bluuebunny/crossref_metadata_2025 huggingface dataset:
Review of the genus Parerigone Brauer (Diptera: Tachinidae) with five new species from China
Authors: WANG QIANG , ZHANG CHUNTIAN , WANG XINHUA
Published: February 2015

The genus Parerigone (Diptera, Tachinidae) is reviewed. Five new species from China, P. atrisetosa sp. nov., P. flava sp. nov., P. flavisquama sp. nov., P. laxifrons sp. nov. and P. wangi sp. nov., are described and illustrated. Parerigone flavihirta (Chao & Sun) is proposed as a new synonym of P. takanoi Mesnil. Diagnosis of species examined and a key to the 15 species of Parerigone are provided.
Three new species of Anatkina Young (Hemiptera: Cicadellidae: Cicadellini) from China, with a key and checklist of known Chinese species of the genus
Authors: YANG MAO-FA , MENG ZE-HONG , YU XIAO-FEI
Published: February 2015

Three new species of the genus Anatkina Young, 1986 from China are described and illustrated: A. leishanensis sp. nov., A. alata sp. nov. and A. zhangi sp. nov. The type specimens of the new species are deposited in the Institute of Entomology, Guizhou University, Guiyang, China. In this paper, A. reticulosa Kuoh, 1993 and A. basimacula Kuoh, 1993 are placed as junior synonyms of A. infecta (Distant, 1908) and A. vespertinula (Breddin, 1903), respectively; A. inflammata (Distant, 1908) is recorded as new for China. A key and checklist of all Chinese species of the genus are provided.
A review of the genus Elephantomyia Osten Sacken from China, with descriptions of two new species (Diptera, Limoniidae)
Authors: ZHANG XIAO , LI YAN , YANG DING
Published: February 2015

The genus Elephantomyia from China is reviewed. Two species, E. laohegouensis sp. nov. and E. tianmushana sp. nov., are described as new to science. One species, E. inulta Alexander, 1938, is recorded for China for the first time. Seven known Chinese species/subspecies are redescribed and illustrated. A key to the species of the genus Elephantomyia from China is given.
Revision of Campsurus violaceus species group (Ephemeroptera: Polymitarcyidae) with new synonymies and nomina dubia in Campsurus Eaton, 1868
Authors: MOLINERI C. , SALLES F. F. , EMMERICH D.
Published: February 2015

The violaceus species group (formerly notatus species group) of Campsurus Eaton is revised. All the species in the violaceus group are diagnosed. A new species, C. molinai sp. nov. is described based on male imagos from Bolivia, characterized by their large and sclerotized penes. The violaceus group is proposed to include the following species: C. assimilis Traver, C. truncatus Ulmer (=C. mahunkai Puthz = C. melanocephalus Pereira & da Silva, new synonyms), C. violaceus Needham & Murphy (= C. meyeri Navás = C. notatus Needham & Murphy = C. paranensis Navás, new synonyms), C. emersoni Traver, C. decoloratus (Hagen), and C. molinai sp.nov. Additionally we consider the following species as nomina dubia: C. longicauda Navás, C. pfeifferi Navás, C. zikani Navás, C. albicans (orig. Ephemera albicans Percheron in Guerin & Percheron), C. burmeisteri Ulmer, C. dallasi Navás, C. quadridentatus Eaton, C. claudus Needham & Murphy, C. corumbanus Needham & Murphy, C. dorsalis (Burmeister), C. mutilus Needham & Murphy, and C. striatus Needham & Murphy. Given the results presented herein (five species synonymized and 12 proposed as nomina dubia), only 28 valid species remain in the genus Campsurus. Additionally, the nymphal stages of C. violaceus and C. truncatus are described and illustrated. Female adult genitalia (sockets) and eggs of C. decoloratus are described for the first time. Diagnoses, new country records, and redescriptions of selected characters of the imagos for the species of the violaceus group are given.
A new species of glassfrog, genus Hyalinobatrachium (Anura: Centrolenidae), from the Caribbean foothills of Costa Rica
Authors: KUBICKI BRIAN , SALAZAR STANLEY , PUSCHENDORF Robert
Published: February 2015

