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New Article Forthcoming in Yale Law Journal: The Antitrust/ Consumer Protection Paradox: Two Policies At War With One Another

Posted by Josh Wright on May 31, 2012

Yale Law Journal has published my article on “The Antitrust/ Consumer Protection Paradox: Two Policies At War With One Another.”  The hat tip to Robert Bork’s classic “Antitrust Paradox” in the title will be apparent to many readers.  The primary purpose of the article is to identify an emerging and serious conflict between antitrust and consumer protection law arising out of a sharp divergence in the economic approaches embedded within antitrust law with its deep attachment to rational choice economics on the one hand, and the new behavioral economics approach of the Consumer Financial Protection Bureau.  This intellectual rift brings with it serious – and detrimental – consumer welfare consequences.  After identifying the causes and consequences of that emerging rift, I explore the economic, legal, and political forces supporting the rift.

Here is the abstract:

The potential complementarities between antitrust and consumer protection law— collectively, “consumer law”—are well known. The rise of the newly established Consumer Financial Protection Bureau (CFPB) portends a deep rift in the intellectual infrastructure of consumer law that threatens the consumer-welfare oriented development of both bodies of law. This Feature describes the emerging paradox that rift has created: a body of consumer law at war with itself. The CFPB’s behavioral approach to consumer protection rejects revealed preference— the core economic link between consumer choice and economic welfare and the fundamental building block of the rational choice approach underlying antitrust law. This Feature analyzes the economic, legal, and political institutions underlying the potential rise of an incoherent consumer law and concludes that, unfortunately, there are several reasons to believe the intellectual rift shaping the development of antitrust and consumer protection will continue for some time.

Go read the whole thing.

Posted in antitrust, behavioral economics, bundled discounts, consumer financial protection bureau, consumer protection, economics, federal trade commission | Leave a Comment »

Why Don’t Judges Appoint Experts in Antitrust Cases?

Posted by Josh Wright on May 31, 2012

Judge Posner’s decision to appoint a expert in the patent dispute before him in the Seventh Circuit between Apple and Motorola has received some attention.  ABA Journal

Though Posner is an appeals judge with the Chicago-based 7th U.S. Circuit Court of Appeals, he likes to volunteer for trials, the Chicago Tribune reports. In a speech at the 7th Circuit Bar Association on Monday, Posner said the court-appointed experts could explain unclear scientific terms to jurors in the case.

“The idea of expert witness who are not beholden to the parties who can provide information to judges and juries on technical issues, I think is a terrific opportunity worth exploring,” Posner said.

In a March 10 court order (PDF), Posner endorsed another idea—a special blue-ribbon jury—to help decipher difficult patent claims in the case, the Patent Lawyer Blog has reported. Posner told lawyers he wanted the claim constructions to be “in ordinary English intelligible to persons having no scientific or technical background” since lay jurors would be deciding the case.

“There is no point in giving jurors stuff they won’t understand,” he wrote. “The jury (actual juries) will not consist of patent lawyers and computer scientists or engineers unless the parties stipulate to a ‘blue ribbon’ jury; I would welcome their doing so but am not optimistic.”

This is not a surprise.  Judge Posner has long advocated the use of court-appointed experts in his writing.  I suspect this move — a judge appointing an expert for the purpose of claim construction in a patent case — is not too unusual, but is receiving quite a bit of attention both because it is Judge Posner and because it is a high profile patent case.  John Wiley (my antitrust law professor) has an excellent article on the use of court appointed experts and other strategies for “taming scary patent cases.”

But this got me thinking about how relatively rare court appointment in antitrust cases is.  There are a handful of of anecdotal examples to be sure.  They are very familiar in the antitrust community — Alfred Kahn in New York v. Kraft General Foods, Carl Kaysen as law clerk in United Shoe Machinery — in part because of how rare a phenomenon it is.   A 2006 ABA Task Force memo discusses the pros and cons a bit, but does not reach a conclusion.  Moreover, most of the cons are generally costs of using court appointed experts: identifying a witness both parties agree to might be difficult, witnesses might not be “true neutrals,” judges might give too much deference to the opinion of the expert.  Tad Lipsky analyzes the potential for court appointed experts and other possible solutions to the increasing complexity of economic testimony in antitrust cases here.  Yet, if I’m right that this happens much more often in patent cases than it does in antitrust cases — another area of law relying upon outside disciplines (whether a technological field or economics and statistics) — it raises an interesting question as to why?  I admit I might be wrong about the empirical premise.  But it is certainly the case that court appointment is very rare in antitrust cases.

