Publications

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.

Rulemaking in market regulation is accompanied by very strong procedural guarantees (such as motivation, participation and access) and is subject to better regulation tools, such as ex ante and ex post impact assessment and consultations. Starting from the empirical analysis of soft regulations by market regulators (the Anti-Corruption Authority, Bank of Italy, the Italian Companies and Exchange Commission, the Institute for the Supervision of Insurance, the Energy Market and Environment Authority, and the Authority for Communications Guarantees), this paper highlights their regulatory nature on some occasions. Moreover, it examines the perspectives and the criticalities stemming from the hypothetical application of better regulation tools to soft regulation.

Little is known about the responsiveness of Chinese government organizations to public participation in the policymaking process. In this article, we examine government responsiveness in the notice and comment process, in which organizations make public draft laws and regulations and solicit feedback on these proposals. We create and analyze a data set containing information drawn from more than one thousand instances of notice and comment policymaking carried out between 2004 and 2020 by government organizations at the central, provincial, and municipal levels. We find—consistent with expectations—that subnational governments were more responsive to public comments than central government ministries and that organizations were particularly responsive to lengthier comments and comments expressing negative sentiments. Although these patterns suggest the potential of the notice and comment process to mitigate information deficits and improve decision making, it nevertheless remains possible that government responses are merely window dressing and are not accompanied by substantive policy changes.

Consultation is a crucial tool for better regulation, as well as being essential for the accountability and legitimacy of decision-makers. The European minimum requirements for consultation are funda- mental conditions in order to attain these goals. However, they may still not be enough, and consul- tation should also be designed to neutralize or bring out cognitive limitations, both of decision- makers as well as of stakeholders. This paper claims that enriching the better regulation approach with cognitive insights can in fact increase consultation effectiveness and thus become a piece of the puzzle in improving the legitimacy of the European Commission. Moreover, it suggests some techniques to tackle this complexity, which need to be further assessed by ad hoc experiments.