Swimming Against the Deregulatory Tide

Increasing pressure from institutional investors during the last two decades has led to indirect discounting practices that some commentators contend threatens the fixed price offering system. In response to this concern the SEC in 1980 approved new NASD rules designed to bar direct or indirect discounting in fixed price public offerings of securities. In this Article Professor Gerla argues that the SEC erred in approving the new NASD rules. Professor Gerla states that the new rules change drastically the Commission\u27s policy that the fixed price system operate without direct or indirect government enforcement. Further, he contends that the SEC approved the rules without empirical data sufficient to support arguments on either side. Professor Gerla concludes that the rule changes will encourage inefficiency in the investment banking industry and that the Commission\u27s policy shift on the role of government in enforcing anticompetitive agreements in effect has allowed the reregulation of the underwriting industry

Restoring Rivalry As a Central Concept in Antitrust Law

In the fractious realm of antitrust law, one proposition commands nearly universal allegiance—that antitrust laws protect “competition.” A strong consensus once existed among antitrust courts that competition was to be defined by its dictionary meaning of rivalry among firms for the business of consumers. The concept that competition equals economic efficiency rather than rivalry has grown in influence since the 1970s. It is time to restore rivalry to the throne and reestablish it as a central concept in antitrust law. Defining competition in terms of rivalry is both sound law and sound economics. Rivalry cannot, however, be restored to prominence under the same terms and conditions which prevailed before it was displaced. Part II of this article is devoted to an exploration of why, as a matter of statutory interpretation, competition under the antitrust laws should be defined as rivalry. Part III discusses why focusing the antitrust laws on the rivalry standard will lead to increases in productive and innovative efficiency, which are so necessary for long-term success in an increasingly globalized and technologically driven economy. Part IV of this article contains a discussion of some of the changes in modern antitrust doctrine that will be wrought by a renewed focus on using the antitrust laws to promote rivalry. Finally, Part V discusses the doctrinal changes and accommodations that must be made if rivalry is to remain a viable central organizing concept in antitrust law