Rediscovering Antitrust\u27s Lost Values

This Article traces Congress’s consistent balancing and blending of social, political, moral, and economic values and objectives over the course of nearly 120 years of antitrust legislation. As a starting point, a plethora of outstanding and insightful scholarship analyzing Congress’s objectives in passing the Sherman, Clayton, and FTC Acts already exists. Less studied, however, has been Congress’s more recent legislation, including the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), and the National Cooperative Production Amendments of 1993 and 2004, to the National Cooperative Research Act of 1984 (NCRPA). By analyzing the legislative histories of such antitrust legislation in detail, the author seeks to show that Congress has never identified any single economic value such as consumer welfare or allocative efficiency, as the sole guiding lodestar for American antitrust. Rather, since 1890, Congress has successfully sought to blend and balance a complex set of social, political, moral, and economic ideals, values, and objectives in our antitrust laws. The author believes that it is time to deal with the real social, political, moral, and economic values conflicts in antitrust, instead of relying on neoconservative economic proxies that unilaterally declare the values debates to be scientifically and theoretically resolved. Based on nearly 120 years of legislative history, the author concludes that we need to return to an antitrust regulatory system that better reflects Congress’s dynamic historical balancing and blending of multiple fundamental American social, political, moral, and economic values. To do so, we must begin rediscovering antitrust’s lost values, and recommence our historic pursuit of an ethical, moral, and fair free-enterprise system truly devoted to the long-term economic and social welfare of all Americans

Should the Internet Exempt the Media Sector from the Antitrust Laws?

This article examines whether the old media and the new media , including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast majority of journalism awards. This and other evidence shows that the quality and variety of a number of specific old media functions are often so much better they should be considered distinct markets for antitrust purposes. Second, the evidence shows that the totality of what newspapers (or other media sources) do should be analyzed as a whole. This is because newspapers constitute a valuable form of “one stop shopping” for a diverse array of bundled journalism. For both reasons newspapers often should continue to constitute separate markets for antitrust purposes. If antitrust decision makers accept arguments that the Internet should routinely be included within the same market as the traditional media, however, the media sector would become virtually exempt from the antitrust laws. This would be a prescription for disaster.. The appendices for this paper are available at the following URL: http://scholarworks.law.ubalt.edu/all_fac/1748

Should the Internet Exempt the Media Sector from the Antitrust Laws?

Suppose the twenty largest traditional news media companies in the United States, including the Wall Street Journal, New York Times, Washington Post, ABC, NBC, CBS, Fox, and CNN, announced the merger of their news operations. They would likely claim that this merger would result in tremendous cost savings by eliminating duplicative news gathering expenses. They would be correct. They also would argue that prices would not be affected. After all, they compete for advertising dollars and personnel with many other TV and radio shows that are not in the news business. It would be difficult to demonstrate an adverse effect on the price of anything. However, just in case the antitrust enforcers argue that some prices might be affected, suppose the media companies also announced that, if allowed to merge, they’d agree never to raise the price of anything—not of advertising rates, not of newspapers, not of anything

Should the Internet Exempt the Media Sector from the Antitrust Laws?

Suppose the twenty largest traditional news media companies in the United States, including the Wall Street Journal, New York Times, Washington Post, ABC, NBC, CBS, Fox, and CNN, announced the merger of their news operations. They would likely claim that this merger would result in tremendous cost savings by eliminating duplicative news gathering expenses. They would be correct. They also would argue that prices would not be affected. After all, they compete for advertising dollars and personnel with many other TV and radio shows that are not in the news business. It would be difficult to demonstrate an adverse effect on the price of anything. However, just in case the antitrust enforcers argue that some prices might be affected, suppose the media companies also announced that, if allowed to merge, they’d agree never to raise the price of anything—not of advertising rates, not of newspapers, not of anything

Should the Internet Exempt the Media Sector from the Antitrust Laws?

This article examines whether the old media and the new media , including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast majority of journalism awards. This and other evidence shows that the quality and variety of a number of specific old media functions are often so much better they should be considered distinct markets for antitrust purposes. Second, the evidence shows that the totality of what newspapers (or other media sources) do should be analyzed as a whole. This is because newspapers constitute a valuable form of “one stop shopping” for a diverse array of bundled journalism. For both reasons newspapers often should continue to constitute separate markets for antitrust purposes. If antitrust decision makers accept arguments that the Internet should routinely be included within the same market as the traditional media, however, the media sector would become virtually exempt from the antitrust laws. This would be a prescription for disaster.. The appendices for this paper are available at the following URL: http://scholarworks.law.ubalt.edu/all_fac/1748

Recent Journalism Awards Won by Old, New, and Hybrid Media

This compares the quality of the old media to that of the new media by determining how often each type of media source wins major journalism awards. It divides media sources into three categories: old, new and hybrid. New media is limited to publications that were started purely as online news publications. Old media is classified in the traditional sense to include such newspapers as the New York Times. Hybrid media combines elements of both new and old media. Our research compares the number of Pulitzer Prizes and other major journalism awards won by these three types of media sources since 2005 (or the dates these awards first opened to non-traditional types of media). The results demonstrate that traditional media still wins the vast majority of journalism awards (225 of 307 awards (73%), including 24 of 37 Pulitzer Prizes), while the new media won only 36 of 307 awards, and only 4 Pulitzer Prizes). The results are especially striking for awards for investigatory journalism (traditional media won 65 of 86 awards - 76%) and for local journalism (traditional media won 23 of 32 awards - 77%). This is evidence that the reporting by the traditional media is often of a significantly higher quality than that of the new or hybrid media. This quality difference has implications for Antitrust analysis and for many other policy issues. This document serves as the appendix to an article: Thomas J. Horton & Robert H. Lande, Should the Internet Exempt the Media Sector from the Antitrust Laws? 65 Florida Law Review 1521 (2013), available at: http://scholarworks.law.ubalt.edu/all_fac/1747

Recent Journalism Awards Won by Old, New, and Hybrid Media

This compares the quality of the old media to that of the new media by determining how often each type of media source wins major journalism awards. It divides media sources into three categories: old, new and hybrid. New media is limited to publications that were started purely as online news publications. Old media is classified in the traditional sense to include such newspapers as the New York Times. Hybrid media combines elements of both new and old media. Our research compares the number of Pulitzer Prizes and other major journalism awards won by these three types of media sources since 2005 (or the dates these awards first opened to non-traditional types of media). The results demonstrate that traditional media still wins the vast majority of journalism awards (225 of 307 awards (73%), including 24 of 37 Pulitzer Prizes), while the new media won only 36 of 307 awards, and only 4 Pulitzer Prizes). The results are especially striking for awards for investigatory journalism (traditional media won 65 of 86 awards - 76%) and for local journalism (traditional media won 23 of 32 awards - 77%). This is evidence that the reporting by the traditional media is often of a significantly higher quality than that of the new or hybrid media. This quality difference has implications for Antitrust analysis and for many other policy issues. This document serves as the appendix to an article: Thomas J. Horton & Robert H. Lande, Should the Internet Exempt the Media Sector from the Antitrust Laws? 65 Florida Law Review 1521 (2013), available at: http://scholarworks.law.ubalt.edu/all_fac/1747