bluuebunny/crossref_metadata_2025 huggingface dataset:
On the Conditional Frazil Ice Instability in Seawater
Authors: Jordan James R. , Kimura Satoshi , Holland Paul R. , Jenkins Adrian , Piggott Matthew D.
Published: February 2015

It has been suggested that the presence of frazil ice can lead to a conditional instability in seawater. Any frazil forming in the water column reduces the bulk density of a parcel of frazil–seawater mixture, causing it to rise. As a result of the pressure decrease in the freezing point, this causes more frazil to form, causing the parcel to accelerate, and so on. This study uses linear stability analysis and a nonhydrostatic ocean model to study this instability. The authors find that frazil ice growth caused by the rising of supercooled water is indeed able to generate a buoyancy-driven instability. Even in a gravitationally stable water column, the frazil ice mechanism can still generate convection. The instability does not operate in the presence of strong density stratification, high thermal driving (warm water), a small initial perturbation, high background mixing, or the prevalence of large frazil ice crystals. In an unstable water column, the instability is not necessarily expressed in frazil ice at all times; an initial frazil perturbation may melt and refreeze. Given a large enough initial perturbation, this instability can allow significant ice growth. A model shows frazil ice growth in an Ice Shelf Water plume several kilometers from an ice shelf, under similar conditions to observations of frazil ice growth under sea ice. The presence of this instability could be a factor affecting the growth of sea ice near ice shelves, with implications for Antarctic Bottom Water formation.
The Modulation of Equatorial Turbulence by Tropical Instability Waves in a Regional Ocean Model
Authors: Holmes R. M. , Thomas L. N.
Published: February 2015

Small-scale turbulent mixing in the upper Equatorial Undercurrent (EUC) of the eastern Pacific cold tongue is a critical component of the SST budget that drives variations in SST on a range of time scales. Recent observations have shown that turbulent mixing within the EUC is modulated by tropical instability waves (TIWs). A regional ocean model is used to investigate the mechanisms through which large-scale TIW circulation modulates the small-scale shear, stratification, and shear-driven turbulence in the EUC. Eulerian analyses of time series taken from both the model and the Tropical Atmosphere Ocean (TAO) array suggest that increases in the zonal shear of the EUC drive increased mixing on the leading edge of the TIW warm phase. A Lagrangian vorticity analysis attributes this increased zonal shear to horizontal vortex stretching driven by the strain in the TIW horizontal velocity field acting on the existing EUC shear. To investigate the impact of horizontal vortex stretching on the turbulent heat flux averaged over a TIW period the effects of periodic TIW strain are included as forcing in a simple 1D mixing model of the EUC. Model runs with TIW forcing show turbulent heat fluxes up to 30% larger than runs without TIW forcing, with the magnitude of the increase being sensitive to the vertical mixing scheme used in the model. These results emphasize the importance of coupling between the large-scale circulation and small-scale turbulence in the equatorial regions, with implications for the SST budget of the equatorial Pacific.
Evaluating Two Array Autocalibration Methods with Multifrequency HF Radar Current Measurements
Authors: Zhao Chen , Chen Zezong , Zeng Gengfei , Zhang Longgang
Published: February 2015

One pivotal factor affecting the accuracy of HF radar current measurements is the direction of arrival (DOA) estimation performance of the current signal. The beamforming technology or superresolution algorithm cannot always perform best in practical applications because of the phase errors existing in array channels. These phase errors, which cause uncertain estimation of DOA, lead to confused values in radial current maps. To solve this problem, this paper is focused on discussing the performances of two autocalibration methods using sea echoes for multifrequency high-frequency (MHF) radar current measurements. These two array calibration methods, based on maximum likelihood (ML) and multiple signal classification (MU), first seek single-DOA sea echoes and then gather them for array calibration using different cost functions. The ML and MU methods provide approximate mean phases, while the standard phase errors of the MU method are smaller. After array calibration using these two methods, the results show significant improvements in current retrievals. Comparisons between the MHF radar and ADCPs reveal that array calibration using the ML and MU methods also improves the estimation of radial currents clearly, with correlation coefficients over 0.93 and rms differences of 0.09–0.18 m s−1 at different operating frequencies and sampling locations. The performance of the bearing offset is also improved. Only small bearing offsets less than 10° exist in radial current measurements. Therefore, this paper demonstrates that array calibration is a crucial part for current measurements, especially for direction-finding HF radar.
Resale Price Maintenance and Resale Prices: Paying to Support Competition in the Market for Heavy Trucks
Authors: Marvel Howard P.
Published: February 2015

