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Fairness is not foreign to competition law and fairness considerations are not new to it. However, the endemic uncertainty on its notion has traditionally made fairness unsuitable to act as a stand-alone applicable legal standard. Indeed, antitrust enforcers have usually been reluctant to engage with the unfairness of terms and conditions. Nonetheless, against the perceived undue corporate power and market concentration in the digital economy, fairness has recently gained center stage in the policy debate, especially in Europe where recent regulatory interventions have been declared to be aimed at promoting fairness in digital markets. Against this background, the article attempts to demonstrate that the vagueness and ambiguity associated with its meaning may make fairness particularly attractive to policy makers and that, accordingly, the revival of fairness risks being simply functional to grant them more discretion and room for intervention. JEL codes: K20, K21, L40, L50 [ABSTRACT FROM AUTHOR]

Empirical findings that common ownership is associated with anticompetitive outcomes including higher prices raise questions about possible policy responses. This comment evaluates the major proposals, including antitrust enforcement against common owners, regulation of corporate governance, regulation of compensation of management of portfolio firms, regulation of capital market structure, and greater antitrust enforcement against portfolio firms. [ABSTRACT FROM AUTHOR]

This article argues that the evidence presented in several critiques of Azar, Schmalz, and Tecu's (AST) "airlines" paper does often not back the conclusion these studies draw. Specifically, widely circulated studies claiming that there are no anticompetitive effects of common ownership or that there is no evidence of it either do not attempt to refute AST's findings of anticompetitive effects in the U.S. airlines industry or in fact confirm the evidence by AST and even dispel valid concerns about AST's methodology. Focusing on Kennedy, O'Brien, Song, and Waehrer (KOSW), we note that their panel regressions using market-share-free indices of common ownership concentration confirm the positive correlation between common ownership concentration and price, which AST showed with a measure containing potentially endogenous market shares. We then examine the alternative empirical methods KOSW propose: (i) Their conclusion that estimates from a structural model show no evidence of anticompetitive effects is based on an estimation that discards 90% of the available data and therefore, at best, is only valid for that subsample; (ii) their structural model makes no economic sense because it produces a negative effect of route distance on marginal cost; and (iii) they construct an alternative version of the widely used BlackRock- Barclays Global Investors instrument that is arguably invalid. Even absent these methodological concerns, KOSW's structural estimates are so noisy that they do not in fact reject the hypothesis that common ownership concentration has a positive effect on prices. A more recent structural paper by Park and Seo has shown these concerns to be well-founded: using a different and larger subsample of AST's data and more standard estimation methods compared to KOSW, they estimate a positive effect of common ownership on prices, as well as a positive effect of route distance on cost. A lesson for future research—and readers of the literature—is to critically evaluate the conclusions drawn by studies in this field, including those that advertise themselves as providing evidence against the existence of anticompetitive effects of common ownership. [ABSTRACT FROM AUTHOR]

For a long time considered a fringe topic, of interest for developing and emergent economies, the question of inequality and poverty has recently taken center stage in mainstream competition law scholarship in the developed countries. Some of this literature deplores the current state of competition law, which has largely ignored this issue, and argues for a different paradigm that would actively engage with economic inequality and its causes. Taking a social contract perspective, and noting the hybrid nature of competition law, which is a tool of economic order, but also a form of social regulation, this study explores the main difficulty in enriching competition law with equity concerns: the economic foundations of mainstream competition law in welfare economics and the crucial separation of the economic efficiency dimension from that of distributive justice. It then examines alternative traditions in economic thought, which are more compatible with an egalitarian perspective. It then turns to the institutional question, exploring the various instruments that governments dispose in order to equalize, and the respective role of more conventional tools against inequality, such as taxation, concluding that the institutional argument against equity concerns in competition law does not stand serious scrutiny. It also critically engages with the argument that there is a trade-off between equality and efficiency, and again concludes that this argument does not stand serious scrutiny. The final part revisits the thorny question of what is to be equalized. Drawing on the idea of "complex equality," it presents the contours of a fairness-driven competition law. [ABSTRACT FROM AUTHOR]