We describe a new glassfrog belonging to the genus Hyalinobatrachium from the tropical wet forests and premontane rainforests of the Caribbean foothills of Costa Rica, at elevations between 400–800 m. The type locality is approximately 4km west of Santa Clara, ca. 400 m a.s.l. (N 10.219, W 83.949). This new taxon is distinguished by its morphological characteristics, distinct advertisement call, and genetic distance (COI mRNA). The new species can be distinguished from other species of the genus Hyalinobatrachium by the combination of the following characters: (1) snout truncate in dorsal and lateral views; (2) granular dorsal skin; (3) parietal and cardial peritonea transparent; (4) hand webbing formula III 2-–2+ IV; (5) in life having a uniform lime green dorsal surface that lacks any evident light or dark spots; (6) iris coloration silvery-white with fine dark spots or reticulation; (7) advertisement call consisting of a single tonal long metallic whistle-like note with a duration of 0.40–0.55 s (average 0.501 s) and a dominant frequency of 3.35–3.44 kHz (average 3.39 kHz); (8) highly divergent DNA sequences for the mitochondrial gene COI from other analysed members of the genus Hyalinobatrachium, with 12.4% divergence from its closest known species, Hyalinobatrachium chirripoi.
Intra- and inter-population polymorphism in Coletinia maggii (Grassi, 1887) (Zygentoma: Nicoletiidae), an inhabitant of soil, mesovoid shallow substratum (MSS) and caves—A challenge for the strict classification of subterranean fauna?
Authors: GILGADO JOSÉ D. , ORTUÑO VICENTE M.
Published: February 2015

New locations of Coletinia maggii (Grassi, 1887) have been discovered in the center of the Iberian Peninsula in different types of subterranean environments, such as a stony layer in the subsoil of an alluvial plain, an alluvial Mesovoid Shallow Substratum or Milieu Souterrain Superficiel (MSS) and a gypsum cave. This is the first record of both an alluvial MSS in the center of the Iberian Peninsula and of a subterranean species living in it. The high number of specimens captured allowed the first detailed study of the morphological intra- and inter-population variations of this species. The implications of its presence in these different environments, its wide distribution area across Europe, and the relevance of the morphological variation in the characters for the taxonomy of this species are discussed. Based on the results, Coletinia hernandoi Molero, Bach & Gaju, 2013 is proposed as a new synonym of C. maggii.
Revision of the African pollen beetle genera Tarchonanthogethes and Xenostrongylogethes, with insect-host plant relationships, identification key, and cladistic analysis of the Anthystrix genus-complex (Coleoptera: Nitidulidae: Meligethinae)
Authors: AUDISIO PAOLO , CLINE ANDREW R. , TRIZZINO MARCO , MANCINI EMILIANO , ANTONINI GLORIA , SABATELLI SIMONE , CERRETTI PIERFILIPPO
Published: February 2015

The Afrotropical endemic pollen beetle genera Tarchonanthogethes Audisio & Cline and Xenostrongylogethes Audisio & Cline, of the Anthystrix genus-complex, are revised. Eleven new species of Tarchonanthogethes (T. autumnalis, sp. nov., T. bisignatus, sp. nov., T. fasciatus, sp. nov., T. gratiellae, sp. nov., T. hermani, sp. nov., T. hystrix, sp. nov., T. lilliputianus, sp. nov., T. maasai, sp. nov., T. manconiae, sp. nov., T. pectinipes, sp. nov., T. thalycriformis, sp. nov.) and one new Xenostrongylogethes (X. cychramoides, sp. nov.) are described, illustrated and compared with related taxa. Tarchonanthogethes hirtus Kirejtshuk & Easton, 1988 is synonymized with T. martini (syn. nov.). Meligethes assutus Easton, 1960 from Kenya is transferred from Afrogethes Audisio & Cline to Tarchonanthogethes (comb. nov.). Meligethes singularis Grouvelle, 1919 from southern Africa is transferred from Tarchonanthogethes to Meligethinus Grouvelle, 1906 (comb. nov.). Larval host-plants for Tarchonanthogethes and Xenostrongylogethes include dioecious bushes and trees of Tarchonantheae Asteraceae (genera Brachylaena R.Br. and Tarchonanthus L.). All species currently attributed to the genera Anthystrix Kirejtshuk, Sebastiangethes Audisio, Kirk-Spriggs & Cline, Tarchonanthogethes and Xenostrongylogethes (Anthystrix genus-complex) are included in a morphology-based cladistic analysis to provide a rigorous hypothesis of phylogenetic relationships. An identification key to all 25 known species in the Anthystrix genus-complex, including all available data on insect host plant relationships, is presented.
Constraining Supersaturation and Transport Processes in a South American Cold-Air Outbreak Using Stable Isotopologues of Water Vapor
Authors: Galewsky Joseph
Published: February 2015

In situ measurements of water vapor isotopic composition from the subtropical Chilean Andes, supported by mesoscale model simulations and diagnostic analyses, document the processes governing the transport of dry air and isotopically depleted water vapor from the midlatitudes into the subtropics during a South American cold-air surge in July 2014. On 23 July 2014, temperatures on the Chajnantor Plateau reached −18°C, among the lowest temperatures on record for the site. On 26 July 2014, water vapor δD and δ18O reached a low of −538 ± 1.6‰ and −71.7 ± 0.2‰, among the lowest values on record. Numerical simulations show that the dynamics of the event were consistent with previous studies of South American cold-air outbreaks. Back-trajectory analyses show that the isotopically depleted water vapor that reached Chajnantor on July 26 was last saturated over the South Pacific on July 23 at 300 hPa at a temperature of about −50°C under ice supersaturation with RHice of about 110%. The water vapor traveled to Chajnantor along a nearly isentropic path following saturation. Modeling of the isotopic data require condensation at temperatures between −50°C and −53°C under supersaturation with RHice between 112% and 118%, followed by less than 25% moistening during transport. These results show that measurements of water vapor isotopic composition can provide observational constraints on in-cloud processes that influence the humidity of the subtropics.
Analysis of the Relative Operating Characteristic and Economic Value Using the LAPS Ensemble Prediction System in Taiwan
Authors: Chang Hui-Ling , Yang Shu-Chih , Yuan Huiling , Lin Pay-Liam , Liou Yu-Chieng
Published: February 2015

