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Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy, it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real world subtleties that make science more fact dependent but also more useful. Both extreme positions generally favor lower output as a solution to antitrust problems. The result is higher prices and fewer jobs. The right shrugs at higher prices because of its faith that there are offsetting efficiencies in production. The left simply accepts that higher prices benefit smaller competitors, its preferred protected class. On employment, the extreme right does not really care, because suppressing labor power was part of a bigger neoliberal agenda. The negative impact on jobs remains a major blind spot for the left, however, which claims to support worker rights but ends up advocating policies that do much more harm than good. [ABSTRACT FROM AUTHOR]

"Progressivism" refers to a collection of theories about the appropriate role and obligations of the State. Several American political administrations have worn the label "progressive." Presidential candidates from both major political parties have run and served under that banner for more than a century, through the 2016 election season. Most of these administrations or intending administrations have advocated for interventionist antitrust policies, reflecting a belief that markets are fragile and need repair, that certain interest groups require greater protection, or in some cases, that antitrust policy is an extended arm of regulation. Overall, progressive administrations have produced an impressive economic record, at least when compared with real world alternatives. For example, economic growth and job creation during Democrat administrations has been roughly double that which occurred during Republican administrations. But the progressive record in antitrust policy tells a different story, particularly prior to the Clinton administration. Not only have progressives been expansionist in antitrust policy, they also pursued policies that did not fit well into any coherent vision of the economy, often in ways that hindered rather than furthered competitiveness and economic growth. In fact, for much of its history progressive antitrust policy has exhibited fairly strong special-interest protectionism. This Article argues that most of this progressive antitrust policy was misconceived. Not only have progressives been expansionist in antitrust policy, they also pursued policies that did not fit well into any coherent vision of the economy, injuring the very interest groups the policies were designed to protect. What should be the role of antitrust in a progressive economy that is more intensively regulated than the one that existed when the antitrust laws were passed? Antitrust could pursue one of three very general routes. First, what it has historically done is develop interventionist approaches that recognize many of the same goals and interest-group pressures as regulatory policy generally. Second, it could pursue internally a set of essentially neoclassical goals, limiting its own decision-making to markets in which the government has not asserted conflicting regulatory policies. Or third, it could act as a "super-enforcer" of competition, actually limiting or disciplining regulation that conflicts with its own neoclassical principles. The approach suggested here is a version of the second, provided that care be taken to distinguish public from private conduct. Although the progressive state's expanded ideas about the role of regulation are justified, as a general matter these views should not spill into antitrust policy. Rather, the country is best served by a more-or-less neoclassical antitrust policy with consumer welfare, or output maximization, as its guiding principle. Not only is such a policy consistent with overall economic growth, it is also more likely to provide resistance against special-interest capture, which is a particular vulnerability of the progressive state. [ABSTRACT FROM AUTHOR]

The article discusses complex bundled discounts and the Anti-Trust Policy. Bundled discounting is a common practice in commercial contracts involving suppliers of multiple interrelated products. The condition that the discount must be amortized over the range of products that the seller offers has put it under antitrust scrutiny. It concludes that the Antirtust Commission's "attribution" test should be considered only as initial analysis tool as it produces several false positives.

The article discusses relationship between competition policy and the technologies of information and mentions how technological change can facilitate and undermine the use of information for anticompetitive practices and role of digitization and information technologies.

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition. This paper is an effort to assist courts and counsel in implementing the Actavis Inference. First, we evaluate a variety of fact patterns that have arisen in the district courts since Actavis, including payment that takes a form other than cash. For example, a branded drug maker may promise not to offer an authorized generic drug. As we explain, under Actavis, such agreements are especially likely to violate antitrust law. We also consider how much detail a plaintiff must offer in its initial complaint to comply with federal pleading requirements. Second, we demonstrate that the Actavis Inference fully applies when multiple generic firms, rather than just one, threaten to enter the market. Our economic model shows that the Actavis Inference becomes stronger and more important in the presence of multiple generic firms. Our analysis demonstrates that the contrary conclusions reached in a recent paper by Bruce Kobayashi, Joshua Wright, Douglas Ginsburg, and Joanna Tsai ("KWGT") are incorrect, inconsistent with KWGT's own analysis, or irrelevant to a faithful implementation of Actavis. Third, we clarify the reasons not to litigate patents in antitrust cases. Thanks to the Actavis Inference, a trial court need not determine patent validity or infringement in order to assess the legality of the settlement. The antitrust question depends upon the ex ante prospects in patent litigation and not ex post litigation of the patent by a patent court or by the antitrust court considering the settlement. Litigating the patent is thus of limited probative value and not dispositive regarding a potential antitrust violation. [ABSTRACT FROM AUTHOR]

The article reflects the impact for intellectual property (IP) law and antitrust law on the market. It informs that both antitrust and IP law are limited and imperfect tool for regulating innovation. It mentions that antitrust holds concern about the relationship between innovation and market structure. It also mentions that IP law can learn from severe revisions made by antitrust in remedies doctrine.