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Are There Really “Plenty of Shapiros Out There”? 
A Comment on the Courage of Norma L. Shapiro – Part One

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Abstract:   Norma Levy Shapiro, a trailblazing jurist on the United States District Court for the Eastern District of Pennsylvania for...

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The Post-Chicago Antitrust Revolution: A Retrospective

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A symposium examining the contributions of the post-Chicago School provides an appropriate opportunity to offer some thoughts on both the...

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Probability, Presumptions and Evidentiary Burdens in Antitrust Analysis: Revitalizing the Rule of Reason for Exclusionary Conduct

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The conservative critique of antitrust law has been highly influential. It has facilitated a transformation of antitrust standards of conduct since the 1970s and led to increasingly more permissive standards of conduct. While these changes have taken many forms, all were influenced by the view that competition law was over-deterrent. Critics relied heavily on the assumption that the durability and costs of false positive errors far exceeded the costs of false negatives.

Many of the assumptions that guided this retrenchment of antitrust rules were mistaken and advances in law and economic analysis have rendered them anachronistic, particularly with respect to exclusionary conduct. Continued reliance on what are now exaggerated fears of “false positives,” and failure adequately to consider the harm from “false negatives,” has led courts to impose excessive burdens of proof on plaintiffs that belie both sound economic analysis and well-established procedural norms. The result is not better antitrust standards, but instead an unwarranted bias towards non-intervention that creates a tendency toward false negatives, particularly in modern markets characterized by economies of scale and network effects.

In this article, we explain how these erroneous assumptions about markets, institutions, and conduct have distorted the antitrust decision-making process and produced an excessive risk of false negatives in exclusionary conduct cases involving firms attempting to achieve, maintain, or enhance dominance or substantial market power. To redress this imbalance, we integrate modern economic analysis and decision theory with the foundational conventions of antitrust law, which has long relied on probability, presumptions, and reasonable inferences to provide effective means for evaluating competitive effects and resolving antitrust claims.

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Competition Law as Common Law: American Express and the Evolution of Antitrust

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We explore the implications of the widely accepted understanding that competition law is common—or “judge-made”—law. Specifically,...

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The Role of Antitrust in Preventing Patent Holdup

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Patent holdup has proven one of the most controversial topics in innovation policy, in part because companies with a vested interest in...

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Oligopoly Coordination, Economic Analysis, and the Prophylactic Role of Horizontal Merger Enforcement

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For decades, the major United States airlines have raised passenger fares through coordinated fare-setting when their route networks overlap, according to the United States Department of Justice. Through its review of company documents and testimony, the Justice Department found that when major airlines have overlapping route networks, they respond to rivals’ price changes across multiple routes and thereby discourage competition from their rivals. A recent empirical study reached a similar conclusion: It found that fares have increased for this reason on more than 1000 routes nationwide and even that American and Delta, two airlines with substantial route overlaps, have come close to cooperating perfectly on routes they both serve.

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The Dichotomous Treatment of Efficiencies in Horizontal Mergers: Too Much? Too Little? Getting it Right

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The extent to which horizontal mergers deliver competitive benefits that offset any potential for competitive harm is a critical issue of...

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Antitrust Enforcement, Regulation, and Digital Platforms

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There is a growing concern over concentration and market power in a broad range of industrial sectors in the United States, particularly in...

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Nascent Competitors

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A nascent competitor is a firm whose prospective innovation represents a serious threat to an incumbent. Protecting such competition is a critical mission for antitrust law, given the outsized role of unproven outsiders as innovators and the uniquely potent threat they often pose to powerful entrenched firms. In this Article, we identify nascent competition as a distinct analytical category and outline a program of antitrust enforcement to protect it. We make the case for enforcement even where the ultimate competitive significance of the target is uncertain, and explain why a contrary view is mistaken as a matter of policy and precedent. Depending on the facts, troubling conduct can be scrutinized under ordinary merger law or as unlawful maintenance of monopoly, an approach that has several advantages. In distinguishing harmful from harmless acquisitions, certain evidence takes on heightened importance. Evidence of an acquirer’s anticompetitive plan, as revealed through internal communications or subsequent conduct, is particularly probative. After-the-fact scrutiny is sometimes necessary as new evidence comes to light. Finally, our suggested approach poses little risk of dampening desirable investment in startups, as it is confined to acquisitions by those firms most threatened by nascent rivals.

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