Measurement of the usefulness of numerical weather prediction considers not only the forecast quality but also the possible economic value (EV) in the daily decision-making process of users. Discrimination ability of an ensemble prediction system (EPS) can be assessed by the relative operating characteristic (ROC), which is closely related to the EV provided by the same forecast system.

Focusing on short-range probabilistic quantitative precipitation forecasts (PQPFs) for typhoons, this study demonstrates the consistent and strongly related characteristics of ROC and EV based on the Local Analysis and Prediction System (LAPS) EPS operated at the Central Weather Bureau in Taiwan. Sensitivity experiments including the effect of terrain, calibration, and forecast uncertainties on ROC and EV show that the potential EV provided by a forecast system is mainly determined by the discrimination ability of the same system. The ROC and maximum EV (EVmax) of an EPS are insensitive to calibration, but the optimal probability threshold to achieve the EVmax becomes more reliable after calibration. In addition, the LAPS ensemble probabilistic forecasts outperform deterministic forecasts in respect to both ROC and EV, and such an advantage grows with increasing precipitation intensity. Also, even without explicitly knowing the cost–loss ratio, one can still optimize decision-making and obtain the EVmax by using ensemble probabilistic forecasts.
The plight of online retailers in the aftermath of Leegin: An economic analysis
Authors: Blair Roger D. , Haynes Jessica S.
Published: February 2015

In this article, we provide an economic analysis of Leegin's impact on online discounters, specifically those who rely on discounting as an essential component of their business model. We begin with a brief discussion of Dr. Miles, Colgate, and the resulting search for proof of agreement. This leads us into an examination of the Leegin decision and its consequences for antitrust policy. We then review the economics of RPM when used for promotional purposes. We follow this with a discussion of the characterization of RPM in two recent complaints filed by online retailers. In light of ongoing litigation, we offer a suggestion for how the courts should deal with RPM. The key is to determine whether RPM is used to support a cartel or to promote the product. Finally, we address some residual concerns about the competitive effects of RPM.
Resale Price Maintenance: The Internet Phenomenon and Free Rider Issues
Authors: Lao Marina
Published: February 2015

This article looks at Internet retailing and the free rider justification often asserted for resale price maintenance (RPM). It argues that the case for RPM as a means to control free rider problems is not strengthened by the advent of Internet retailers. While the Internet may increase the occurrence of free riding for some products, it may also reduce it for others. In fact, recent marketing studies tend to dispel the popular perception that Internet retailers are frequent free riders and that free riding is necessarily harmful. These new insights call into question the general assumption that free riding must be discouraged. But even if we view free riding from a conventional perspective, RPM may not be the most effective way to induce retailer services. In view of the many benefits of Internet retailing, antitrust law should disfavor a trade restraint that inhibits its growth, such as RPM, if there are alternative means of promoting retailer services that do not present similar risks. Promotional allowances could be such an alternative. The article concludes by explaining why a full rule of reason analysis is unworkable and suggests a rebuttable presumption of illegality as an alternative approach.
Merger to Monopsony: An Efficiencies Defense
Authors: Blair Roger D.
Published: February 2015

In a classic article, Oliver Williamson introduced the efficiency defense to antitrust merger analysis. In this article, I extend his analysis to mergers among buyers that may create monopsony power. When such mergers are accompanied by merger-specific efficiencies, there is necessarily a welfare tradeoff. Evaluating the impact of the merger on social welfare requires a comparison of the cost savings that can be realized only without the merger and the allocative inefficiency due to the exercise of monopsony power.
Guidance on Abuse in Europe: The Continued Concern for Rivalry and a Competitive Structure
Authors: Marsden Philip , Gormsen Liza Lovdahl
Published: February 2015