This article argues that economic evaluations of optimal antitrust rules ought to fully recognize antitrust predictability as a relevant factor. It discusses the differences between the direct and indirect mechanism of preventing anticompetitive conduct and between the roles assumed by accuracy and predictability of antitrust adjudication within these mechanisms. While operation of the direct mechanism depends only on accuracy, the indirect mechanism in addition requires predictability to work well. Since a great majority of anticompetitive conduct is prevented indirectly rather than directly, predictability is indispensable for the overall effectiveness of antitrust. Consequently, economic evaluations of optimal antitrust rules need to search for the most effective attainable combination of accuracy and predictability, inevitably sacrificing some of the former for the sake of the latter in the process. [ABSTRACT FROM AUTHOR]

The resurrection of the free trade–fair trade debate at the international level parallels a renewed pressure to incorporate fairness considerations within domestic competition policies, originating from a perceived reduction in the level of competition in various industries. Both supporters and critics of notions of fairness, however, have failed to advance a normatively persuasive case in their favor, neglecting the multifaceted nature of fairness in the competition policy domain. In this article, we disaggregate and evaluate four specific notions of fairness that are pertinent to domestic markets: vertical fairness between producers and consumers, horizontal fairness on the demand side, horizontal fairness on the supply side, and procedural fairness. We defend a narrow dimension of horizontal fairness on the supply side consistent with efficiency goals and of procedural fairness in the enforcement of competition laws. We conclude by comparing the free trade–fair trade debate with the return of fairness in competition policy. [ABSTRACT FROM AUTHOR]

The author combines his antitrust background and his experience as a CEO in the jewelry industry to consider Barak Richman's book, Stateless Commerce, with its detailed description of the role of trust and reputation in the global diamond industry. Richman argues for rule of reason treatment to certain kinds of boycotts that reflect more efficient cooperative institutions made necessary by what he describes as "court failures." This article adds a retail perspective to an analysis based on earlier stages of the supply chain and further explores the relationship between trust and industry structure. [ABSTRACT FROM AUTHOR]

The antitrust world before 1890 looks barren when compared with today’s global antitrust industry. The most common antitrust laws in pre-modern societies condemned practices that had the perceived tendency to raise prices: forestalling, hoarding and price fixing. Enforcement was focused on retail markets and trade in essential foodstuffs, like grain. Laws intended to ensure fair prices are common throughout history. Rules prohibiting unfair or excessive prices raise the more general question of price controls in pre-industrial societies. The historical evidence is ambiguous. Laws prohibiting monopolistic or abusive conduct are less clearly evident than anti-cartel laws in pre-industrial societies, although a few references exist. Before the 20th century, courts and authorities lacked the tools of modern economic analysis, like mathematics-based theories of harm. This absence of modern economics meant that there was no clear distinction among “economic,” “social,” “moral” and “political” policy objectives. Laws concerning product quality, consumer fraud and misrepresentations are commonly found in pre-modern societies. Although consumer protection rules were based on notions of fair dealing and justice, the rules were consistent with modern economic notions of transaction cost efficiencies, asymmetric market information and imperfect market information. [ABSTRACT FROM AUTHOR]

Efficiencies have long been an important aspect of the antitrust analysis of mergers, but in recent years there have been certain noteworthy changes in the nature and analysis of efficiencies. One change appears to be the greater ability of the antitrust agencies to evaluate conventional efficiencies carefully and critically. This is demonstrated by the analysis of efficiencies associated with a number of recent proposed mergers before the antitrust and regulatory agencies. The second important change concerns the types of efficiencies typically claimed by merging firms. Whereas in earlier years these largely involved scale economies, they now more often focus on dynamic efficiencies, quality benefits, and vertical economies. This article discusses each of these in turn and argues that these newer types of efficiencies pose new and greater challenges for analysis. [ABSTRACT FROM AUTHOR]