Here are a few hypotheses to explain the higher judicial demand for outside expertise in patent cases:

  • Appeal and reversal rates are higher in patent claim construction cases and reversal-averse judges want the help.
  • Judges — rightly or wrongly — have greater confidence in their ability to understand the underlying economics in a complex antitrust case than in their ability to tangle in a “hard science” discipline — is it more embarrassing to “ask for directions” in an antitrust case?
  • Closer substitutes are available for economic training for judges (e.g. the LEC Economic Institute) than for the hard science disciplines involved in patent cases
  • Other Institutional reasons: does Daubert work differently in antitrust cases than patent cases?

I’m sure there are others.  But it seems to be a potentially interesting puzzle that I’ve been thinking about for awhile.  I know we’ve got some experienced antitrust litigators and consulting economists reading.  I’d be very interested in hearing thoughts on what might explain the judicial reluctance — relative to patent cases, assume I’m right about that (and I think I am) — to appoint their own experts.

Posted in antitrust, economics | Leave a Comment »

Simpson Thacher Adds FTC’s Matt Reilly

Posted by Josh Wright on May 31, 2012

From Competition Policy International (via The Blog of Legal Times):

Matt Reilly, former Assistant Director of the Federal Trade Commission, is joining Simpson Thacher & Bartlett. Reilly will partner the firm’s Antitrust Practice and be based in its D.C. office. His move comes after 13 years at the FTC, where he was the lead litigator in high-profile cases like the agency’s challenge to the Whole Foods-Wild Oats merger. From 2007, Reilly served as head of the Mergers IV decision.

Congratulations to Matt — formerly head of Mergers IV — and to Simpson Thacher.

Posted in antitrust, federal trade commission, mergers & acquisitions | Leave a Comment »

Announcing The Journal of Antitrust Enforcement

Posted by Josh Wright on May 30, 2012

An interesting new joint venture between Oxford University Press, Ariel Ezrachi, and Bill Kovacic (GW).  Sounds like a fantastic idea and with top notch management and might be of interest to many of our readers.

The Journal of Antitrust Enforcement 

Call for Papers – The Journal of Antitrust Enforcement (OUP) Oxford University Press is delighted to announce the launch of a new competition law journal dedicated to antitrust enforcement. The Journal of Antitrust Enforcement forms a joint collaboration between OUP, the Oxford University Centre for Competition Law and Policy and the George Washington University Competition Law Center.

The Journal of Antitrust Enforcement will provide a platform for cutting edge scholarship relating to public and private competition law enforcement, both at the international and domestic levels.

The journal covers a wide range of enforcement related topics, including: public and private competition law enforcement, cooperation between competition agencies, the promotion of worldwide competition law enforcement, optimal design of enforcement policies, performance measurement, empirical analysis of enforcement policies, combination of functions in the mandate of the competition agency, competition agency governance, procedural fairness, competition enforcement and human rights, the role of the judiciary in competition enforcement, leniency, cartel prosecution, effective merger enforcement and the regulation of sectors.

Submission of papers: Original articles that advance the field are published following a peer and editorial review process. The editors welcome submission of papers on all subjects related to antitrust enforcement. Papers should range from 8,000 to 15,000 words (including footnotes) and should be prefaced by an abstract of less than 200 words.

General inquiries may be directed to the editors: Ariel Ezrachi at the Oxford CCLP or William Kovacic at George Washington University. Submission, by email, should be directed to the Managing Editor, Hugh Hollman.