Both the United States and the EU allegedly protect the competitive process through an effects-based approach to the analysis of exclusionary abuses. Importantly though, each jurisdiction starts from a different end of the spectrum. The article finds that while U.S. antitrust appears to protect the competitive process to enhance consumer welfare in the form of allocative and productive efficiency, EU competition law protects the structure of competition to protect rivalry. When applying Article 102 TFEU, the European Commission and the courts rely on two presumptions that hearken back to Ordoliberalism. The existence of dominance creates a presumption of harm to the structure of competition (foreclosure), and that harm to the structure of competition in turn creates a presumption of likely harm to consumers (anticompetitive foreclosure). These presumptions are apparent in case law as well as the Commission's Guidance Paper on Article 102. This article concludes that despite having the same aim, there is still a transAtlantic divide about how best to protect the competitive process.
Will Efficiencies Play an Increasingly Important Role in the Assessment of Conduct under Article 102 TFEU?
Authors: Bellis Jean-François , Kasten Tim
Published: February 2015

This article addresses the role of efficiencies in abuse of dominance cases in the European Union. After briefly examining how efficiencies have previously been taken into account in the decisional practice of the European Commission and the case law of the European Courts, this article reviews the two-step approach set out in the recently adopted Guidance Paper on Abusive Exclusionary Conduct. In essence, this test provides that the European Commission will first explain how the allegedly abusive conduct is likely to restrict competition and thereby harm consumers, following which the undertaking concerned will be entitled to rebut the finding by showing that the conduct creates efficiencies that leave consumers overall better off than before. The article then questions whether the Guidance Paper is likely to significantly increase the role that efficiencies will play in future cases, concluding that significant changes are unlikely.
For Welfare's Sake? Balancing Rivalry and Efficiencies in Horizontal Mergers
Authors: Oldale Alison , Padilla Jorge
Published: February 2015

There has been an extensive debate about whether the proper objective of merger control should be long run consumer welfare or long run total welfare. We review the various arguments that have been put forward to justify the use of a consumer welfare standard and find none of them convincing. However this debate risks missing the point. Maximizing long run total welfare may be a suitable objective for governments enacting merger control legislation. But the long run effects of a merger are often too complex for this to serve as a practical guide to decision making. Instead, competition authorities are usually given a target related to competition, allowing for some consideration of efficiencies. In practice this target is often interpreted as a focus on the short term effects on consumers, so that efficiencies count only to the extent that benefits are passed on. The real debate is not about the objective of merger control, but about whether this is the right target.
The Systems Approach to Antitrust Analysis
Authors: Rubin Jonathan L.
Published: February 2015

Keeping pace with new and evolving features of industrial markets, and arriving at policies that strike an appropriate relationship between market oversight and private enterprise, will require new approaches to the legal analysis of impediments to competition. The use of control over system modularity and interface access policy by platform or network operators to restrict competition in adjacent or complementary markets is a competitive restraint deserving of modernized legal analysis. Although platform operators seek to capture the efficiencies of system modularity in upstream production, they frequently adopt policies that impede the ability of customers and end-users to benefit from modularity in downstream distribution and sales. Unfortunately, traditional anticollusion and antimonopolization law remains ill equipped to address overly restrictive conduct by platform operators. Historically, tying law provided a useful legal framework for the analysis of systems issues, but current doctrine fails to deliver a coherent antitrust approach, as illustrated by a discussion of two recent cases.
Automotive Aftermarkets: A Case Study in Systems Competition
Authors: Hawker Norman W.
Published: February 2015

As automobiles have become more durable and complex, manufacturers have denied access to parts, information, and training to anyone but authorized dealers. Increased intellectual property law protection has greatly contributed to these developments. This article examines the aftermarket for collision repair parts and the aftermarket for maintenance and repair services, and finds that problems such as consumer myopia and third-party payers keep consumers from factoring the total cost of ownership into the price of an automobile. Even robust competition in the primary market for new automobiles may not inhibit manufacturers from reaping monopoly profits in these aftermarkets. Potential solutions to these issues in the aftermarket for maintenance and repair services may be found in mandating access for independent service providers. In the aftermarket for collision repair parts, a potential solution may be found by creating an exception to design patent law for third-party collision repair parts.
Atale of Two Cities: Brussels, Washington, and the Assessment of Unilateral Conduct
Authors: Abbott Alden F.
Published: February 2015

Achieving convergence between American and European competition law approaches to the assessment of single firm conduct (SFC) would reduce costly business uncertainty and promote beneficial commercial activity. In 2009, the European Commission issued formal guidance on its analysis of SFC; a 2008 Justice Department Report on SFC was critiqued by the Federal Trade Commission and withdrawn in 2009. Although withdrawal of the Justice Department Report may have narrowed the perceived gap between American and European SFC policy (and reduced potential tensions between Justice Department and FTC approaches), it has not fully eliminated it. Steps that might be taken to bridge this gap include framing bilateral discussion in commonly accepted economic terms; working toward a common understanding of balancing tests; seeking to establish consensus approaches to particular practices; analyzing the centrality to the competitive process of conduct under scrutiny; taking into account the most recent findings from economic research; and cooperating in investigations. Although not a panacea, these and similar approaches should lead to greater consistency between U.S. and European enforcement policy and thereby promote welfare.
Effective Market Shares and Antitrust
Authors: Weisman Dennis L.
Published: February 2015

