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The Antitrust Enterprise
Principle and Execution
Herbert Hovenkamp
Harvard University Press, 2008

After thirty years, the debate over antitrust's ideology has quieted. Most now agree that the protection of consumer welfare should be the only goal of antitrust laws. Execution, however, is another matter. The rules of antitrust remain unfocused, insufficiently precise, and excessively complex. The problem of poorly designed rules is severe, because in the short run rules weigh much more heavily than principles. At bottom, antitrust is a defensible enterprise only if it can make the microeconomy work better, after accounting for the considerable costs of operating the system.

The Antitrust Enterprise is the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago. It confronts not only the problems of poorly designed, overly complex, and inconsistent antitrust rules but also the current disarray of antitrust's rule of reason, offering a coherent and workable set of solutions. The result is an antitrust policy that is faithful to the consumer welfare principle but that is also more readily manageable by the federal courts and other antitrust tribunals.

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Antitrust Law in the New Economy
Google, Yelp, LIBOR, and the Control of Information
Mark R. Patterson
Harvard University Press, 2017

Markets run on information. Buyers make decisions by relying on their knowledge of the products available, and sellers decide what to produce based on their understanding of what buyers want. But the distribution of market information has changed, as consumers increasingly turn to sources that act as intermediaries for information—companies like Yelp and Google. Antitrust Law in the New Economy considers a wide range of problems that arise around one aspect of information in the marketplace: its quality.

Sellers now have the ability and motivation to distort the truth about their products when they make data available to intermediaries. And intermediaries, in turn, have their own incentives to skew the facts they provide to buyers, both to benefit advertisers and to gain advantages over their competition. Consumer protection law is poorly suited for these problems in the information economy. Antitrust law, designed to regulate powerful firms and prevent collusion among producers, is a better choice. But the current application of antitrust law pays little attention to information quality.

Mark Patterson discusses a range of ways in which data can be manipulated for competitive advantage and exploitation of consumers (as happened in the LIBOR scandal), and he considers novel issues like “confusopoly” and sellers’ use of consumers’ personal information in direct selling. Antitrust law can and should be adapted for the information economy, Patterson argues, and he shows how courts can apply antitrust to address today’s problems.

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Antitrust Law, Second Edition
Richard A. Posner
University of Chicago Press, 2001
When it was first published a quarter of a century ago, Richard Posner's exposition and defense of an economic approach to antitrust law was a jeremiad against the intellectual disarray that then characterized the field. As other perspectives on antitrust law have fallen away, Posner's book has played a major role in transforming the field of antitrust law into a body of economically rational principles largely in accord with the ideas set forth in the first edition. Today's antitrust professionals may disagree on specific practices and rules, but most litigators, prosecutors, judges, and scholars agree that the primary goal of antitrust laws should be to promote economic welfare, and that economic theory should be used to determine how well business practices conform to that goal.

In this thoroughly revised edition, Posner explains the economic approach to new generations of lawyers and students. He updates and amplifies his approach as it applies to the developments, both legal and economic, in the antitrust field since 1976. The "new economy," for example, has presented a host of difficult antitrust questions, and in an entirely new chapter, Posner explains how the economic approach can be applied to new industries such as software manufacturers, Internet service providers, and those that provide communications equipment and services.

"The antitrust laws are here to stay," Posner writes, "and the practical question is how to administer them better-more rationally, more accurately, more expeditiously, more efficiently." This fully revised classic will continue to be the standard work in the field.
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The Antitrust Paradigm
Restoring a Competitive Economy
Jonathan B. Baker
Harvard University Press, 2019

A new and urgently needed guide to making the American economy more competitive at a time when tech giants have amassed vast market power.

The U.S. economy is growing less competitive. Large businesses increasingly profit by taking advantage of their customers and suppliers. These firms can also use sophisticated pricing algorithms and customer data to secure substantial and persistent advantages over smaller players. In our new Gilded Age, the likes of Google and Amazon fill the roles of Standard Oil and U.S. Steel.

Jonathan Baker shows how business practices harming competition manage to go unchecked. The law has fallen behind technology, but that is not the only problem. Inspired by Robert Bork, Richard Posner, and the “Chicago school,” the Supreme Court has, since the Reagan years, steadily eroded the protections of antitrust. The Antitrust Paradigm demonstrates that Chicago-style reforms intended to unleash competitive enterprise have instead inflated market power, harming the welfare of workers and consumers, squelching innovation, and reducing overall economic growth. Baker identifies the errors in economic arguments for staying the course and advocates for a middle path between laissez-faire and forced deconcentration: the revival of pro-competitive economic regulation, of which antitrust has long been the backbone.