Further information about the journal may be found online: http://www.oxfordjournals.org/our_journals/antitrust/

Posted in antitrust, legal scholarship, scholarship | Leave a Comment »

Apple Responds to the DOJ e-Books Complaint

Posted by Josh Wright on May 28, 2012

Apple has filed its response to the DOJ Complaint in the e-books case.  Here is the first paragraph of the Answer:

The Government’s Complaint against Apple is fundamentally flawed as a matter of fact and law. Apple has not “conspired” with anyone, was not aware of any alleged “conspiracy” by others, and never “fixed prices.” Apple individually negotiated bilateral agreements with book publishers that allowed it to enter and compete in a new market segment – eBooks. The iBookstore offered its customers a new outstanding, innovative eBook reading experience, an expansion of categories and titles of eBooks, and competitive prices.

And the last paragraph of the Answer’s introduction:

The Supreme Court has made clear that the antitrust laws are not a vehicle for Government intervention in the economy to impose its view of the “best” competitive outcome, or the “optimal” means of competition, but rather to address anticompetitive conduct. Apple’s entry into eBook distribution is classic procompetitive conduct, and for Apple to be subject to hindsight legal attack for a business strategy well-recognized as perfectly proper sends the wrong message to the market, and will discourage competitive entry and innovation and harm consumers.

A theme that runs throughout the Answer is that the “pre-Apple” world of e-books was characterized by little or no competition and that the agency agreements were necessary for its entry, which in turn has resulted in a dramatic increase in output.  The Answer is available here.  While commentary has focused primarily upon the important question of the competitive effects of the move to the agency model, including Geoff’s post here, my hunch is that if the case is litigated its legacy will be as an “agreement” case rather than what it contributes to rule of reason analysis.  In other words, if Apple gets to the rule of reason, the DOJ (like most plaintiffs in rule of reason cases) are likely to lose — especially in light of at least preliminary evidence of dramatic increases in output.  The critical question — I suspect — will be about proof of an actual naked price fixing agreement among publishers and Apple, and as a legal matter, what evidence is sufficient to establish that agreement for the purposes of Section 1 of the Sherman Act.  The Complaint sets forth the evidence the DOJ purports to have on this score.  But my hunch — and it is no more than that — is that this portion of the case will prove more important than any battle between economic experts on the relevant competitive effects.

Posted in antitrust, business, cartels, doj, economics, resale price maintenance, settlements, technology | 6 Comments »

AALS Call for Papers “Insurance and Consumer Protection Law”

Posted by Josh Wright on May 27, 2012

Call for Papers

AALS Section on Insurance Law

“Insurance and Consumer Protection”

2013 AALS Annual Meeting
January 4-7, 2013
New Orleans, Louisiana

The AALS Section on Insurance Law will hold a program on Insurance and Consumer Protection during the AALS 2013 Annual Meeting in New Orleans. The program is scheduled for Sunday, January 6, 2013, from 10:30 AM to 12:15 PM. The program will feature a panel of leading research on consumer protection and insurance markets. Panelists scheduled to participate include: Shawn Cole (Harvard Business School), Kyle Logue (University of Michigan Law School), and Lauren Willis (Loyola Law School Los Angeles). We are looking to add one additional panelist through this Call for Papers.

Submissions: To be considered, a draft paper or proposal must be submitted by email to Joshua C. Teitelbaum, Program Chair, at jct48@law.georgetown.edu. A proposal must be comprehensive enough to allow for a meaningful evaluation of the proposed paper. Submissions must be in PDF format.

Deadline: The deadline for submissions is Tuesday, September 4, 2012. Decisions will be announced by Friday, September 28, 2012.

Eligibility: Full-time faculty members of AALS member law schools are eligible to submit. Faculty at fee-paid law schools; foreign, visiting and adjunct faculty members; graduate students; fellows; and non-law school faculty are not eligible to submit. Papers may already be accepted for publication, provided that the paper will not be published before the AALS meeting.

Expenses: The panelist selected through this Call for Papers will be responsible for paying his or her own annual meeting registration fee and travel expenses.

Inquiries: Inquiries about this Call for Papers may be submitted to Joshua C. Teitelbaum, Georgetown University Law Center, jct48@law.georgetown.edu, (202) 661-6589.

