How Italian Colors Guts Private Antitrust Enforcement by Replacing it with Ineffective Forms of Arbitration

The United States is becoming more like Europe, and not in a good way. For a long time, the central difference between antitrust enforcement in the United States and Europe has been that the United States features not only public enforcement, but a vigorous system of private antitrust enforcement, while in Europe, public agencies have had an effective monopoly on antitrust enforcement. But that difference is on the verge of collapsing. We are achieving a form of convergence; but contrary to expectations, this convergence is not coming from recent European efforts to facilitate private enforcement, which have not yet overcome some serious obstacles on discovery and class actions. Instead, it is coming from the recent US Supreme Court decision in American Express v. Italian Colors Restaurant, which threatens to gut private antitrust enforcement in the United States by replacing it with ineffective forms of arbitration

What term limits do that ordinary voting cannot

We already have term limits on legislators; they're called elections. So why don't we just throw the bums out?" Instead, voters simultaneously cast their ballots for senior incumbents and for term limits. They do so for two primary reasons: seniority clout and barriers to entry. No district wants to unilaterally cede the power it has, and there may be no viable alternative on the ballot. All districts have to collectively agree to tum out their senior incumbents to solve the collective problem of unrepresentative legislators. Term limits further important values of democratic equality and freedom. Legislative term limits reduce inequalities in legislative power across districts and over time. More important, term limits (on incumbents in general) make democratic choice far freer. Term limits solve a collective action problem and lessen the seniority penalty that makes it difficult for districts to oust ideologically unsatisfactory incumbents. And term limits reduce barriers to entry that discourage challengers and thus limit ballot options. Any furthering of those values furthers core democratic objectives. Term limits are particularly vital at a time when 99 percent of congressional incumbents who have spent more than six years in office are reelected. The arguments against term limits, while not illogical, tum out to be so weak in fact or mixed in theory that none can rebut the strong argument that term limits will enhance the ability of electorates to have their views represented by their elected officials.Este Documento forma parte de la serie Working Papers (ISSN 0327-9588), publicada por la Universidad Torcuato Di Tella entre 1993 y 200

How Should Competition Law Be Taught?

In a recent review of Global Competition Law and Economics, a book I co-wrote with Damien Geradin, John Kallaugher raises some interesting questions about the very premises of the book. These questions seem worth addressing because they go well beyond an assessment of the book to raise fundamental pedagogical issues about the best approach to teaching competition law in the 21st century. The fundamental differences are threefold. John Kallaugher argues that competition law courses should: (1) favor vocational training over analytical and economic issues; (2) limit their scope to a single legal jurisdiction; and (3) focus on procedure rather than substance. The premises of the book are precisely the opposite, and conform to my own views about how best to teach a competition law course. First, competition law courses should focus on underlying analytical and economic ideas, rather than on vocational memorization of particular doctrinal formulations, mainly because it is the underlying ideas that drive the actual resolution of cases. Those ideas are thus central to good antitrust lawyering, as well as to a sophisticated understanding of the content of modern competition law. Second, competition law courses should abandon the blinkered focus on one legal jurisdiction, because the reality of modern international markets means that business and law firms must understand the combination of laws that apply to conduct and mergers, and ideas and trends in legal development constantly flow between jurisdictions. Third, competition law courses should focus on the substance of how cases are resolved, rather than fixating on procedural rules, because it is the substantive analysis that is more distinctive to competition law, harder for lawyers to learn on the job, and in the end determines how businesses can act

Disgorgement as an Antitrust Remedy

Disgorgement of illicitly-gained profits is a legally available remedy, but is rarely sought by antitrust agencies. This piece argues that the main conventional explanation for its rare usage - the availability of private damage remedies - is often unconvincing given obstacles to such suits, and is becoming even less convincing given recent antitrust decisions narrowing private and class action damage suits. Further, because the behavioral and structural remedies otherwise sought by the government are often ineffective in monopolization cases, disgorgement might often be a referable governmental remedy. Finally, if we understood the EC claim for excessive pricing to be a claim for disgorgement of profits earned through the anticompetitive acquisition of a dominant position, we could both make better policy sense of that claim and fill a regulatory gap that EC law would otherwise leave for exclusionary conduct that created a dominant position, but did not abuse existing dominance