Expectations about the price effects of resale price maintenance (RPM) must play a central role in evaluating its impact. But those expectations must account for the behavior of a supplier that chooses to compensate its dealers for their promotional efforts through protected margins higher than those that would prevail under unrestricted intrabrand competition. Interbrand competition will pressure such a supplier to reduce the wholesale price it charges dealers. This article illustrates this process by examining two cases involving the sale of heavy trucks. Virtually identical pricing policies designed to compensate only those dealers that expanded brand sales were treated differently by the courts depending on whether the policy was interpreted as price discrimination or RPM. This article shows that RPM was implemented to enhance interbrand competition and that its price effects are mismeasured when a focus solely on intrabrand competition ignores the feedback on supplier policy that such competition entails.
A Dynamic Analysis of Resale Price Maintenance: Inefficient Brand Promotion, Higher Margins, Distorted Choices, and Retarded Retailer Innovation
Authors: Grimes Warren S.
Published: February 2015

This article responds to Professor Benjamin Klein's recently published article that describes a comprehensive procompetitive rationale for RPM—resolving the incentive incompatibility between the brand manufacturer and the retailers that sell that brand. Retailers commonly have insufficient incentive to carry and promote products that, if effective distribution were available, would be highly profitable to the manufacturer. The Klein article uses a manufacturer profit/output standard to argue that RPM resolves this incompatibility in a procompetitive manner. I accept Klein's premise that RPM is a way of encouraging retailers to carry and promote the manufacturer's brand, but challenge his measure of procompetitive effect as inconsistent with the Sherman Act's focus on competition, not profitability for individual market participants. I further develop salient features of RPM that undercut the Klein thesis, including the inefficiency of RPM as a brand promotion tool, the inflated manufacturer margins commonly associated with RPM, and the stifling effect of RPM on innovative and efficient retailing. An analysis of six contemporary RPM cases illustrates these anticompetitive effects and provides robust support for a strong presumption that RPM is a violation of the Sherman Act.
A Decision-Theoretic Rule of Reason for Minimum Resale Price Maintenance
Authors: Lambert Thomas A.
Published: February 2015

In holding that minimum resale price maintenance (RPM) is not per se illegal but should instead be evaluated under the rule of reason, the Leegin Court directed lower courts to craft a structured liability analysis that will separate pro- from anticompetitive instances of the practice. Thus far, courts, regulators, and commentators have proposed four types of approaches for evaluating instances of RPM: (1) approaches focused on the effects on consumer prices; (2) approaches focused on the identity of the party initiating the RPM (i.e., manufacturer or dealer(s)); (3) approaches focused on whether the product at issue is sold along with dealer services that are susceptible to free-riding; and (4) an approach, favored by the Federal Trade Commission, that mechanically applies factors the Leegin Court deemed to be relevant to the liability question. Reasoning from a decision-theoretic perspective that seeks to minimize the sum of the error costs and decision costs expected to result from the governing liability rule, this article critiques these four sets of proposed approaches. Finding each deficient, the article sets forth an alternative evaluative approach that would minimize the sum of decision and error costs, thereby maximizing the net social benefits of RPM regulation.
The Image Theory: RPM and the Allure of High Prices
Authors: Orbach Barak Y.
Published: February 2015

A century of debates over resale price maintenance (RPM) has generated hundreds of articles that develop a handful of theories. This article introduces a new theory—the “image theory,” which builds on one of the oldest—yet neglected—explanations that manufacturers offer for RPM: uniform retail prices for a branded good maintains the product's exclusive image, thereby luring consumers and increasing revenues.
RPM as an Exclusionary Practice
Authors: Paldor Ittai
Published: February 2015

A key distinction in classifying RPM systems according to the present state of the literature is the distinction between single manufacturer-driven RPM and any other RPM system. While anticompetitive explanations suggest that RPM is introduced in furtherance of a cartel either at the retail level or at the manufacturing level, procompetitive explanations show how RPM may benefit a single manufacturer. Subsequent to the Supreme Court's ruling in Leegin v. PSKS, it would seem logical to create a presumption of procompetitiveness when RPM is introduced at the genuine initiative of a single manufacturer. This article challenges the consensus according to which single manufacturer-driven RPM is categorically procompetitive. I show that RPM can be used, and is likely to be used, as an exclusionary measure for the elimination of upstream competition. It thus has significant anticompetitive potential even when it is not introduced in furtherance of a cartel.
Free Riding and Resale Price Maintenance: Insights from Marketing Research and Practice
Authors: Gundlach Gregory T. , Cannon Joseph P. , Manning Kenneth C.
Published: February 2015