This article extends the single-market measure of market power to a multimarket setting in order to develop the concept of effective market share—what the market share of the hypothetical, single-market firm would have to be to exercise the same degree of market power as the actual, multimarket-dominant firm. This approach yields four main findings. First, traditional market power measures tend to overstate (understate) market power in the case of net complements (substitutes). Second, cost complementarities compound the effects of demand complementarities in tempering the dominant firm's market power. Third, the errors in measuring market power are asymmetric: policy makers are more likely to conclude that market power is present when it is absent than to conclude that market power is absent when it is present. Fourth, effective market shares facilitate more reliable inferences about market power and hence fewer errors in adjudicating merger and deregulation cases.
Cartel Deterrence: The Search for Evidence and Argument
Authors: Harding Christopher
Published: February 2015

Discussion and argument concerning the deterrent impact of anticartel enforcement measures have gained in significance and controversy as the whole regulatory enterprise and rhetoric of cartel regulation has expanded and developed. Regulators have become ever more emphatic in the denunciation of business cartels, and deterrence has therefore assumed a significant role in the justification of a stronger and more determined effort of legal control. In particular, cartelists need to be deterred into whistle blowing for leniency programs to work, and businesses need to be deterred into compliance to achieve the ultimate regulatory goal. Deterrence (rather than, for instance, economic redistribution or retributive justice) then becomes a leading, perhaps the leading objective within the legal control of cartels. Yet claims of deterrent effect are notoriously difficult to measure and assess. The discussion here examines the underlying problems of penetrating and measuring the deterrent impact of anticartel policies and sanctions and considers the possible methodologies for assessing deterrence in this context.
The Predictive Power of Merger Analysis
Authors: Kirkwood John B.
Published: February 2015

This article looks first at the process courts use to resolve merger challenges and finds that in the area of product market definition, merger analysis is reasonably strong. Market definition remains complex and subjective, however, and could be improved, or avoided altogether, through econometric techniques such as merger simulation. Judicial analysis of entry is much weaker. Courts ask whether the market is protected by entry barriers but rarely ask whether the barriers are high enough to make entry unprofitable.

The article also examines the results of “marginal” mergers, mergers that would have been blocked had the government and courts been somewhat more aggressive. Measured in this way, merger analysis is not seriously off target: the merger retrospectives find that very few transactions led to sharp price changes. They also find, however, that a large proportion of marginal mergers resulted in small price increases, which suggests that in appropriate cases, enforcement agencies and courts should be more willing to predict anticompetitive effects.
Civil Liberties and Competition Policy: A Personal Essay Dedicated to John J. Flynn
Authors: Foer Albert A.
Published: February 2015

Competition policy, comprising statutory and regulatory initiatives such as antitrust and sectoral regulation, is capable of both supporting and undermining rights that are protected by the Constitution. This essay is dedicated to Professor John J. Flynn, who was particularly concerned with the ways in which both governmental and private power can stifle individual human needs. The essay provides observations on the relationship between civil liberties and competition policy in a variety of contexts, particularly focusing on commercial speech. It argues that civil liberties and competitive markets are generally consistent and even mutually supportive, but that the shared underlying value of choice is endangered where there is a high level of market concentration.
Introduction: The Use and Abuse of Voluntary Standard-Setting Processes in a Post-Rambus World: Law, Economics, and Competition Policy
Authors: Besen Stanley M. , Levinson Robert J.
Published: February 2015

This special symposium issue of The Antitrust Bulletin addresses two related issues of competition policy in the digital age. The first is whether patent holders can distort voluntary standard-setting processes in ways that allow them to obtain and exercise market power. Such conduct would lead to higher intellectual property royalties for technologies that are used in standards-based products and higher prices for those products. By changing the returns to innovative activity, for both licensees and patentees, this conduct may also distort the timepaths of technological change. The second issue is what, if anything, should be done to prevent this type of anticompetitive behavior from occurring and what to do when it arises. The articles in this symposium address these issues from a variety of perspectives.
Learning from Rambus—How to Tame Those Troublesome Trolls
Authors: Culley Daniel , Dhanani Malik , Dolmans Maurits
Published: February 2015

The debate over using antitrust enforcement to prevent patent hold-up remains unresolved. The U.S. Court of Appeals muddied the waters in Rambus, and the European Commission decision clarified only little. The Broadcom v. Qualcomm case offers mere ad hoc solutions for standard setting, leaving trolls untroubled. We suggest a return to fundamentals. “Skillful silence” to lure an industry into a lock-in, creating opportunities for hold-up to extract unfair royalties, serves no procompetitive purpose and is not “competition on the merits.” Antitrust law itself should in certain cases create a “duty to alert” manufacturers to patents that are not subject to a promise to license on FRAND terms (or a ban on concealing them). Excessive pricing after hold-up could also be curbed under Article 102(a) TFEU and in certain cases under section 5 of the U.S. FTC Act, limiting patent damages to ex ante value of the technology. This would untether the law from the particular context of SSOs, addressing hold-up more completely and uniformly.
Promoting Competition Policy Abroad: European Union Efforts in the Developing World
Authors: Doleys Thomas J.
Published: February 2015

