By Richard A. Epstein
For over 100 years, the antitrust consent decree has been a tremendous weapon within the federal enforcement of antitrust legislation. In Antitrust Consent Decrees in idea and Practice, Richard A. Epstein undertakes the 1st systematic learn in their use and effectiveness from either a historic and analytical perspective.
Epstein observes how ameliorations in antitrust philosophy can form the categories of complete settlements that the govt will search and the courts will provide. Epstein takes factor with competitive antitrust enforcement options that search to exploit executive energy to essentially regulate buildings or the enterprise practices of regulated companies, in a few circumstances resulting in their breakup. to provide an explanation for the perils of that process, Epstein conscientiously examines the historical past of consent decree litigation, culminating in distinct experiences of the AT&T breakup and the govt. antitrust activities opposed to Microsoft.
Applying glossy theories of antitrust research, Epstein's imperative thesis is that daring antitrust treatments that aren't tightly tied to a defensible idea of wrongful behavior usually turn out counterproductive. Such measures generally strength agencies to undertake enterprise practices and structural reorganizations that considerably bog down their skill to compete successfully available to buy. The disparate fates of AT&T and Microsoft are the results of a massive and fruitful shift in wondering the use and boundaries at the antitrust legislation in a wide selection of commercial contexts.
Antitrust Consent Decrees in thought and Practice could be of curiosity to any reader who's considering the bigger implications of the govt law of legislation and enterprise. Epstein brings approximately 40 years of non-public wisdom and event to this subject. Written in a transparent and nontechnical type, this publication should still end up a useful source to any scholar of law and monetary coverage, in addition to legal professionals and policymakers eager about antitrust litigation.
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Extra resources for Antitrust Consent Decrees in Theory and Practice: Why Less Is More
The Swift decree made it impossible for Armour & Co. to perform contracts under which it had agreed to buy canned fruit from the California Co-Operative Canneries, which occupied a different market niche from the wholesale grocers. As their interests were aligned with Armour, the canneries sought to vacate the decree on a series of technical objections on jurisdiction and intervention, which the Supreme Court rejected in two unanimous decisions written by Justice Louis D. ”17 Eventually, the original defendants attempted to modify the original decree and to lift the restraints on their ability to enter the prohibited lines of business.
The risk that remains in this two-part tariff is that PROs may set their rates for blanket licenses artificially high in order to preserve the favorable rates for the program licenses. This strategy, however, is likely to prove largely self-defeating, because it will lead to a sharp reduction in overall sales, given that the PROs have already made clear what they think their optimal license fees ought to be. In addition, it implies, in a world without collusion, a loss of business to the competing firm.
Third, the decrees allowed for antitrust suits to persist when the sound and active administrative remedy would have reduced uncertainty, artificial distinctions between the two competitors, and strategic gamesmanship by individual litigants. If the consent decrees nonetheless avoided serious problems, that is because they conformed, by and large, to the golden rule: Keep consent decrees simple, and tie them to the core violations to which they are directed. The decrees did not affect the PROs’ ability to govern their internal businesses, and they did not restrict technical innovations or entry into new markets.