Although a topic of considerable interest and debate for nearly 100 years, antitrust understanding of resale price maintenance (RPM) has been informed primarily through theory developed in antitrust economics with limited empirical evidence. Addressing calls for research on RPM and its related practices, the current article draws upon existing academic and practitioner research in marketing to identify relevant insights and findings for understanding the primary justification for RPM—the so-called free rider explanation. Through its examination of research on multi-channel shopping and multi-channel marketing, distribution, retailing, and customer management, the article augments antitrust understanding in important and novel ways.
Rethinking Antitrust Policy toward RPM
Authors: Kirkwood John B.
Published: February 2015

Resale price maintenance is a particularly dangerous vertical intra-brand restraint. Because of its direct impact on price competition, it is likely to harm consumers in a substantial number of cases. At the same time, RPM is likely to benefit consumers in a significant number of other cases. Given these mixed effects, the ideal legal standard would distinguish between those instances in which RPM is anticompetitive and those in which it is procompetitive. While Leegin thought that the full rule of reason could play this role, it did not acknowledge what every scholar who has looked at the issue has found—that the full rule of reason has operated in practice as a standard of virtual per se legality, absolving almost every restraint examined. This article proposes an alternative approach—a presumption of illegality combined with safe harbors—and explains why it is likely to produce better results at lower cost.
Harvard, Chicago, and Transaction Cost Economics in Antitrust Analysis
Authors: Hovenkamp Herbert
Published: February 2015

Since Oliver Williamson published Markets and Hierarchies, transaction cost economics (TCE) has claimed an important place in antitrust, avoiding the extremes of the structuralist school, which saw market structure as decisive, and the Chicago school, which found monopoly only infrequently and denied that a monopolist could leverage its power into related markets. Since the 1970s both the structuralist and Chicago positions have moved toward the center, partly as a result of TCE. Already in 1978 Areeda and Turner produced the first volumes of the Antitrust Law treatise, which completely repudiated the leverage theory and abandoned the structuralist and leveraging positions on vertical integration. TCE analysis of contractual restraints recognizes that an important threat to competition is double marginalization, which can occur when market power is held by separate firms with complementary outputs. Nevertheless, one comparative advantage of both structuralism and the Chicago school was their simplicity. TCE analysis is more specific to the situation, demanding close scrutiny when significant market power is either present or realistically threatened.
The Financial Crisis and State Aid
Authors: Nicolaides Phedon , Rusu Ioana Eleonora
Published: February 2015

After the outbreak of the financial crisis in September 2008, Member States adopted a variety of policy instruments in order to protect their financial institutions and national economies. Within a mere couple of weeks after the outbreak of the crisis, it became obvious that existing EU rules were not suitable for dealing effectively with the problems facing financial markets, and single national measures could lead to excessive distortions of competition and disruption to the flow of resources between Member States. Instead of completely putting aside the existing state aid rules, the European Commission adopted special rules allowing it to act swiftly in times of financial crisis. These newly adopted measures raise questions regarding not only the integrity of the Internal Market but also the extent of the Commission control under the new system, legal certainty, the protection of competitors and the exit strategy.
The European Commission's Settlement Procedure in Cartel Cases
Authors: Dekeyser Kris , Roques Christian
Published: February 2015

Since its adoption in July 2008, the European Commission's Settlement Package for cartel cases has been the subject of questions, speculation, and skepticism. The need for clarification of the settlement procedure and its practical implications has become more pressing with the first settlement decisions. First, settlement is an optional route that applies only upon the parties' explicit request, and the standard procedure remains the default one if no settlement is requested or reached. Second, settlement provides for significant procedural economies, in particular, a shorter, streamlined statement of objections and decisions, which in turn limit the parties' reputational damage through adverse publicity. Third, several rounds of confidential bilateral meetings between the Commission and the parties ensure an in-depth hearing of the case, both from the Commission's and the parties' perspectives. Finally, only once a common view of the case is reached are the parties asked to introduce formal settlement submissions to be reflected in the ensuing statement of objections and the decision.
Application of the Nonhorizontal Merger Guidelines
Authors: De Coninck Raphaël
Published: February 2015

On November 28, 2007, the European Commission adopted its first nonhorizontal merger Guidelines as part of DG Competition's implementation of a wider effects-based analysis framework following criticism by the European courts. The Guidelines underscore first that nonhorizontal mergers have significant scope for efficiencies and second that the Commission's analysis should focus on whether a transaction is likely to lead to anticompetitive foreclosure, i.e., foreclosure leading to consumer harm. This article reviews the Commission's application of the Guidelines since their adoption and suggests that the Guidelines have helped focus the Commission's analysis on the key questions for the assessment of the effects of nonhorizontal mergers on consumers. The review of recent cases presented in this article shows that the Guidelines provide a flexible framework within which both qualitative and quantitative economic analysis can be carried out in order to distinguish between pro- and anticompetitive mergers. Although the Guidelines are not binding from a legal point of view, this article also observes that they have served as an effective internal commitment mechanism for DG Competition.
Competition and Transgenic Seed Systems
Authors: Moss Diana L.
Published: February 2015

