What Consensus? Ideology, Politics and Elections Still Matter

This article, which was prepared for an ABA Antitrust Section Panel, discusses the role of ideology and politics in antitrust enforcement and the impact of elections in the last twenty year on enforcement and policy at the federal antitrust agencies. The article explains the differences in antitrust ideologies and their impact on policy preferences. The article then uses a database of civil non-merger complaints by the DOJ and FTC over the last three Presidential administrations to analyze changes in the number, type and other characteristics of antitrust enforcement. It also discusses change in vertical merger enforcement and other antirust policies such as amicus briefs, reports and guidelines. The article concludes that elections do matter and that the impact of elections on the DOJ and FTC has differed significantly

The Analysis of Coordinated Effects in EU Merger Control: Where Do We Stand after Sony/BMG and Impala?

The recent Impala Judgment by the CFI on the Sony/BMG Decision by the Commission represents the most important ruling on collective dominance since Airtours. We review both the Decision and the Judgment and derive implications for the institutional and substantive development of EU Merger Control. Firstly, Impala introduces an ambitious symmetric standard of proof for prohibition and clearance decisions by the Commission. While alleviating fears of an increasing number of false positives in the aftermath of Airtours, this entails the problem of how to deal with cases in which neither the existence, nor the absence of anticompetitive effects can be proven to the required standard. Secondly, the ongoing process of increasing the role of third parties in European Merger Control is fuelled. Thirdly, Impala has the potential to herald a comeback of coordinated effects analysis, further precising the conditions for establishing this kind of anticompetitive effect. Additionally, given the characteristics of the music industry, we criticise a lack of in-depth economic analysis of non-price competition issues, such as innovations and product diversity

Improving Amendment

State constitutional amendment rules are often criticized for their poor design. The most common criticism is that the frequent use of direct democracy bypasses the virtues of representative decision making and effectively surrenders constitutional politics to well-financed special interests. Indeed, many initiative states need to improve the democratic quality of their amendment procedures. They need effective ways to foster constructive public deliberation, incentivize meaningful citizen participation, and provide checks on the influence of special interests. In this essay, I consider whether states might achieve some of those improvements if they changed the process for ratifying citizen-initiative amendments to require debate and approval by locally-elected governing bodies rather than a public referendum. The specific proposal that I explore is whether initiative states could improve their amendment processes by changing amendment rules to require ratification of citizen-initiatives by some majority of existing county governing bodies rather than a statewide referendum. Sending amendment ratification decisions to locally-elected bodies could have the beneficial effect of keeping constitutional decision-making close to citizens while at the same time retaining many of the virtues associated with representative decision-making. It might also help undermine special-interest capture by dividing the amendment power across numerous independently elected bodies rather than centralizing it within a state legislature or popular majority vote. Of course, a county-ratification model is not a panacea. There are many difficulties and costs associated with this approach. It might, for example, make the citizen-initiative too difficult to use, which would effectively shift all amendment power to the legislature. County representatives might also be ill-suited to decide statewide constitutional issues because of mismatched expertise and limited resources. A county-ratification model could also result in unconstitutional voter-dilution because of significant population differences between counties. These issues, among others, represent serious difficulties with the county-ratification model that cannot be overlooked. My goal in this essay is only to suggest that the county-ratification model deserves serious consideration as states struggle with how they might improve their amendment processes