Drawing on the latest in empirical and theoretical economics to defend the benefits of antitrust, Baker shows how enforcement and jurisprudence can be updated for the high-tech economy. His prescription is straightforward. The sooner courts and the antitrust enforcement agencies stop listening to the Chicago school and start paying attention to modern economics, the sooner Americans will reap the benefits of competition.

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Are Predatory Commitments Credible?
Who Should the Courts Believe?
John R. Lott, Jr.
University of Chicago Press, 1999
Predatory pricing has long been a contentious issue among lawmakers and economists. Legal actions are continually brought against companies. But the question remains: how likely are firms to cut prices in order to drive rivals out of business? Predatory firms risk having to keep prices below cost for such an extended period that it would become cost-prohibitive. Recently, economists have turned to game theory to examine circumstances under which predatory tactics could be profitable.

John R. Lott, Jr. provides long-awaited empirical analysis in this book. By examining firms accused of or convicted of predation over a thirty-year period of time, he shows that these firms are not organized as the game-theoretic or other models of predation would predict. In contrast, what evidence exists for predation suggests that government enterprises are more of a threat.

Lott presents crucial new data and analysis, attacking an issue of major legal and economic importance. This impressive work will be of great interest to economists, legal scholars, and antitrust policy makers.

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The Atlantic Divide in Antitrust
An Examination of US and EU Competition Policy
Daniel J. Gifford and Robert T. Kudrle
University of Chicago Press, 2015
How is it that two broadly similar systems of competition law have reached different results across a number of significant antitrust issues? While the United States and the European Union share a commitment to maintaining competition in the marketplace and employ similar concepts and legal language in making antitrust decisions, differences in social values, political institutions, and legal precedent have inhibited close convergence.
           
With The Atlantic Divide in Antitrust, Daniel J. Gifford and Robert T. Kudrle explore many of the main contested areas of contemporary antitrust, including mergers, price discrimination, predatory pricing, and intellectual property. After identifying how prevailing analyses differ across these areas, they then examine the policy ramifications. Several themes run throughout the book, including differences in the amount of discretion firms have in dealing with purchasers, the weight given to the welfare of various market participants, and whether competition tends to be viewed as an efficiency-generating process or as rivalry. The authors conclude with forecasts and suggestions for how greater compatibility might ultimately be attained.
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Baseball on Trial
The Origin of Baseball's Antitrust Exemption
Nathaniel Grow
University of Illinois Press, 2014
The controversial 1922 Federal Baseball Supreme Court ruling held that the "business of base ball" was not subject to the Sherman Antitrust Act because it did not constitute interstate commerce. In Baseball on Trial, legal scholar Nathaniel Grow defies conventional wisdom to explain why the unanimous Supreme Court opinion authored by Justice Oliver Wendell Holmes, which gave rise to Major League Baseball's exemption from antitrust law, was correct given the circumstances of the time.
 
Currently a billion dollar enterprise, professional baseball teams crisscross the country while the games are broadcast via radio, television, and internet coast to coast. The sheer scope of this activity would seem to embody the phrase "interstate commerce." Yet baseball is the only professional sport--indeed the sole industry--in the United States that currently benefits from a judicially constructed antitrust immunity. How could this be?
 
Drawing upon recently released documents from the National Baseball Hall of Fame, Grow analyzes how the Supreme Court reached this seemingly peculiar result by tracing the Federal Baseball litigation from its roots in 1914 to its resolution in 1922, in the process uncovering significant new details about the proceedings. Grow observes that while interstate commerce was measured at the time by the exchange of tangible goods, baseball teams in the 1910s merely provided live entertainment to their fans, while radio was a fledgling technology that had little impact on the sport. The book ultimately concludes that, despite the frequent criticism of the opinion, the Supreme Court's decision was consistent with the conditions and legal climate of the early twentieth century.
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The Big Leagues Go to Washington
Congress and Sports Antitrust, 1951-1989
David George Surdam
University of Illinois Press, 2015
Between 1951 and 1989, Congress held a series of hearings to investigate the antitrust aspects of professional sports leagues. Among the concerns: ownership control of players, restrictions on new franchises, territorial protection, and other cartel-like behaviors.
 
In The Big Leagues Go to Washington, David Surdam chronicles the key issues that arose during the hearings and the ways opposing sides used economic data and theory to define what was right, what was feasible, and what was advantageous to one party or another. As Surdam shows, the hearings affected matters as fundamental to the modern game as broadcasting rights, player drafts and unions, league mergers, and the dominance of the New York Yankees. He also charts how lawmakers from the West and South pressed for the relocation of ailing franchises to their states and the ways savvy owners dodged congressional interference when they could and adapted to it when necessary.
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The Causes and Consequences of Antitrust
The Public-Choice Perspective
Edited by Fred S. McChesney and William F. Shughart II
University of Chicago Press, 1995
Why has antitrust legislation not lived up to its promise of promoting free-market competition and protecting consumers? Assessing 100 years of antitrust policy in the United States, this book shows that while the antitrust laws claim to serve the public good, they are as vulnerable to the influence of special interest groups as are agricultural, welfare, or health care policies. Presenting classic studies and new empirical research, the authors explain how antitrust caters to self-serving business interests at the expense of the consumer.