The transgenic seed industry provides an ideal case study of major competition policy and antitrust enforcement questions associated with systems. These systems consist, at a minimum, of upstream markets for genetic traits (e.g., herbicide-tolerance and insect-resistance) and downstream markets for traited seeds. Corn, soybeans, and cotton are particularly important crops on which transgenic innovations have had an impact. The article begins by discussing the remarkable nature of the transgenic seed revolution, the role of innovation, and the importance of patent protection. It moves on to examine how rapid consolidation has created systems with significant vertical and horizontal integration. These sections help establish the framework for examining two major types of systems—open and closed. Such systems are defined primarily by whether the combinations or “stacks” of genetic traits contained in traited seed involve the technology of a single firm or multiple firms. They give rise to two major modalities of competition—intrasystem and intersystem rivalry. In transgenic seed, the presence of a dominant firm has arguably had a major influence on the evolution of these modalities, particularly through licensing policies for patented technology. The article highlights the difficult questions associated with the nexus between intellectual property law and antitrust law. Some progress is evident, however, as illustrated by landmark antitrust enforcement actions that address system issues.
Deterrence and Detection of Cartels: Using all the Tools and Sanctions
Authors: Werden Gregory J. , Hammond Scott D. , Barnett Belinda A.
Published: February 2015

The United States applies a diverse array of tools and sanctions to deter and detect cartels. Because cartel activity is treated as a serious crime, a formidable array of criminal investigative tools is available, and convicted individuals are imprisoned. Private damages actions also yield substantial recoveries. The many tools and sanctions support each other in various ways, making each significant. But the claim that private damages actions provide the most important deterrent to cartels in the United States ignores the enormous assistance provided by criminal enforcement, misses much that is critical in deterring cartels, and mistakenly assigns credit for detecting cartels.
Fines against Hard Core Cartels in Europe: The Myth of Overenforcement
Authors: Combe Emmanuel , Monnier Constance
Published: February 2015

This article compares the level of fines actually imposed on cartel participants to the illicit gains captured by the firms and estimates a range of optimal restitution and dissuasive fines in each case. The results show that the fines imposed against cartels by the European Commission are, overall, moderate, regardless of the probability of detection. The article is based on a sample of sixty-four cartel decisions by the European Commission from 1975 to 2009 and a methodology that estimates optimal fines imposed on cartels on a case-by-case basis.
U.S. Policy and Practice in Pursuing Individual Accountability for Cartel Conduct: A Preliminary Critique
Authors: Beaton-Wells Caron , Fisse Brent
Published: February 2015

The extent of individual accountability for cartel conduct in the United States, as elsewhere, may be more limited than some might have one believe. The chances are that individuals responsible for cartel offenses will not be prosecuted and that corporate fines will not result in internal disciplinary action being taken against them. Yet few would disagree with the principle that all who are responsible for serious cartel conduct should be held accountable. Further empirical investigation is required in order to test fully the extent to which the DOJ's approach to anticartel enforcement achieves individual accountability. Such an investigation is warranted with regard to the influence of the U.S. model around the world and the strength of advocacy by the U.S. authorities as to its merits.
Deterrence and the Impact of Calculative Thinking on Business Compliance with Competition and Consumer Regulation
Authors: Parker Christine , Nielsen Vibeke Lehmann
Published: February 2015

A number of countries, including Australia, have recently drastically increased the sanctions available for cartel conduct, on the assumption that businesses make decisions about their regulatory compliance behavior on the basis of self-interested calculations about the costs and gains of that behavior. Policymakers often assume that higher sanctions will automatically mean greater deterrence and therefore more compliance. This article sets out a more holistic model of calculative thinking about the costs and gains of compliance and noncompliance. We go on to test this model using data about business firms' compliance management responses to Australia's competition and consumer protection law. We find that enforcement probability is more important than sanction severity, that business belief in the positive business case for compliance is also important, and that fundamental firm characteristics (size, resources, and management style) are also significantly and independently related to compliance management behavior. We conclude that higher sanctions on their own are unlikely to lead to higher compliance with Australian competition and consumer protection law.
The Deterrent Effect of Antitrust Sanctions: Evidence from Switzerland
Authors: Hüschelrath Kai , Leheyda Nina , Beschorner Patrick
Published: February 2015

