Accommodating Competition: Harmonizing National Constitutional and Antitrust Commitments

This Article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets

A Turning Point in Merger Enforcement: \u3cem\u3eFederal Trade Commission v. Staples\u3c/em\u3e

This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC\u27s successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1150/thumbnail.jp

A Turning Point in Merger Enforcement: \u3cem\u3eFederal Trade Commission v. Staples\u3c/em\u3e

This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC\u27s successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1150/thumbnail.jp

Unlocking Antitrust Enforcement

There is no antitrust law without antitrust law enforcement. Legal action turns economic and jurisprudential theory into litigation, remedy, prohibition, deterrence, and precedent that advance competition. This Collection, Unlocking Antitrust Enforcement, demonstrates that tools to advance antitrust enforcement already exist, and they are well-suited to confront today\u27s U.S. antitrust challenges. The Features arrive at a critical moment, when economic forces mirror the industrial concentration and economic inequality of the turn of the twentieth century. Recall that the impetus for the creation of U.S. antitrust laws was the growing power of Industrial Age trusts, combinations of holdings within and across industries that dominated important economic sectors like oil, steel, and tobacco

Five Principles for Vertical Merger Enforcement Policy

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on balance in the oligopoly markets that typically prompt agency review, nor set a higher evidentiary standard based on such a presumption; (iii) The agencies should evaluate claimed efficiencies resulting from vertical mergers as carefully and critically as they evaluate claimed efficiencies resulting from horizontal mergers, and require the merging parties to show that the efficiencies are verifiable, merger-specific and sufficient to reverse the potential anticompetitive effects; (iv) The agencies should decline to adopt a safe harbor for vertical mergers, even if rebuttable, except perhaps when both firms compete in unconcentrated markets; (v) The agencies should consider adopting rebuttable anticompetitive presumptions that a vertical merger harms competition when certain factual predicates are satisfied. We do not intend these presumptions to describe all the ways by which vertical mergers can harm competition, so the agencies should continue to investigate vertical mergers that raise concerns about input and customer foreclosure, loss of a disruptive or maverick firm, evasion of rate regulation or other threats to competition, even if the specific factual predicates of the presumptions are not satisfied

Antitrust Enforcement Against Platform MFNs

Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by a variety of online platforms offering, for example, hotel and transportation bookings, consumer goods, digital goods, or handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the United States. Our Feature explains why MFNs employed by online platforms can harm com­ petition by keeping prices high and discouraging the entry of new platform rivals, through both exclusionary and collusive mechanisms, notwithstanding the possibility that some MFNs may facilitate investment by limiting customer freeriding. We discuss ways by which government enforcers in the United States and private plaintiffs could potentially reach anticompetitive platform MFNs under the Sherman Act, and the litigation challenges such cases present

Repeatability and reliability of exploratory behavior in proactive and reactive zebrafsh, Danio rerio

Behavioral responses to novel situations often vary and can belong to a suite of correlated behaviors. Characteristic behaviors of different personality types (e.g. stress coping styles) are generally consistent across contexts and time. Here, we compare the repeatability and reliability of exploratory behaviors between zebrafsh strains selectively bred to display contrasting behavioral responses to stressors that represent the proactive-reactive axis. Specifically, we measure exploratory behavior of individual fish in an open field test over five weeks. We quantified the stationary time, average swimming speed and time spent by a fish in the center area. We found a number of strain differences for each behavioral measure. Stationary time was the most repeatable and reliable measure for assessing proactive-reactive behavioral differences. Reactive zebrafish generally showed the highest reliability and repeatability of exploratory behavior compared to proactive zebrafish and a separate wild caught strain. Given the increased interest in the evolutionary consequences and proximate mechanisms of consistent individual differences, it will be important to continue to investigate how different selective pressures may influence expression of stress coping styles and their effects on the consistency of an animal’s behavior

Teaching Hispanic restaurant workers: Translanguaging as culturally sustaining pedagogy

In this article, we make a case for incorporating translanguaging pedagogy into the framework of Culturally Sustaining Pedagogy (CSP). Drawing on data from a one-year ethnographic study of an adult ESL program, we show how teachers believed in and attempted to create spaces for translanguaging and CSP, but in practice fell short. We conclude that translanguaging is most powerful when understood as a component of CSP but call for more research in this area.Accepted manuscrip

Recommendations and Comments on the Draft Vertical Merger Guidelines

These recommendations and comments respond to the request by the Federal Trade Commission and the Department of Justice’s Antitrust Division for public comment on the draft 2020 Vertical Merger Guidelines. We commend the agencies for updating the 1984 non-horizontal merger guidelines by recognizing the substantial advances in economic thinking about vertical mergers in the thirty-five years since those guidelines were issued. Our comments emphasize four issues: (i) the treatment of the elimination of double marginalization (“EDM”), particularly that the draft vertical merger guidelines appear inappropriately to make proof of cognizability part of the agencies burden and that they appear to inappropriately treat the merging firm’s failure to have eliminated double marginalization pre-merger as proof that the merger would lead to EDM and that the post-merger EDM would be merger-specific; (ii) the seemingly arbitrary and inappropriately permissive safe harbor; (iii) the inappropriate (though perhaps unintended) apparent requirement that harms be quantified; and (iv) the inappropriate (though perhaps unintended) apparent requirement that the agencies show that foreclosure would not have been profitable before the merger. We are concerned that these features of the draft Guidelines will lead to under-enforcement and false negatives (including under-deterrence)