The contributors are Peter Asch, George Bittlingmayer, Donald J. Boudreaux, Malcolm B. Coate, Louis De Alessi, Thomas J. DiLorenzo, B. Epsen Eckbo, Robert B. Ekelund, Jr., Roger L. Faith, Richard S. Higgins, William E. Kovacic, Donald R. Leavens, William F. Long, Fred S. McChesney, Mike McDonald, Stephen Parker, Richard A. Posner, Paul H. Rubin, Richard Schramm, Joseph J. Seneca, William F. Shughart II, Jon Silverman, George J. Stigler, Robert D. Tollison, Charlie M. Weir, Peggy Wier, and Bruce Yandle.
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Enterprise and American Law, 1836–1937
Herbert Hovenkamp
Harvard University Press, 1991

In this integration of law and economic ideas, Herbert Hovenkamp charts the evolution of the legal framework that regulated American business enterprise from the time of Andrew Jackson through the first New Deal. He reveals the interdependent relationship between economic theory and law that existed in these decades of headlong growth and examines how this relationship shaped both the modern business corporation and substantive due process. Classical economic theory—the cluster of ideas about free markets—became the guiding model for the structure and function of both private and public law.

Hovenkamp explores the relationship of classical economic ideas to law in six broad areas related to enterprise in the nineteenth and early twentieth centuries. He traces the development of the early business corporation and maps the rise of regulated industry from the first charter-based utilities to the railroads. He argues that free market political economy provided the intellectual background for constitutional theory and helped define the limits of state and federal regulation of business behavior. The book also illustrates the unique American perspective on political economy reflected in the famous doctrine of substantive due process. Finally, Hovenkamp demonstrates the influence of economic theory on labor law and gives us a reexamination of the antitrust movement, the most explicit intersection of law and economics before the New Deal.

Legal, economic, and intellectual historians and political scientists will welcome these trenchant insights on an influential period in American constitutional and corporate history.

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The Great Leveler
Capitalism and Competition in the Court of Law
Brett Christophers
Harvard University Press, 2016

For all the turmoil that roiled financial markets during the Great Recession and its aftermath, Wall Street forecasts once again turned bullish and corporate profitability soared to unprecedented heights. How does capitalism consistently generate profits despite its vulnerability to destabilizing events that can plunge the global economy into chaos? The Great Levelerelucidates the crucial but underappreciated role of the law in regulating capitalism’s rhythms of accumulation and growth.

Brett Christophers argues that capitalism requires a delicate balance between competition and monopoly. When monopolistic forces become dominant, antitrust law steps in to discourage the growth of giant corporations and restore competitiveness. When competitive forces become dominant, intellectual property law steps in to protect corporate assets and encourage investment. These two sets of laws—antitrust and intellectual property—have a pincer effect on corporate profitability, ensuring that markets become neither monopolistic, which would lead to rent-seeking and stagnation, nor overly competitive, which would drive down profits.

Christophers pursues these ideas through a close study of the historical development of American and British capitalist economies from the late nineteenth century to the present, tracing the relationship between monopoly and competition in each country and the evolution of legal mechanisms for keeping these forces in check. More than an illuminating study of the economic role of law, The Great Leveler is a bold and fresh dissection of the anatomy of modern capitalism.

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Law and Economic Policy in America
The Evolution of the Sherman Antitrust Act
William Letwin
University of Chicago Press, 1981
William Letwin's thorough, carefully argued, and elegantly written work is the only book length study of the Sherman Antitrust Act, a law designed to shape the economic life of a large complex society through maintaining the "correct" level of competition in the economy. This is a superb history and complete analysis of the Act, from its English and American common law antecedents to the events that led to the first revisions of the Act in the form of the Clayton Antitrust and Federal Trade Commission Acts.
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The Microsoft Case
Antitrust, High Technology, and Consumer Welfare
William H. Page and John E. Lopatka
University of Chicago Press, 2007

In 1998, the United States Department of Justice and state antitrust agencies charged that Microsoft was monopolizing the market for personal computer operating systems.  More than ten years later, the case is still the defining antitrust litigation of our era.  William H. Page and John E. Lopatka’s The Microsoft Case contributes to the debate over the future of antitrust policy by examining the implications of the litigation from the perspective of consumer welfare. 

The authors trace the development of the case from its conceptual origins through the trial and the key decisions on both liability and remedies.  They argue that, at critical points, the legal system failed consumers by overrating government’s ability to influence outcomes in a dynamic market. This ambitious book is essential reading for business, law, and economics scholars as well as anyone else interested in the ways that technology, economics, and antitrust law have interacted in the digital age.