With the effectiveness of the revision of the Swiss Cartel Act on April 1, 2004, the Competition Commission (the COMCO) gained considerable new powers, especially the power to sanction anticompetitive behavior by imposing substantial fines. Additionally, the revision provided the COMCO with enhanced means of gathering evidence of competition law infringements by conducting dawn raids, thereby increasing the probability of detection and punishment for competition law infringements. Both steps together aimed at strengthening the deterrent effect of antitrust sanctions. Against this background, the article investigates to what extent the revision has reached its goal by conducting a survey among Swiss antitrust lawyers and firms. The results show that the revision certainly has strengthened the deterrent effect of antitrust sanctions in Switzerland. However, in some areas, greater specificity of the legal provisions is advisable in order to increase legal certainty and to avoid negative effects on social welfare by deterring procompetitive behavior.
Prediction and Antitrust
Authors: Foer Albert A.
Published: February 2015

On June 23, 2010, the American Antitrust Institute sponsored a symposium on prediction and antitrust. Its purpose was to examine the role of prediction in the antitrust world and to explore the applicability of current and increasingly well-established prediction and forecasting strategies to the antitrust enterprise. This article both summarizes the various presentations and conveys the conference organizer's personal observations about the topic. After introductory observations that establish the centrality of prediction to antitrust analysis in the phases of planning, investigation, litigation, and remedies, it describes various tools used to make predictions. Special attention is given to mergers and cartels. The article concludes with a discussion of ways in which the antitrust community might be enriched by exploring multidisciplinary sources of experience that have the potential of improving our sophistication with regard to prediction and forecasting.
The Predictability of DOJ Cartel Fines
Authors: Connor John M. , Miller Douglas J.
Published: February 2015

For criminal violations of the Sherman Act, although guided by federal sentencing guidelines, the U.S. Department of Justice has great latitude in recommending corporate cartel fines to the federal courts, and its recommendations are nearly always determinative. In this article, we analyze the determinants of variation in size of criminal fines imposed by the Antitrust Division of the Department of Justice on 124 corporate participants in hard core global cartels. Our behavioral model provides the first direct test of the optimal deterrence theory of antitrust crimes.

Regressions are fitted to a sample of the corporations that participated in international cartels and that were fined between 1996 and March 2010. The predictive power of the optimal-deterrence model is quite good. We find that U.S. corporate cartel fines are strongly directly related to economic injuries from collusion. However, U.S. fines do not conform to the theory's predictions about the probability of detection and conviction of clandestine cartels. We also find that fines complement other antitrust penalties, such as the number of months that a corporate defendant's managers are sentenced to prison and private damages paid.
Economic Remedies for Anticompetitive Hold-up: The Rambus Cases
Authors: Besen Stanley M. , Levinson Robert J.
Published: February 2015

In this article, we analyze the remedies that should be imposed when an intellectual property owner fails to disclose its holdings to other participants in a standard-setting organization (SSO). We show how nondisclosure can lead to supracompetitive royalty rates, different standards from those under full disclosure, or both. We then explain why royalties must be set below those that would have prevailed under full disclosure to account for the fact that punishment is not certain and remedies are often imposed only prospectively. We also explain why even lower royalty rates may be needed when standardized technologies can be improved over time. We apply our analysis to the remedies sought by the Federal Trade Commission and the commitments obtained by the European Commission in response to allegations that Rambus Inc., a developer and licensor of DRAMs, had failed to disclose its intellectual property holdings to JEDEC, an SSO.
Political Characteristics and Competition Law Enactment: A Cross-Country Empirical Analysis
Authors: Parakkal Raju
Published: February 2015

Existing empirical research on the factors that motivate the enactment of competition laws has largely focused on economic determinants rather than political ones. This article fills that gap by incorporating a few key political variables into the analysis of the enactment of competition laws across the world. Specifically, the article focuses on three political variables that, for the most part, capture the political characteristics relevant to the enactment of competition laws: the nature of the political system, the rule of law, and the political ideology of the ruling government. The empirical analysis focuses on 183 countries during the period 1990–2008. The results from panel data regressions indicate that the enactment of competition laws is more likely if the political system is more democratic and left-leaning. Surprisingly, countries with weak systems of rule of law are more likely to enact competition laws, leading to questions of application and enforcement.
Economic Concentration and Economic Power: John Flynn and a Quarter-Century of Mergers
Authors: Brock James W.
Published: February 2015

The author traces merger, consolidation, and concentration trends in a number of major American industries and sectors over the past twenty-five years and examines a variety of their problematic consequences in the light of Professor John Flynn's work emphasizing the danger of economic power in a democratic free-enterprise society.
Controlling Unjustified, Anticompetitive State and Local Regulation: Where is Attorney General “Waldo”?
Authors: Carstensen Peter C.
Published: February 2015