This articles surveys EU efforts to promote competition rules and practices to countries of the developing world. Two modalities stand out. First, the EU uses bilateral and regional agreements as vehicles to promote the observance of rule frameworks that mirror closely core EU treaty competition provisions. The objective is to encourage closer alignment of foreign rules and practices with those of the EU. Second, EU authorities promote competition policy through enforcement cooperation agreements. Though not addressing directly the composition of rules, the agreements seek to more closely align enforcement expectations to reduce the risk of, and costs associated with, interjurisdictional conflict. In addition to highlighting policy promotion efforts, the article notes the varying degrees to which the EU has been able to shape foreign rules and practices. The article concludes by examining two factors that account for this variation— the scope of political-legal integration and the degree of market dependence.
In Defense of Market Definition
Authors: Coate Malcolm B. , Simons Joseph J.
Published: February 2015

Market definition, a concept that has long served to structure competitive analysis, is under assault from theoreticians who object to the inability of the standard analysis to define a market compatible with their models of unilateral effects. Although these unilateral models have not been shown to reliably predict competitive behavior in the real world, our article raises other concerns associated with substituting a unilateral effects models for market definition. We suggest that the criticisms of market definition are misplaced, because the theoretical analyses lack the benchmarks necessary to establish findings of monopoly power. Moreover, market analysis serves to build the foundation for a case-specific competitive analysis that reaches well beyond the confines of any one particular economic model. Market definition, structured by the hypothetical monopolist test and implemented with critical loss analysis, remains a valuable tool for antitrust analysis. Examples are provided for market definitions in homogeneous goods, static differentiated goods, and dynamic differentiated goods structures.
Why One Should Never Define Markets or Use Market-Oriented Approaches to Analyze the Legality of Business Conduct under U.S. Antitrust Law: My Arguments and a Critique of Professor Kaplow's
Authors: Markovits Richard S.
Published: February 2015

In 1978, I published an article demonstrating that, for two reasons, one should never use market-oriented approaches to determine the legality of business conduct under either the Sherman Act's specific-anticompetitive-intent test or the Clayton Act's lessening-competition test: (1) market definitions are inherently arbitrary, not just at their periphery but more comprehensively, and (2) data on the non-market-aggregated parameters that market-oriented antitrust legality analyses use to define markets have more legally relevant predictive power than data on any market-aggregated parameters could have. In 2010, Professor Louis Kaplow published an article claiming that one should never define markets to measure a firm's economic power. Although Kaplow's asserted conclusion follows from my 1978 article's arguments, Kaplow's article includes a lengthy footnote denigrating my 1978 article. My current article (1) delineates slightly improved versions of the two arguments for my 1978 article's ultimate conclusion, (2) explains why Kaplow's narrower conclusion is implied by those arguments, (3) delineates and criticizes Kaplow's purported arguments for his conclusion, and (4) demonstrates that all of Kaplow's criticisms of my 1978 article are unjustified.
Dual Distribution Restraints: Insights from Business Research and Practice
Authors: Gundlach Gregory T. , Loff Alex G.
Published: February 2015

Under dual distribution a manufacturer sells through both independent and vertically integrated channels of distribution. The hybrid nature of these arrangements has led to persistent questions in antitrust relating to the use and effects of dual distribution restraints. To date, two schools of antitrust thought have emerged. Recent changes in the law, together with the growing use of dual distribution in practice, have called attention to these questions and the views of the two schools. Addressing both, the relevant literature from business research and practice are gathered and examined. The findings support aspects of each school, but challenge others, especially those that address free riding, in important ways. Together the findings augment extant understanding of dual distribution restraints in antitrust.
Taking Antitrust to Patent School: The Instance of Pay-For-Delay Settlements
Authors: Peritz Rudolph J.R.
Published: February 2015

The essay develops a new approach for antitrust analysis of pay-for-delay settlements in pharmaceutical patent infringement cases, an approach that shows them to be presumptively prohibited agreements in restraint of competition. The issue is timely in light of Watson Pharmaceuticals v. FTC, a case now pending before the Supreme Court; the decision below is one in a line of antitrust cases concluding that the settlement agreements are legal per se so long as their pay-for-delay provisions fall “within the scope of the patent.” The essay explains why proper antitrust analysis calls for separate attention to the scope of the injunction remedy and then shows how antitrust approval of pay-for-delay provisions entails satisfaction of the Supreme Court's traditional test for the injunction remedy in patent infringement cases set out in the landmark eBay decision. Along the way, the essay briefly describes how the economics of patent law, rightly understood, supports the eBay test's application in the antitrust analysis of cases like Watson.
Survey of International Jurisdictions Providing for Judicial Merger Prohibition Decisions
Authors: Schlossberg Robert S. , Alderman Karen
Published: February 2015

