Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity and Judicial Training on Appeals

Modern antitrust litigation sometimes involves complex expert economic and econometric analysis. While this boom in the demand for economic analysis and expert testimony has clearly improved the welfare of economists—and schools offering basic economic training to judges—little is known about the empirical effects of economic complexity or judges' economic training on decision-making in antitrust litigation. We use a unique data set on antitrust litigation in district courts during 1996—2006 to examine whether economic complexity impacts decisions in antitrust cases, and thereby provide a novel test of the frequently asserted hypothesis that antitrust analysis has become too complex for generalist judges. We also examine the impact of one institutional response to economic complexity - basic economic training by judges. We find that decisions involving the evaluation of complex economic evidence are significantly more likely to be appealed, and decisions of judges trained in basic economics are significantly less likely to be appealed than are decisions by their untrained counterparts. Our results are robust to a variety of controls, including the type of case, circuit, and the political party of the judge. Our tentative conclusion, based on a revealed preference argument that views a party’s appeal decision as an indication that the district court got the economics wrong, is that there is support for the hypothesis that some antitrust cases are too complicated for generalist judges.antitrust, Daubert, complexity, economic training, expert witness

Development of a Three-Factor Model of Psychological Ownership of Country: Applications for Outgroup Attitudes and Citizenship Behaviors

Mechanisms linking social identification to negative outgroup attitudes is a prevailing inspiration for research in intergroup relations. Psychological ownership—the possessive feeling that some object is ‘mine’ or ‘ours’—has been proposed as one possible mechanism. Social identification is a precursor to developing feelings of ownership over ideological spaces, such as countries or territories. Subsequently, ownership may drive negative outgroup attitudes through exhibition of one’s right to control the use of the ingroup’s space. Psychological ownership may also have positive roles in developing citizenship behaviors, such as through voting or buying ingroup national products. The following program of research tests these ideas. Study 1 provides preliminary evidence of psychological ownership’s plausible role as a mediator between southern identification and negative outgroup attitudes toward Blacks in the Southern United States. A comprehensive measure of psychological ownership of country is developed in studies 2 and 3 with evidence of validity and reliability presented in studies 2-4. Test-retest reliability is demonstrated in study 5 and predictive validity is demonstrated in studies 4 and 7. Study 6 examines a longitudinal mediation model and study 7 examines how psychological ownership predicts decisions to buy national versus foreign products. Emerging from this program of research is a reliable and valid measure of psychological ownership of territorial spaces, evidence that social identification is a precursor to psychological ownership, evidence for psychological ownership as a predictor of positive citizenship behaviors, and conflicting findings over psychological ownership mediating the positive relationship between social identification and more negative outgroup attitudes. Across studies, social identification was linked to more negative outgroup attitudes. In some cases, psychological ownership was a plausible mediator wherein it was linked to more negative attitudes (Studies 1 & 6), in some cases this was specific to the immersion factor (Study 4) or self-identity and efficacy factors (Study 7); however, efficacy appears associated with more positive attitudes (Study 7). There was no evidence of mediation in the longitudinal model (Study 6). This research initiates the systematic study of psychological ownership in the intergroup domain and refines our understanding of possession of non-physical entities

Sui Generis\u27?: An Antitrust Analysis of Buyer Power in the United States and European Union

The argument of this paper is simple: from an economic policy point of view, there is nothing special about market power on the buyer side of markets. In particular, we reject the contention that retail sector buying power requires different treatment from antitrust authorities compared to other sectors in the economy. Likewise, we find arguments contending that ‘buyer power’ requires that new or different laws be enacted or judicially developed ultimately unpersuasive. This paper is divided into three parts. Part I summarizes the relevant economics of buyer power, and more generally, monopsony. Part II compares the relevant antitrust treatment, in the U.S. and Europe, with respect to buyer power and competition policy. Part III applies our legal and economic insights to supermarket competition