State and local regulations frequently impose unnecessary anticompetitive restrictions on the market. The challenge is to develop the legal and institutional strategies that can constrain regulation more closely to legitimate public interest goals. This article documents the range of anticompetitive interventions ranging from statutes through agency regulation and local ordinances. The theory of public choice and special interest influence in the legislative and administrative processes explain these observations. Second, the article argues that state attorneys general ought to be in the forefront of challenging such regulations, but the record reveals that often attorneys general defend such regulations. Third, the article identifies statutory, doctrinal, and institutional innovations that could ensure more focused and consistent evaluation of such anticompetitive regulations. Finally, there is acknowledgment that it may be difficult for attorneys general to become the advocates for competition against unnecessary regulation that the public interest requires.
Safeguarding the Standard: Standards Organizations, Patent Hold-up, and other Forms of Capture
Authors: Lindsay Michael A.
Published: February 2015

Standards development requires cooperative effort by individuals and firms with divergent interests. Standards development organizations (SDOs) are subject to capture by a single firm or a group of firms. Historically, capture has been viewed through the prism of antitrust law. Patent hold-up can be conceptualized as another form of capture, and whether or not hold-up violates the antitrust laws, it can harm the SDO and impede the commercial adoption of its standards. SDOs have a number of remedies available to them, but an SDO must carefully consider their appropriateness and effectiveness.
Private and Public Approaches to Patent Hold-up in Industry Standard Setting
Authors: Simcoe Timothy S.
Published: February 2015

Many standard setting organizations (SSOs) promote coordinated industry-wide investments in technologies that may be patented. If these investments are sunk before implementers become aware of the patents, or obtain some assurance of a reasonably priced license, the patentee will have a very strong bargaining position. The resulting hold-up problem may lead to higher prices and reluctance to implement new standards. This article describes steps that many SSOs take (or might take) to mitigate patent hold-up and discusses public policies that can strengthen or weaken the private initiatives of SSOs to deal with the problem of potential hold-up.
Questioning the FTC's Incremental Value Test and Claims of Widespread Hold-up in Technology Standards
Authors: Taffet Richard S. , Wellford Hill B.
Published: February 2015

Many authors suggest that hold-up is a widespread problem in technology standard setting. The FTC appears to accept that view in its 2011 IP Report, and its incremental value test would attempt to mitigate such hold-up. We question the factual and logical foundations of the FTC's approach. By expanding the definition of hold-up beyond the context of deception, breach of FRAND commitments, or other patentee misconduct—for which remedies already exist—and by tying the incremental value test to an ex ante point that occurs after patent holders' investments have been sunk, the FTC risks tipping the balance too far in the direction of infringer-licensees, potentially damaging innovation incentives. The FTC's recommendations, which would effect a radical change in patent law and the incentives underlying it, may be subject to question, especially given that we are aware of no empirical study suggesting that hold-up is a serious impediment to standard setting, much less that it warrants fundamental changes to the patent laws.
History of Competition Policy in Brazil: 1930–2010
Authors: Todorov Francisco Ribeiro , Filho Marcelo Maciel Torres
Published: February 2015

As Brazil moved from a highly controlled and concentrated economy to a freer and more competitive one, the antitrust regime developed. The article outlines this historical process. We begin by addressing how the first norms with antitrust-like provisions were created from the 1930s until 1962. We then discuss the difficult operation of the competition authority (CADE) during the military regime from 1964 to 1985. After examining a transition period marked by democratization and a new constitutional order, we correlate the market-oriented reforms of the 1990s with what became the first antitrust statute to be effectively implemented. We then present the more well-known history of this 1994 statute: the initial focus on merger control and the subsequent shift toward cartel enforcement. The article concludes by examining the main challenges facing the Brazilian competition authorities today, including the implementation of the new antitrust statute passed in December 2011.
All about Fair Trade? — Competition Law in Taiwan and East Asian Economic Development
Authors: Liu Lawrence S.
Published: February 2015

The proliferation of antitrust laws around the world in the last three decades demands a series of inquiries, including what exactly are the nature and goals of these young competition statutes? Reviewing Taiwan's Fair Trade Law and the political economy informing its passage, this article reveals an infatuation, common in Asia, with “fairness.” This article first traces traditional Chinese political thought about businesses and the offense of cornering public markets. It then summarizes post—World War II economic development and policies in Taiwan, including the relevancy of constitutional provisions and emergency economic legislation. It shows that Taiwan's Fair Trade Law was enacted amid economic liberalization and political and social reforms. The article then addresses the aim of promoting consumer welfare and other nonefficiency goals, concluding that Taiwan's experience, including how it has struggled to outgrow the fairness fever, has ramifications for other Asian economies following the development state model, including China.
Between Domestic Factors and the EU: Explaining the Emergence of the Turkish Competition Regime
Authors: Aydin Umut
Published: February 2015