The overwhelming majority of jurisdictions that have some form of merger litigation follow the European Commission model in which the agency itself can prohibit the transaction, but that decision can be appealed. However, as in the United States, in eight jurisdictions the agency itself cannot prohibit a transaction but must seek judicial intervention to do so. In this general survey article, we provide an overview of merger litigation in Austria, Chile, Finland, New Zealand, and Sweden; we do not address Australia, Canada, and South Africa, because in-depth articles on these jurisdictions are found elsewhere in this symposium.
The Australian Merger Process: Challenges to ACCC Views on Mergers by Litigation and in an Administrative Context
Authors: Guirguis Ayman , Flitcroft Richard , Godden Sarah
Published: February 2015

Australia has a voluntary premerger notification regime, administered by a well-resourced and proactive antitrust authority, the Australian Competition and Consumer Commission (the ACCC). The Merger Guidelines recommend that business should seek clearance from the ACCC in the event that the postmerger market share of the merged entity is greater than twenty percent. After appropriate investigation and market inquiries, the ACCC can clear a transaction relatively promptly. If it has concerns with a proposal, it has extensive investigatory powers, which can result in a lengthy second phase process that has no statutory time limit. Ultimately, if the ACCC has concerns with a merger, it will commence proceedings in court to restrain its completion or seek divestiture of the acquired shares or assets.
Judicial Review of Mergers in the EU
Authors: Renshaw Andrew , Blockx Jan
Published: February 2015

The European Commission plays the most prominent role in European merger review, and judicial review of Commission decisions is rare. Despite this, European courts have an essential function in the merger review system in the European Union, both as guarantors of procedural rights and as a vector for the development of the law. This article discusses the procedural aspects of this judicial review, such as when an application can be brought, by whom, and against which decisions, and specific procedures such as interventions, interim relief, expedited procedures, and appeals. We also address the substance of the European courts' review, in particular on which grounds a Commission decision can be challenged. The article furthermore discusses the consequences of judgments, including the possibility of obtaining damages. We conclude by proposing a possible avenue to improve the process.
How Regulating Risk and Eschewing Competition Can Ameliorate a Global Financial Crisis: Canada's Perspectives and Experiences
Authors: Baron Joanna R.
Published: February 2015

This article identifies several key aspects of the Canadian banking regulatory regime that contribute to its stability. At the same time, it calls into question the current consensus that Canadian banking governance has been uniformly more heavily regulated than that of the United States. It is not the quantity of regulation that matters, but rather the quality. After all, the agents at the heart of the crisis in the United States were themselves highly, if inappropriately, regulated. The banks disclosed the types of instruments they used and quantified their risks. The article proceeds in a context of the overarching question of the ostensible trade-off between financial sector entrepreneurship and innovation on the one hand and stability in banking policy on the other, calling into question the assertions of law-and-economics jurists who argue that the true cost of stability in the financial sector is a less competitive and less dynamic capital market.
Some Historical Remarks on American and Canadian Banking Reform
Authors: Mrejen Tara
Published: February 2015

This article makes several historical remarks on the structural differences between the Canadian and American banking systems. It argues that consideration of the context, form, and substance of banking legislation can help determine the distinct regulatory culture of legislative reform; in comparison to the United States, Canada's response to financial crisis is noticeably conservative. Part II of the article characterizes the regulatory steps taken by both countries during the years 1933–35. Part III provides basic background to the current banking legal regime in Canada; a discussion of the dual banking system in the United States is beyond the scope of this article. Part IV concludes by discussing the global financial crisis in 2008 and contemplates whether several themes from 1933–35 resurface despite legislative development throughout the historical period. The historical approach highlights Canada's distinctive legacy of commercial banking regulation, which perhaps is still pertinent today when comparing banking laws, their enforcement, and their general impact on the respective economies.
Competition Policy and “Too Big” Banks in the European Union and the United States
Authors: Foer Albert A. , Resnikoff Don Allen
Published: February 2015

This article examines the role of antitrust and competition policy in regulation of large banks made fragile by the financial meltdowns of 2007–09. We compare crisis-related regulation in the European Union and the United States and find that in the European Union, competition policy experts played a key role in applying crisis-related financial regulation, but in the United States they did not. Consequentially, the European Union avoided making banks bigger as a side effect of making weak banks stronger. In the United States, bank consolidation was encouraged. We argue that in the United States, policies to preserve competition should be given a more significant role and made part of an on-going plan that will apply even in a time of crisis. At minimum, the Antitrust Division of the Justice Department should be promptly consulted by the prudential regulators of financial institutions on all matters likely to substantially affect the structure of the financial services industry, including market power issues.
Economics in Merger Analysis
Authors: Rosch J. Thomas
Published: February 2015