“This book will become the gold standard for analysis of the monopolization cases against Microsoft. . . . No serious student of law or economic policy should go without reading it.”—Thomas C. Arthur, Emory University

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The Organization of Industry
George J. Stigler
University of Chicago Press, 1983
The Organization of Industry collects essays written over two decades—pieces prepared especially for this volume, previously unpublished material, and reprinted articles drawn from numerous sources, many which include additional commentary by the author. The essays are unified by George J. Stigler's careful analysis and by his clear and witty style.

In part one, Stigler examines the nature of competition and monopoly. In part two he discusses the forces that determine the size structure of industry, including barriers to entry, economics of scale, and mergers. Part three contains articles on a wide range of topics, such as profitability, delivered price systems, block booking, the economics of information, and the kinky oligopoly demand curve and rigid price. Part four offers a discussion of antitrust policy and includes Stigler's recommendations for future policy as well as an examination of the effects of past policies.

"Stigler's writings might well be subtitled 'The Joys of Doing Economics.' He, more than any other contemporary American economist, dispels the gloom surrounding economic theory. It is impossible to confront the subject treated with such humor and verve and come away still believing that economics is the dismal science."—Shirley B. Johnson, American Scholar

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The Supreme Court and Patents and Monopolies
Edited by Philip B. Kurland
University of Chicago Press, 1975
The papers in this collection are drawn from the annual The Supreme Court Review, which, since its inception in 1960, has been regarded by such legal scholars as Robert F. Drinnan, S. J., as "An indispensable, universally quoted work of the highest scholarship regarding the world's most influential tribunal." Now some of the most important contributions to the Review have been brought together in paperback editions that focus on issues that are becoming increasingly relevant to the ordinary citizen's daily life.
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The Supreme Court and the NCAA
The Case for Less Commercialism and More Due Process in College Sports
Brian L. Porto
University of Michigan Press, 2013

Two Supreme Court decisions, NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), have shaped college sports by permitting the emergence of a supercharged commercial enterprise with high financial stakes for institutions and individuals, while failing to guarantee adequate procedural protections for persons charged with wrongdoing within that enterprise. Brian L. Porto examines the conditions that led to the cases, the reasoning behind the justices' rulings, and the consequences of those rulings.

Arguing that commercialized college sports should be compatible with the goals of higher education and fair to all participants, Porto suggests that the remedy is a federal statute. His proposed College Sports Legal Reform Act would grant the NCAA a limited "educational exemption" from the antitrust laws, enabling it to enhance academic opportunities for athletes. The Act would also afford greater procedural protections to accused parties in NCAA disciplinary proceedings. Porto's prescription for reform in college sports makes a significant contribution to the debate about how best to address perennial problems in college sports such as cost containment, access to a meaningful education for athletes, and fairness in rule enforcement.

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The Transformation of Corporate Control
Neil Fligstein
Harvard University Press, 1990
Neil Fligstein challenges prevailing theories of the corporation and proposes a radically new view in which the firm is driven not so much by market forces as by the state and its policies toward business. Fligstein traces the evolution, over the past century, of corporate strategy from an initial emphasis on direct control to one of manufacturing, then sales and marketing, and finally today’s focus on finance.
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United States v. Apple
Competition in America
Chris Sagers
Harvard University Press, 2019

One of the most-followed antitrust cases of recent times—United States v. Apple—reveals an often-missed truth: what Americans most fear is competition itself.

In 2012 the Department of Justice accused Apple and five book publishers of conspiring to fix ebook prices. The evidence overwhelmingly showed an unadorned price-fixing conspiracy that cost consumers hundreds of millions of dollars. Yet before, during, and after the trial millions of Americans sided with the defendants. Pundits on the left and right condemned the government for its decision to sue, decrying Amazon’s market share, railing against a new high-tech economy, and rallying to defend beloved authors and publishers. For many, Amazon was the one that should have been put on trial. But why? One fact went unrecognized and unreckoned with: in practice, Americans have long been ambivalent about competition.

Chris Sagers, a renowned antitrust expert, meticulously pulls apart the misunderstandings and exaggerations that industries as diverse as mom-and-pop grocers and producers of cast-iron sewer pipes have cited to justify colluding to forestall competition. In each of these cases, antitrust law, a time-honored vehicle to promote competition, is put on the defensive. Herein lies the real insight of United States v. Apple. If we desire competition as a policy, we must make peace with its sometimes rough consequences. As bruising as markets in their ordinary operation often seem, letting market forces play out has almost always benefited the consumer. United States v. Apple shows why supporting cases that protect price competition, even when doing so hurts some of us, is crucial if antitrust law is to protect and maintain markets.

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