Antitrust (Over-?) Confidence

On October 5, 2007, a group of antitrust scholars convened on Chicago\u27s Near North Side to discuss monopolization law. In the course of their freewheeling but fascinating conversation, a number of broad themes emerged. Those themes can best be understood in contrast to a body of antitrust scholarship that was born six miles to the south, at the University of Chicago. Most notably, the North Side discussants demonstrate a hearty confidence in the antitrust enterprise - a confidence that is not shared by Chicago School scholars, who generally advocate a more modest antitrust. As scholars who are more sympathetic to Chicago School views, we are somewhat skeptical. While we applaud many the of the insights and inquiries raised during the conversation, and certainly this sort of discussion in general, our task in this article is to draft a critical analysis of the October 5 conversation. In particular, we critique the North Side discussants\u27 vision of a big antitrust that would place equal emphasis on Sections 1 and 2 of the Sherman Act and would expand private enforcement of Section 2

The Effect of Any Willing Provider and Freedom of Choice Laws on Prescription Drug Expenditures

Any Willing Provider and Freedom of Choice laws restrict the ability of managed care entities, including pharmacy benefit managers, to selectively contract with providers. The managed care entities argue this limits their ability to generate cost savings, while proponents of the laws suggest that such selective contracts limit competition, leading to an increase in aggregate costs. We examine the effect of state adoption of such laws on total state healthcare spending, finding that any willing provider/freedom of choice laws are associated with cost increases of at least 3 percent. These results suggest that these laws are harmful from a spending perspective

Ewing's Sarcoma and Second Malignancies

Ewing's sarcoma (ES) is a rare tumor that is most common in children and young adults. Late effects of ES therapy include second cancers, a tragic outcome for survivors of such a young age. This paper will explore the frequencies and types of malignancies that occur after ES. Additionally, it will review how second malignancies have changed with the shift in treatment from high-dose radiation to chemotherapy regimens including alkylators and epipodophyllotoxins. The risk of additional cancers in ES survivors will also be compared to survivors of other childhood cancers. Finally, the possible genetic contribution to ES and second malignancies will be discussed

Can Bundled Discounting Increase Consumer Prices Without Excluding Rivals?

Since we abhor suspense, we will quickly answer the question our title poses: No. As a general matter, bundled discounting schemes lower prices to consumers unless they are predatory—that is to say, unless they exclude rivals and thereby permit the bundled discounter to price free of competitive restraint. The corollary of this observation is that bundled discounting is generally pro-competitive and pro-consumer and should only be condemned when it is capable of excluding rivals. We pose and answer this question because it is at the heart of Section VI of Professor Elhauge’s provocative draft article which is the subject of this symposium. In Section VI, Professor Elhauge argues that bundled discounting can have “power effects” identical to conventional tying arrangements irrespective of any exclusionary effect on rivals as well as that cost/revenue tests for bundled discounting perversely immunize the worst bundled discounting schemes—those that represent the highest non-exclusionary price increases to consumers

The Easterbrook Theorem: An Application to Digital Markets

The rise of large firms in the digital economy, including Amazon, Apple, Facebook, and Google, has rekindled the debate about monopolization law. There are proposals to make finding liability easier against alleged digital monopolists by relaxing substantive standards; to flip burdens of proof; and to overturn broad swaths of existing Supreme Court precedent, and even to condemn a law review article. Frank Easterbrook’s seminal 1984 article, The Limits of Antitrust, theorizes that Type I error costs are greater than Type II error costs in the antitrust context, a proposition that has been woven deeply into antitrust law by the Supreme Court. We consider the implications of this assumption on the standard of proof. We find that, taking variants of the Easterbrook assumption as given, the optimal standard of proof is stronger than the preponderance of the evidence standard. Our conclusion is robust to how one specifies the preponderance of the evidence standard and stands in stark contrast to contemporary proposals to reduce or eliminate the burden of proof facing antitrust plaintiffs in digital markets