Platforms, \u3ci\u3eAmerican Express\u3c/i\u3e, and the Problem of Complexity in Antitrust

I. Introduction II. The Great Generalization III. Antitrust Without Platform Theory ... A. Are Credit Cards Really a Boon to Society and Would Non-Platform Antitrust Wreck It? ... 1. Do Credit Cards Do Anything Special? ... 2. How a Platform Player Causes Harm on One Side ... B. Will the Cat Really Stay in the Credit Card Bag? IV. Conclusion: How Antitrust Complexity Devolves to Conservative Simplicit

Understanding the Recurrent Crisis in Legal Romanticism: Two Criteria for Coherent Doubt

Broadly skeptical or relativistic criticisms of law and legal discourse, of the kind prevalent in the last generation in American legal scholarship, pose an inherent logic problem: they tend to impugn normativity itself just as much as they do their intended target. What seems amiss is that the act of critique is itself normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is hard to see how the normativity implied in the very act of critique— indeed, in the very act of having purposes at all—is not at odds with the critique itself. As an organizing theme, this Article observes a parallel in the history of a much more influential intellectual movement, the “romantic” phase in nineteenth century literature. While no one seems to have noticed the striking similarities between that movement and our recent generation of legal iconoclasm, the lesson is that the conflict latent in this work is destined to lead only to ever more mystical, seemingly desperate efforts to explain how one can be both a productive legal academic and be a skeptic. As the romantic experience suggests, that cycle sooner or later ends when plausibility is exhausted and the winds of academic fashion turn elsewhere. But the more central contribution of this Article is a technical one. It will carefully model the internal logic conflict itself, and then devise a means logically to test whether various likely and widely held scholarly purposes could, under this test, resolve the conflict. Ultimately, this Article is something of a confession of one doubter that apparently there is no solution to this conflict

Why \u3ci\u3eCopperweld\u3c/i\u3e Was Actually Kind of Dumb: Sound, Fury, and the Once and Still Missing Antitrust Theory of the Firm?

Since even before Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), it has been thought that antitrust needs some theory of the firm to inform its application of a single-entity defense in Sherman Act section 1 litigation. Not only is that sense mistaken, it is emblematic of the deep misdirection of contemporary antitrust. It shows just how far antitrust has forgotten that it is a law, a practical tool to implement policy choices made through our system of government. Much too much of the time, it seems to fancy itself rather an abstract policy seminar to be dabbled in by the federal bench and its academic support staff. The point to be made specifically in this paper is one small part of that argument. Copperweld has generally been thought of as a watershed, a decision so obviously right and so reasonable in its analysis that it is not thought about very critically. But if it was so wise, one might have thought that single-entity decisions in the lower courts would become more principled and more coherently linked to clearly stated goals than they had been before. At the very least, they should seem different than the pre-Copperweld cases. And yet, they do not. Single-entity cases before and after Copperweld are largely indistinguishable, setting out the same ad hoc, subjective, and usually pretty shallow reasoning, with no obvious connection drawn to specified goals. The paper takes this fact as evidence that engaging in this sort of complex institutional analysis at such an early stage—often enough at some point of early summary disposal, with little or no discovery—is unwise

Platforms, \u3ci\u3eAmerican Express\u3c/i\u3e, and the Problem of Complexity in Antitrust

I. Introduction II. The Great Generalization III. Antitrust Without Platform Theory ... A. Are Credit Cards Really a Boon to Society and Would Non-Platform Antitrust Wreck It? ... 1. Do Credit Cards Do Anything Special? ... 2. How a Platform Player Causes Harm on One Side ... B. Will the Cat Really Stay in the Credit Card Bag? IV. Conclusion: How Antitrust Complexity Devolves to Conservative Simplicit

Clarifications and Gratitude

Certain things in this book plainly require clarification to avoid misunderstanding. In fact, I think this little discussion was among three people who mostly agree with each other, except that the reviewers may not have known it because I failed to explain myself well enough. Because I didn\u27t, they mostly didn\u27t discuss what I always intended to be the book\u27s real contribution and its most interesting material. I start out in Part I by trying to restate what I see as the problem that is the book\u27s only immediate concern. That restatement is a first draft for how I will try to clarify it in the book. Part II then reacts to the two critiques individually. They happen to be full of useful points from which this book will benefit, even beyond the clarification of its purpose. Even their specific doctrinal points are apposite in that I do happen to set out some thoughts of a doctrinal nature. (I do that for the practical reason that if I didn\u27t, then this pretty down-beat book could be misunderstood as me arguing that antitrust is hopeless or bad.) Part III briefly concludes by saying what I think really was at the heart of these two reviews, though they may seem quite different