With the adoption of the Law on the Protection of Competition in 1994 and the establishment of the Turkish Competition Authority in 1997, Turkey joined the ranks of a growing number of countries that have adopted competition regimes in the last twenty years. A combination of domestic and external factors helps to account for the emergence and the evolution of the Turkish competition regime. The adoption of competition law was a key condition for Turkey's Customs Union agreement with the European Union, and this conditionality played a crucial role in the adoption of the law and the establishment of the Competition Authority by helping Turkish policy makers overcome the opposition from domestic interests. The evolution of competition policy since then, however, can best be explained by domestic institutional factors and the Turkish Competition Authority's ties with international organizations working in the competition policy area.
Atheory of Quality Competition in Newspaper Joint Operating Agreements
Authors: Romeo Charles J. , Canes Aran
Published: February 2015

Newspaper Joint Operating Agreements (JOAs) are long-term, inflexible contracts between metropolitan daily newspapers in the same market. These contracts maintain two editorial voices while combining all business operations of the two competitors in order to capture many of the scale economies that have put an end to newspaper competition in most markets. The question we address is what, if anything, drives newspapers to compete editorially once a JOA is formed? With contract terms that run in the tens of years, one might reasonably question whether incentives exist to prod the partners to continue rigorous competition. Our study of JOA contracts indicates that the history of JOAs is filled with instances of unprogrammed renegotiations and that how the partners fare in these negotiations appears to be driven by each party's relative success in the market since the agreement was initiated. In essence, forming a JOA does not resolve the issue of which newspaper will remain in the marketplace once the JOA terminates. Editorial competition throughout the life of the JOA resolves this issue.
Vertical Integration
Authors: Joskow Paul L.
Published: February 2015

Oliver Williamson's work on transaction cost economics, and more generally on the factors that determine the boundaries between firms and markets, has provided key insights that have significantly expanded our understanding of the attributes of transactions and organizations that lead to vertical integration and vertical contractual relationships more broadly. Transaction cost—based theories of vertical integration focus on the implications of incomplete contracts, asset specificity, information imperfections, incentives for opportunistic behavior, and the costs and benefits of internal organization. These theories focus on efforts by firms to mitigate transaction costs and various contractual hazards that may arise with anonymous spot market transactions by choosing among alternative organizational and contractual governance arrangements that can reduce these costs. There is substantial empirical support for these theories. Property rights—based theories are sometimes interpreted as formalizing some of Williamson's work. However, little empirical work has focused on property rights—based theories per se. Principal-agent theories of vertical integration that are distinguished from other organizational theories primarily by assumed differences in risk aversion between principals and agents and associated moral hazard problems have also been advanced. They add little to the other theories and have limited independent empirical support.
Behavioral Merger Remedies: Evaluation and Implications for Antitrust Enforcement
Authors: Kwoka John E. , Moss Diana L.
Published: February 2015

The 2011 Antitrust Division Policy Guide to Merger Remedies offers a more favorable view of behavioral remedies relative to structural divestitures than past U.S. Department of Justice (DOJ) policy and practice. Moreover, some prominent recent merger cases at DOJ have been settled using behavioral remedies that permit the mergers to go forward subject to ongoing restrictions on the merged firm's conduct. This article raises some concerns about this policy shift. It notes that structural remedies preserve incentives for independent action by firms, whereas behavioral remedies can seek only to prevent firms from acting on their incentives. The difficulties with the latter approach are in some ways analogous to those associated with economic regulation, which seeks to constrain firm incentives and behavior. This article discusses that analogy, evaluates the application of behavioral remedies in the Ticketmaster-Live Nation, Google-ITA, and Comcast-NBC mergers, and concludes with some recommendations for future policy.
Cartel Deterrence through Criminal Enforcement: A Rejoinder to Lande and Davis
Authors: Werden Gregory J.
Published: February 2015

Lande and Davis defend their claim that private damages actions are a greater deterrent than criminal cartel enforcement but continue to miss two key points: Incarcerating individuals deters cartels in a manner that no financial penalty can, and cartel deterrence requires the detection tools available only in criminal enforcement.
Procedural and Substantive Differences in Merger Challenges by Different Authorities in the United States
Authors: Robertson J. Robert , Roush Corey W.
Published: February 2015

The United States has a decentralized system of merger enforcement in which responsibilities are shared among two federal agencies, state attorneys general, and private litigants. This article summarizes the various procedural and substantive differences in merger challenges brought by each of the two federal agencies as well as state enforcers. In particular, the article discusses the impact of merger investigations on enforcement outcomes, state cooperation with federal agencies, settlements and consent decrees, and litigation preparation efforts during the investigation phase. The article also addresses the significant differences among FTC, DOJ, and state merger enforcement, including the differences between federal court and administrative litigation, jurisdiction and venue issues, and potentially divergent standards for preliminary and permanent injunctive relief. The article concludes by evaluating proposals for reform and argues that reforms should be aimed at ensuring consistency in outcomes rather than abandonment of the current decentralized enforcement system.
“Be Careful What You Wish for”: U.S. Government Enforcement of Merger Consent Decrees
Authors: Gelfand David , Ewing Elaine
Published: February 2015

