffs and Trade/World Trade Organisation are first examined. Then, the innovative global network of International Competition Network (ICN) is analysed.

It highlights the value of the global antitrust epistemic community in providing a conducive environment for extensive recourse to “soft law”. Examples from the EU and the ICN include measures which find expression in enforcement tools and networks. These initiatives can be seen as experimental responses to the challenges of divergent national antitrust regimes.

It is desktop research rather than empirical field work.

To raise awareness outside the antitrust scholarly community of the variety of experimental institutional initiatives which have evolved, often on a soft law basis, in response to the challenges experienced by national enforcement agencies and businesses operating in the absence of a global antitrust regime.

It offers some personal reflections on the ICN from the author’s experience as a non-governmental advisor. It draws attention to the ICN’s underappreciated range of educational materials which are freely available on its website to everyone. It submits that the ICN template offers interesting ideas for other fields of international trade law where a global regime is unrealisable. The ICN is a voluntary virtual network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if standardisation of norms/processes is too ambitious a goal in other fields of international trade law, the ICN model still offers inspiration as an epistemic community within an inclusive and dynamic forum for encouraging debate and creating a culture of learning opportunities where familiarity and trust is fostered.

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.

Many jurisdictions fine illegal cartels using penalty guidelines that presume an arbitrary 10% overcharge. This article surveys more than 700 published economic studies and judicial decisions that contain 2,041 quantitative estimates of overcharges of hard-core cartels. The primary findings are: (1) the median average long-run overcharge for all types of cartels over all time periods is 23.0%; (2) the mean average is at least 49%; (3) overcharges reached their zenith in 1891–1945 and have trended downward ever since; (4) 6% of the cartel episodes are zero; (5) median overcharges of international-membership cartels are 38% higher than those of domestic cartels; (6) convicted cartels are on average 19% more effective at raising prices as unpunished cartels; (7) bid-rigging conduct displays 25% lower markups than price-fixing cartels; (8) contemporary cartels targeted by class actions have higher overcharges; and (9) when cartels operate at peak effectiveness, price changes are 60–80% higher than the whole episode. Historical penalty guidelines aimed at optimally deterring cartels are likely to be too low.

There are two opposite views about whether the Antitrust Law is conducive to the development of the economy. One view is that the Antitrust Law can restrain monopoly, maintain market competition and benefit economic growth. The other view is that the Antitrust Law inhibits innovation by monopolistic firms and fosters rent-seeking, which is bad for economic growth. To provide a possible perspective for clarifying the controversy, this paper aims to answer the following two questions: first, will the Antitrust Law inhibit corporate innovation? Second, does the antitrust enforcement agency discriminate against private enterprises?

Based on the samples of A-share listed companies from 2003 to 2013, the authors use the implementation of China’s Antitrust Law in 2008 as a policy shock, take the monopoly enterprises in each industry as the treatment group and competitive enterprises as the control group, using the difference-in-differences method to test the impact of the implementation of the Antitrust Law on corporate innovation activities.

The results show that compared with competitive enterprises, the patent output of monopolistic enterprises was significantly reduced after the implementation of the Antitrust Law, which indicates that the Antitrust Law does inhibit the innovation activities of monopolistic enterprises. Further research finds that the innovation suppression effect of the Antitrust Law is more prominent in state-owned enterprises, which means that the government does not have “selective law enforcement” against private enterprises in the process of law enforcement. Therefore, the results provide evidence for the idea that government intervention is neutral.

First, the paper enriches and expands the research on the factors affecting corporate innovation from the perspective of market structure. Second, it enriches and expands relevant research on the consequences of implementing the Antitrust Law from the perspective of corporate innovation. Third, it not only provides the relevant empirical evidence for clarifying the dispute about the Antitrust Law but also is helpful to clarify whether the Chinese Government has “selective law enforcement” against private enterprises.

Research in the discipline of antitrust economics, which encompasses legal as well as economic aspects, reveals a young and expanding area that has established its own literature within the past twenty years. The citations in this bibliographic essay were selected for their particular relevance to the subject and represent a core collection of materials that would be most useful to the study of American antitrust economics.

This is the first paper in a volume devoted exclusively to antitrust law and economics. It summarizes the other papers and addresses two issues. First, after showing that the federal courts generally view consumer welfare as the ultimate goal of antitrust law, it asks what they mean by that term. It concludes that recent decisions appear more likely to equate consumer welfare with the well-being of consumers in the relevant market than with economic efficiency. Second, it asks whether a buyer must possess monopsony power to induce a price discrimination that is not cost justified. It concludes that a buyer can often obtain an unjustified concession simply by wielding bargaining power, but the resulting concession may frequently – though not always – improve consumer welfare.

While recent years have seen a remarkable relaxation of the antitrust laws, these laws are not yet dead. Moreover, what is permitted in the United States might well be illegal in the European Economic Community. American business managers therefore should proceed carefully in taking advantage of the trend to relax antitrust laws.

The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided by a preponderance of the evidence. This means that conduct challenged under the rule of reason is only condemned if the conduct resulted in more competitive harm in the actual world than a world without the alleged violation. Under conventional analysis, the intent of the parties also plays only a supporting role in determining whether the conduct was anticompetitive. A holder of a valid patent has a right to exclude others practicing the patented technology. And, the patent holder is not assumed to have market power because it expended resources in maintaining exclusionary rights. Actavis creates doubts about these propositions in circumstances beyond the “reverse” payment settlement of a patent suit that may have delayed an alleged infringer market entry. This chapter explores whether applying Actavis logic to antitrust litigation can result in condemnation of practices where there is little chance of an anticompetitive effect, where the patent holder likely has a valid and infringed patent, where there is little reason to believe that the patent holder has market power, and where only one party, or no parties, to an agreement have an anticompetitive intent. This chapter also investigates whether Actavis creates new problems with standing analysis, damages calculations, and the balancing of efficiencies against anticompetitive effects. Nevertheless, the lower courts have begun to extend the logic of Actavis. This is apparent in the condemnation of no-Authorized-generic settlements.

This paper focuses on two related questions at the intersection of antitrust and intellectual property law. First, under what circumstances must the holder of a patent or a copyright or the owner of a trade secret allow others to use that intellectual property? Second, under what circumstances can the holder of an intellectual property right use that right to make it difficult for another party to succeed in a related market? These questions have vexed antitrust and intellectual property scholars alike ever since the Federal Circuit ruled in 2000 that patent holders “may enforce the statutory right to exclude others from making, using, or selling the claimed invention free from liability under the antitrust laws,” a ruling that directly contradicted the Ninth Circuit ruling that antitrust liability could be imposed for almost identical conduct, depending on the motivations of the patent holder. The various proceedings in United States v. Microsoft only added fuel to the firestorm of controversy.After briefly retracing the jurisprudential path to see how this situation arose, we propose a solution that primarily involves a variation on the real property concept of adverse possession for the intellectual property space along with a slight extension of the Essential Facilities Doctrine for industries that exhibit network effects. We examine, both for firms with and without market power, how our proposal would resolve the situations presented by large fixed asset purchases, the introduction of entirely new products, and operating systems with network effects. We also demonstrate how our proposal could be applied in the European antitrust enforcement context.