Economists have had success in describing a coherent—if not always accurate—framework for analyzing antitrust issues using price theory. This framework borrows heavily from neoclassical assumptions. Post—Chicago school analysis just expands conduct based on price theory to include some predatory conduct. Now it is time to look at nonprice considerations. The 2006 Merger Commentary explored this subject in some detail. The 2010 Horizontal Merger Guidelines went further—but not far enough in the author's estimation. They do not incorporate the learning associated with behavioral economics, for example. The FTC is the ideal institution for exploring this subject since it has both a Consumer Protection Bureau and a Competition Bureau.
Unresolved Questions Relating to Market Definition in Hospital Mergers
Authors: May Sean , Noether Monica
Published: February 2015

It is generally recognized that market definition by itself does not provide guidance regarding the likely competitive effects of a merger, but, rather, provides the framework in which to assess the likelihood that a merger will facilitate the anticompetitive exercise of market power. Due to academic scholarship and to work by the FTC to attempt to assess the “direct effects” of consummated hospital mergers, market definition has become a less contentious and dispositive issue in the antitrust assessment of hospital mergers. In this article, we discuss remaining controversies related to both product and geographic dimensions of market definition in hospital mergers. We discuss why a traditional interpretation of hospital product markets may be inconsistent with the ongoing evolution of how health care is delivered. We also discuss the econometric methodologies that have recently been used to assess competition between hospitals, and provide some cautionary notes regarding their reliability.
FTC v. Lundbeck: Is Anything in Antitrust Obvious, Like, Ever?
Authors: Sagers Chris , Brunell Richard M.
Published: February 2015

In FTC v. Lundbeck, the Eighth Circuit affirmed a bench verdict finding a merger to monopoly, followed by a 1400% price increase, not only legal, but effectively not even subject to antitrust. The result followed from the district court's view that peculiarities in the market for hospital-administered drugs rendered it essentially immune from price competition. That being the case, the court found that even products very plainly substitutable on any traditional “functional interchangeability” analysis are not in the same “relevant market” for purposes of rules governing horizontal mergers. We think the court's analysis was incorrect for a number of factual reasons, but stress that, much more importantly, a case like Lundbeck calls for return to traditionally broad, prophylactic rules.
United States v. H&R Block: Market Definition in Court since the 2010 Merger Guidelines
Authors: Remer Marc , Warren-Boulton Frederick R.
Published: February 2015

United States v. H&R Block has been viewed as a contest between old and new approaches to merger analysis: a structural approach centering on market definition versus an effects analysis involving merger simulation. The economists on the DOJ team, however, saw the two approaches as nonconflicting and complementary. We focus here on two issues in market definition that were disputed at trial: first, in what order should products be added to the provisional market; and second, when should that process stop. With respect to the ranking of “close substitutes,” we suggest “normalizing” diversion ratios to account for shares or output, and perhaps also for margins. With respect to the latter, we show that merger simulation can be used to estimate not only the price effect from this merger, but also the price effect for a merger to monopoly in the proposed market and thus provide a rigorous implementation of the SSNIP test.
Markets and Market Power in Battery Separators: In Re Polypore
Authors: Simpson John , Robertson J. Robert
Published: February 2015

The FTC's lawsuit against Polypore International, Inc. mainly focused on Polypore's consummated acquisition of Microporous L.P., its only rival in the sale of two types of battery separators and one of its two rivals in the sale of a third type of battery separator. Because this was a consummated acquisition, three types of evidence were available to define markets and analyze competitive effects: 1) structural evidence showing a high market share in an appropriately defined market where there were barriers to entry; 2) pre-acquisition direct evidence of head-to-head competition; and 3) post-acquisition evidence of higher prices or reduced output. This article notes that while all three types of evidence indicated that the merger was anticompetitive, the pre-acquisition and post-acquisition evidence of direct effects was particularly informative in understanding the acquisition's effect on competition.
Strategic Management Concepts for Antitrust: Cooperation, Stakeholders and Sustainability
Authors: Hawker Norman W. , Edmonds Thomas N.
Published: February 2015

Now that the rule of reason has largely over taken per se rules of antitrust law in the United States, antitrust enforcement generally requires evaluation of a wide variety of evidence to determine the challenged conduct's effect on competition. This article provides an overview of three concepts commonly taught in MBA-level strategic management courses to evaluate much of the same evidence for purposes of determining the firm's competitive strategy: cooperative strategies, stakeholder management, and sustainable business practices. Unlike the neoclassical microeconomic view of competition commonly used in modern antitrust analysis, strategic management teaches students to view competitors not only as rivals, but also as stakeholders with whom their firms may need to cooperate. While the application of these concepts to specific antitrust issues requires further analysis, these concepts provide a basis for supplementing the understanding of business competition under the rule of reason.