Posted in consumer protection | Leave a Comment »

From the Thursday May 24 Wall Street Journal

Posted by Paul H. Rubin on May 23, 2012

In criticizing Governor Romney’s involvement with Bain Capital, President Obama commented both on private equity and on profit maximization.  Most of the comments I have seen dealt with the private equity.  I thought a comment on profit maximization was important as well.

  • OPINION
  • Updated May 23, 2012, 7:51 p.m. ET

A Tutorial for the President on ‘Profit Maximization’

Profits provide the incentive for firms to do what consumers want.

By PAUL H. RUBIN

In justifying his attacks on Bain Capital, President Obama argues that “profit maximization” might be an appropriate goal for a private-equity firm, but not for more general public policy. This argument ignores one of the most basic premises of economics.

We economists assume that firms always maximize profits, and that profit maximization by firms (all firms, not just private-equity ones) is a very good thing. But this is not because profits are in themselves good. Rather, profit maximization is good because it leads directly to maximum benefits for consumers. Profits provide the incentive for firms to do what consumers want.

Consider what contributes to profit maximization. In simple terms, profit maximization means producing the products earning the highest returns, and producing these products at the lowest possible cost. Both are socially useful behaviors that benefit consumers.

Which products produce the highest returns? The answer is the products that consumers want and are currently underproduced. If there are excess returns (profits) to be earned in some market, that is because consumers are willing to pay more for those products than the current cost of production.

Profits are earned by producing more of these products—that is, by satisfying unmet consumer demands. Profit maximization means doing the best job of satisfying these unmet demands, and so providing benefits to consumers. If the unmet demand is for a currently nonexistent product that consumers will value when it is produced (Facebook, the iPhone, Google search), then of course even more profits can be earned.

A firm such as Bain that is involved in investing capital can only make money if it succeeds in satisfying consumer demands. Of course, its goal in deciding where to invest is to maximize returns for its investors, but that is a detail. It will only succeed in this goal if it does a good job of identifying and satisfying consumer demands for products.

The second trick to maximizing profits is to reduce costs as much as possible. This may involve eliminating some unneeded resources, which may translate into unemployment in the short run. It may involve recombining resources into more productive configurations, or restructuring governance of the firm.

The immediate purpose of reducing costs is to increase the profits of investors, but the ultimate result is to benefit consumers. In the textbook ideal of a purely competitive economy, cost reductions will immediately translate into lower prices for consumers. But in any market structure—competition, monopoly or oligopoly—profit-maximizing behavior translates reduced costs into reduced prices for consumers.

Consider the converse: What if a business does not maximize profits? Then it is either not making the products that consumers want the most, or it is not producing its products at the lowest cost. In either case, consumers are harmed. Any argument against “profit maximization” is an argument against consumer welfare.

Maximizing consumer welfare is the ultimate justification for an economy. Consumers are of course also workers and voters. Contrary to President Obama’s claim, skill at profit maximization does translate directly into skill at governing the economy. Failure to understand this simplest and most basic point is probably itself enough to disqualify someone from the presidency when economic issues are paramount.

Mr. Rubin is a professor of economics at Emory University and president elect of the Southern Economic Association.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved

 

 

Posted in economics, private equity | 2 Comments »

New Technology in Europe

Posted by Paul H. Rubin on May 21, 2012

Last week the New York Times ran an article, “Building the Next Facebook a Tough Task in Europe“, by Eric Pfanner, discussing the lack of major high tech innovation in Europe.  Eric Pfanner discusses the importance of such investment, and then speculates on the reason for the lack of such innovation.  The ultimate conclusion is that there is a lack of venture capital in Europe for various cultural and historical reasons.  This explanation of course makes no sense.  Capital is geographically mobile and if European tech start ups were a profitable investment that Europeans were afraid to bankroll, American investors would be on the next plane.

Here is a better explanation.  In the name of “privacy,” the EU greatly restricts the use of consumer online  information.  Josh Lerner has a recent paper, “The Impact of Privacy Policy Changes on Venture Capital Investment in Online Advertising Companies” (based in part on the work of Avi Goldfarb and Catherine E. Tucker, “Privacy Regulation and Online Advertising“) finding that this restriction on the use of information is a large part of the explanation for the lack of tech investment in Europe.  Tom Lenard and I have written extensively about the costs of privacy regulation (for example, here) and this is just another example of these costs, although the costs are much greater in Europe than they are here (so far.)

