Competition enforcement
Herbert Hovenkamp (2023)
The Power of Antitrust Personhood
Antitrust law addresses conspiracy, or collaborative conduct, more harshly than it does unilateral conduct. One person acting alone can get away with far more than groups of firms acting by agreement. In most cases that distinction is justified. Creating substantial market power unilaterally is difficult and relatively uncommon, but it can be created in a moment’s time by an agreement among firms. But how do antitrust tribunals determine when conduct is unilateral rather than collaborative? Often the ansawer is obvious, but sometimes it is not. Two statutory provisions were intended to be the umpire of such decisions. A section of the Sherman considered so important that it was re-enacted in the Clayton Act provides that corporations and associations authorized by state law should be treated as “persons,” or single actors. The provisions address the core problems about internal corporate structure, including the single-entity status of holding companies, the legitimacy or not of suits between shareholders or employees and their firm, or the status of professional associations. The fact that the Sherman Act’s corporate personhood provision was re-enacted virtually verbatim in the Clayton Act is significant, because the intervening quarter century had witnessed a fierce debate over the power and reach of the business corporation. The personhood provisions fall short, however, because they completely ignore most of the interesting cases where conspiratorial capacity is in issue. They have nothing to contribute to situations where the precise boundaries of the corporation become ambiguous. Nor do they provide a solution to the problem of how to address labor disputes between an employer and its own employees. Further, and inadvertently, the statutes have encouraged certain types of industry structures that are not mandated by good competition policy, including the tendency to merge in order to avoid harsh rules about collusion, and the tendency to integrate vertically by ownership even when contractual integration might be superior.
Regulatory governance
Edited by Maggetti; Di Mascio; Natalini (2022)
Handbook of Regulatory Authorities (EE Publishing)
Featuring a comprehensive analytical collection of interdisciplinary research on regulatory authorities, this innovative Handbook presents the fundamental concepts, theories, practices, and empirical achievements and challenges in the contemporary study of regulatory authorities. Opening with a comparative overview of regulators across global regions, regulatory sectors, and regulatory types, the Handbook discusses the key regulatory conceptual issues of independence, politicization, and quality. Contributions from leading scholars and regulatory practitioners provide cutting-edge research on reputation, performance, and control in regulatory authorities. Chapters combine foundational theoretical concepts with empirical research to consider the emerging advances, challenges, and questions in the field, while also giving weight to critical examinations of complex and underexplored issues in research on regulatory authorities. Forward-thinking, the Handbook concludes by expanding its focus to analyse behavioural insights, innovation, agenda-setting, and new frontiers in regulation. With a cross-disciplinary approach, this all-encompassing Handbook will prove invaluable for students and scholars of politics, law, and economics with a regulatory governance perspective. Global in scope, it will be an essential point of reference for policy analysts, practitioners, and policymakers working in regulation and regulatory authorities.