Three on Antitrust
posted by Frank Pasquale
D. Daniel Sokol has been blogging up a storm at the Antitrust & Competition Policy Blog. I thought I’d highlight a few things I’d seen there, plus some other sources.
1) The ABA Antitrust Source is out, with a preview of the upcoming Supreme Court term.
2) You can catch the Kirkpatrick Antitrust Conference (on Conservative Economic Influence on U.S. Antitrust Policy) on a webcast that Georgetown is generously providing. (It can also be downloaded via iTunes.)
For a taste of the proceedings, check out my colleague Marina Lao’s careful critique of the Supreme Court’s 5-4 decision in Leegin. It will be featured in a forthcoming book, Where the Chicago School Overshot The Mark: Effect of Conservative Economic Analysis on U.S. Antitrust (ed. Robert Pitofsky, Oxford Univ. Press).
3) And for some humor, check out a Rockefeller’s attack on antitrust, reviewed here by Seth Bloom (Senior Counsel on the staff of the Senate Antitrust Subcommittee).
As Bloom writes,
Rockefeller’s Pollyannaish views of the virtues of an unregulated free market, without the intervention of antitrust law, might cheer those who wish to renew the Standard Oil trust, but should be unsatisfying for the rest of us. Anyone who has tried to win an argument over a bill with his or her cable television company, or tried to avoid an “early termination fee” 18 months into a two-year contract with his or her cell phone provider has experienced the market power controlled by a dominant firm with little competition. Anyone who has seen air fares rise when a competing airline exits a market in the face of predatory pricing, or is merged into a dominant carrier, would not be very happy to forego antitrust enforcement. Anyone who has observed what happens to prices when they are controlled by cartels – for example, crude oil in the hands of the OPEC cartel – might not be so willing to dismiss the need to prohibit price-fixing.
What I’m wondering is if Rockefeller will reach out and attack the IP laws next. As James Boyle has argued,
We appear to have a kind of bipolar disorder in our view of the state. When it comes to breaking up high tech monopolies through antitrust, we are deep sceptics. We point out the unanticipated consequences and deadweight losses to state intervention. We say the state is a blundering second or third best to the genius of the market, its efforts to establish limits and quotas will create a mess that even the Invisible Hand cannot sweep clean.
But when it comes to setting up some of those same quotas, limits and monopolies in the first place – in this case, by overly broad intellectual property rights that clog the channels of competition and allow companies to leverage their existing property into a control over tied services – we are much more sanguine. This, after all, is property, not regulation. Here there seems to be an optimism about unintended consequences, a willingness to believe that vague state regulatory schemes have got it right – even when existing market leaders can twist them to prevent challenges to their position. In one view, the state is a bumbling idiot, in the other a scalpel-wielding genius, carving just the right pound of flesh to satisfy our debts to creators without shedding a drop of the blood of competitors and future innovators. Can this be the same state we are talking about?
To Cato’s credit, they have questioned some expansive IP laws, and have provided a forum for Boldrin and Levine.
December 26, 2007 at 6:50 am
Posted in: Antitrust
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