The U.S. Federal Trade Commission and Department of Justice Antitrust Division have a number of formal and informal tools at their disposal to enforce merger consent decrees. This article reviews these tools, the frequency with which they are used, and the circumstances under which they are used, with a particular focus on instances in which the agencies have taken formal enforcement action. Because these obligations should be considered carefully during the negotiation process, the article concludes by offering practical advice for antitrust practitioners negotiating consent decrees.
South African Merger Litigations
Authors: Dini Tamara
Published: February 2015

Due in part to the rights of third parties in merger litigation, there have been a number of highly contested litigated merger cases in South Africa. The article initially provides background to the mandatory premerger notification regime in South Africa, including setting out the roles of the various bodies and courts involved in the review and litigation of mergers. The article goes on to discuss the rights of third parties in merger litigation; not all third parties have the same status with regard to participating or intervening in merger proceedings. The article provides an analysis of a number of recent merger cases, including Wal-Mart Stores Inc./Massmart Holdings Ltd. and Pioneer Hi-Bred/Pannar Seed, before concluding with a brief discussion of the rights of merging parties to implement a merger pending an appeal.
Management, Market Power, and Antitrust—Procter & Gamble and the U.S. Laundry Detergent Industry
Authors: Steiner Robert L.
Published: February 2015

There are three interrelated sources of market power in consumer goods industries—horizontal competition, vertical competition, and sustained management superiority. The important role of vertical competition is poorly represented in the Horizontal Merger Guidelines and that of management is ignored. Longer term, a firm's success as a horizontal and vertical competitor is largely determined by the competence of its management relative to that of its present and potential competitors. The competition agencies must begin to measure the relative management competence of the firms in an industry under investigation for, as the laundry detergent industry demonstrates, the maintenance of supracompetitive returns, the ease of entry, and other outcomes are largely a function of the firms' relative management competence. The article traces how the fortunes of Procter & Gamble and its laundry detergents have ebbed and flowed with the performance of its management from the FTC's investigation of the laundry detergent industry (1973–80) to the present. It also asks what antitrust should do about a firm that had honestly earned its high margins and dominance but whose brands performed no better than far cheaper private label counterparts.
North American Contrasts and Comparisons: Introduction and Ruminations
Authors: Velk Thomas
Published: February 2015

The articles in this symposium discuss North American contrasts in antitrust, regulatory, legislative, and judicial practices with respect to banking and finance. Some reasons for Canada's success are looked at and contrasted with U.S. strategies. Comparative study of how two close neighbors differently address the institutions most associated with the recent economic dislocation may help readers in both locales to improve and reform the key institutions responsible for the allocation of capital and the consequent path of future financial innovation and growth.
Strategic Shortcomings of the Dodd-Frank Act
Authors: Smith Larissa Roxanna , Muñiz-Fraticelli Víctor M.
Published: February 2015

Despite its broad ambitions, the Dodd-Frank Wall Street Reform and Consumer Protection Act is a piecemeal attempt to realign conflicting interests, rather than an effort to fundamentally address the systemic design questions in the current financial system. Some of the central difficulties involved in the legislation are the group-targeting method of bringing only some business entities under federal regulation, the inability of backward-looking legislation to respond to future market innovations, and the weakness of fines as a deterrent mechanism for actions that lead to future instability. A preferred alternative would be a functional approach to financial regulation, which acknowledges the role and limits of legislation and leaves discretion to both the administrative bodies and the courts to identify specific abusive acts.
The End of Criminal Antitrust's per Se Conclusive Presumptions
Authors: Weller Charles D.
Published: February 2015

The Supreme Court in the Booker line of cases revolutionized sentencing law by applying a criminal defendant's constitutional right for a jury, not a judge, to decide key sentencing fact issues. Applying this constitutional line of cases in the course of defending a criminal antitrust case led to bringing together four separate silos of law with four revolutionary implications for antitrust: criminal antitrust, Sixth Amendment rights to jury fact finding, constitutional limits on the use of conclusive presumptions in jury instructions, and the constitutional prohibition of federal common law crimes. The four revolutionary implications for antitrust were as stunning for the author as they are sure to be to the antitrust bar, any one of which, when adopted by the courts or the Antitrust Division, will end criminal antitrust's long-accepted practices regarding per se conclusive presumptions.