#LOLNothingMatters

Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the contretemps currently enjoying some attention in the popular press, imagine that antitrust problems are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself. The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay. Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-fault rule to control concentration for its own sake. At least nominally, American antitrust has such a rule in its basic merger law, Clayton Act § 7, but the rest of it consists of retrospective, fault-based, law-enforcement rules that in their application are by nature somewhat piecemeal. A prospective concentration rule is needed because once markets become concentrated, situations are common in which neither disciplinary new entry nor retrospective conduct remedies can restore competition. The deeper problem inherent in competition policy, which demonstrates the significance of institutions as well as ideas, is that such a rule is also most difficult to enforce. That is so because markets in their ordinary operation are confusing and contradictory to watch, and the hardest interventions for government to defend to a skeptical public are those that are prospective. Finally, however, it so happens that one institutional correction currently on the legislative agenda could conceivably do some good in correcting for this problem—a specific plank in congressional Democrats’ “Better Deal” platform

#LOLNothingMatters

Institutions matter in antitrust, at least as much as ideas. Most antitrust arguments, and especially the contretemps currently enjoying some attention in the popular press, imagine that antitrust problems are short- or medium-term matters, and that they can be corrected with local doctrinal steps. I suggest there is a deeper problem, a phenomenon more deeply inherent in the nature of competition itself. The problem will cyclically recur, so long as institutional brakes are unavailable to keep it at bay. Specifically, it seems that competitive markets are difficult to preserve without some prospective, no-fault rule to control concentration for its own sake. At least nominally, American antitrust has such a rule in its basic merger law, Clayton Act § 7, but the rest of it consists of retrospective, fault-based, law-enforcement rules that in their application are by nature somewhat piecemeal. A prospective concentration rule is needed because once markets become concentrated, situations are common in which neither disciplinary new entry nor retrospective conduct remedies can restore competition. The deeper problem inherent in competition policy, which demonstrates the significance of institutions as well as ideas, is that such a rule is also most difficult to enforce. That is so because markets in their ordinary operation are confusing and contradictory to watch, and the hardest interventions for government to defend to a skeptical public are those that are prospective. Finally, however, it so happens that one institutional correction currently on the legislative agenda could conceivably do some good in correcting for this problem—a specific plank in congressional Democrats’ “Better Deal” platform

Waiting with Brother Thomas

In this Essay, Christopher Sagers argues that those schools of thought that could be called doubtful —that is, those predicated on suspicion of belief to some degree—share a range of similarities and, more importantly, are attacked through a set of common criticisms. He argues that the fundamental criticism of these doubtful schools of thought—that doubt leads us to nihilism and therefore must be bad—is a non sequitur. Furthermore, he continues, we reject doubt not because it is bad, but because it is difficult. Ultimately, he suggests ways to face the problems of nihilism or, rather, ways of understanding them as other than problems

Understanding the Recurrent Crisis in Legal Romanticism: Two Criteria for Coherent Doubt

Broadly skeptical or relativistic criticisms of law and legal discourse, of the kind prevalent in the last generation in American legal scholarship, pose an inherent logic problem: they tend to impugn normativity itself just as much as they do their intended target. What seems amiss is that the act of critique is itself normative. However it is stated, and notwithstanding efforts by the critic to say otherwise, it is hard to see how the normativity implied in the very act of critique—indeed, in the very act of having purposes at all—is not at odds with the criticism itself. As an organizing theme, this paper observes a parallel in the history of a much more influential intellectual movement, the romantic phase in nineteenth century literature. While no one seems to have noticed the striking similarities between that movement and our recent generation of legal iconoclasm, the lesson is that the conflict latent in this work is destined to lead only to ever more mystical, seemingly desperate efforts to explain how one can be both a productive legal academic and be a skeptic. As the romantic experience suggests, that cycle sooner or later ends when plausibility is exhausted and the winds of academic fashion turn elsewhere. But the more central contribution of the paper is a technical one. It will carefully model the internal logic conflict itself, and then devise a means logically to test whether various likely and widely held scholarly purposes could, under this test, resolve the conflict. Ultimately, this paper is something of a confession of one doubter that apparently there is no solution to this conflict

Much Ado About Possibly Pretty Little: McCarran-Ferguson Repeal in the Health Care Reform Effort

Since 1945, the McCarran-Ferguson Act\u27 (MFA) has shielded the business of insurance from antitrust liability, so long as the challenged conduct is regulated by State Law and does not constitute boycott, coercion, or intimidation. 2 This law, like the dozens of other statutory antitrust exemptions that still exist for other industries, has more or less always been controversial, and efforts to repeal it date back more than thirty years. Amid the past year\u27s intense congressional debate over health care reform legislation, a serious repeal effort was once again afoot, and even now it continues. Because they were linked all along to the overall health reform initiative, the repeal bills that have been considered would apply only to carriers in health insurance and medical malpractice insurance (MMI). In addition, depending on events that remain hard to predict, any of them that is adopted may apply to only some of those insurers\u27 conduct