Posted in advertising, consumer protection, intellectual property, privacy, regulation, technology | Leave a Comment »

A Two-Tier Plan By Any Other Name?

Posted by Michael Sykuta on May 21, 2012

Paul Fain has an interesting update today on the issue of two-tier pricing for California’s community college system. Santa Monica College rocked the boat in March when it announced plans to start using a two-tier pricing schedule that would charge higher tuition rates for high-demand courses.

Santa Monica–and most all community colleges in California apparently–have been slammed with would-be students looking to take classes that would help prepare them for better jobs or for further education and training (that would prepare them for better jobs).  The problem is that state funding for community colleges has been drastically reduced, thereby limiting the number of course offerings schools can offer at the subsidized tuition rate of $36 per credit hour. Santa Monica had the radical idea (well, radical for anyone that fails to understand economics, perhaps) of offering additional sections of high-demand courses, but at full-cost tuition rates (closer to $200 per credit hour).

Students protested. Faculty at other community colleges complained. Santa Monica College relented. So students don’t have to worry about paying more for courses they will not be able to take and faculty at other colleges don’t have to worry about the possibility of more students wanting to go to their schools because the overflow tuition at Santa Monica drives students to find substitutes. Well, that, and no more worries for those faculty at schools who charge even more than $200 for students to get those core courses that they cannot get into at their community college. It didn’t matter much anyhow, since most agreed that Santa Monica College’s proposal would have violated the law.

Now there is a proposal before the California legislature that would allow schools to implement two-tier pricing, but only for technical trade courses, not for high-demand general education-type courses.

Aside from complaints that “the state should be giving away education–even if they are not” (which are the most inane because they have nothing to do with the issue at hand), there are a few other arguments or positions offered that just cause one to scratch one’s head in wonder:

1) Fain reports that Michelle Pilati, president of the Academic Senate of California Community Colleges, asserted that “two-tiered tuition is unfair to lower-income students because it would open up classes to students who have the means to pay much more.” Apparently, Ms. Pilati would prefer all students have equal access to no education than to open up more spaces (to lower-income students) by opening up more spaces to higher-income students at higher prices. Gotcha.

2) The Board of Trustees at San Diego Community College seems to agree, having passed a resolution opposing the proposed legislation because it “would limit or exclude student access based solely on cost, causing inequities in the treatment of students”. Apparently the inequity of some students getting an education and some not is more noble because explicit out-of-pocket costs are not involved and other forms of rationing are used. And yet…

3) According to Fain,  Nancy Shulock, director of the Institute for Higher Education Leadership and Policy at California State University at Sacramento, asserts “wealthier students have a leg up when registering for courses. She said research has found that higher-income students generally have more ‘college knowledge’ that helps them navigate often-complex registration processes. That means wealthier students could more quickly snag spots in classes, getting the normal price, while their lower-income peers would be more likely to pay the higher rates under a two-tiered system.”

So, community colleges have created overly complex registration systems that disadvantage lower-income students. Yet, all that suggests is that the current system already punishes lower-income students because wealthier students can more easily “snag” the limited number of subsidized sections. Perhaps community colleges could make their enrollment processes less complex?

Regardless the fate of the “two-tier pricing” legislation, there is already a two-tier system in place; only the current two-tier plan prevents people from getting educations at any price.

Posted in Education, higher education, markets, Sykuta | Leave a Comment »

New Online Submission Website For Supreme Court Economic Review

Posted by Josh Wright on May 15, 2012

I am the co-editor of the Supreme Court Economic Review, a peer-review publication that is one of the country’s top-rated law and economics journals, along with my colleagues Todd Zywicki and Ilya Somin.  SCER, along with its publisher, the University of Chicago Press, have put together a new submissions website.  If you have a relevant submission, please submit at the website for our review.

Posted in economics, law and economics, legal scholarship, scholarship, Supreme Court | Leave a Comment »

 
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