Efficiency Consideration and Merger Enforcement: Comparison of U.S. and EU Approaches

Discussion in this Essay is designed to explore recently introduced efficiency considerations and to compare developing law in the United States and the European Union. The following sections discuss why incorporation of efficiency factors has been controversial, explore efficiency analysis in connection with mergers under U.S. law, explore comparable developments in EU law, and, finally, offer a comparison of developments in the two jurisdictions

Antitrust and Intellectual Property: Unresolved Issues at the Heart of the New Economy

The New Economy differs in degree rather than kind from the old economy. Part II of this discussion examines the key differences that define the New Economy. Part Ill turns to several implications of those differences as they pertain to antitrust enforcement. I argue that the differences do not justify sweeping generalizations that antitrust enforcement has no place in the New Economy, but do require antitrust enforcement to make adjustments and exercise sensitivity towards intellectual property issues on a case-by-case basis. The goal of a coherent overall competition policy, in deciding both what conduct to enforce against and what remedies to require, should be to achieve an appropriate balance between the complementary legal regimes of intellectual property and antitrust. Part IV examines several examples of recent antitrust enforcement decisions involving intellectual property. Without addressing the ultimate merits of individual decisions, I find that antitrust enforcement has generally evolved in recent years in a way that pays heed to the distinctive characteristics of the New Economy. These decisions demonstrate a concerted attempt to give reasonable, fact-specific consideration to both incentives and opportunities to innovate. Finally, to supplement the preceding review of substantive issues, Part V examines the institutional challenges posed to antitrust enforcement by the New Economy

Challenges of the New Economy: Issues at the Intersection of Antitrust and Intellectual Property

There is wide agreement that the last decade or so has presented an unusually lively and challenging period for antitrust analysis. Among many reasons we can point to are deregulation and problems of transition to a free market (telecommunications and electricity production offer leading examples), developments in procedural cooperation and possible substantive convergence in response to the increasing globalization of competition and enforcement approaches, and priorities in addressing an unprecedented merger wave. An additional challenge involves the application of established antitrust principles to the growing high-tech sector of the economy. It is that application of antitrust law to the new economy, and particularly the relationship between antitrust and intellectual property, that I will address here

Competition policy in communications industries: New antitrust approaches

"Recent developments in the communications industries show a steady movement from direct regulation to increased reliance on free market incentives. As a believer in the efficiency of market incentives, I regard elimination or substantial reduction of regulation, assuming competition is a feasible alternative, as a good result. Of course, deregulation should be accompanied by a greater role for fundamental antitrust analysis and enforcement, lest the old shackles be replaced by new ones of private manufacture.

The Essential Facilities Doctrine Under United States Antitrust Law

The issue of essential facilities has attracted renewed attention in Europe in recent years because of the controversy between IMS Health Inc. and NDC Health Corporation, two competitors in pharmaceutical data services in Germany . . . After an extensive investigation, the European Commission (EC) ordered that IMS grant access to the 1860 brick structure on commercially reasonable terms, and the EC decision is now on appeal in the Court of First Instance in Luxembourg. One issue that emerged in that litigation is whether a decision by European authorities to grant access to the alleged essential facility, especially one whose market power derived in part from a copyright, would open a gap between European and U.S. antitrust law. In response to that contention, the authors of this piece filed a statement in the Court of First Instance describing U.S. law on the subject. We argued that the EC\u27s ruling is consistent with U.S. jurisprudence on the subject of essential facilities. The remainder of this article consists of a revised version of the Court of First Instance filing