Herbert hovenkamp @Sherman1890 Twitter profile

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Herbert hovenkamp

@Sherman1890

2 years

I argued in the Yale Law Journal that the big digital platforms are not “winner-take-all” markets. Rather, they face competition from differentiated newcomers. Yesterday, Facebook, TikTok, and the stock market proved me correct.

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Herbert hovenkamp

@Sherman1890

3 years

very flattered and humbled to see this coming out. Thanks to everyone who contributed.

Daryl Lim

@lawlancer

3 years

Delighted to see this volume honoring the remarkable work of @Sherman1890 will be out next week. @uiclaw

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Herbert hovenkamp

@Sherman1890

2 years

I've had a few requests for my teaching slides for antitrust. Here is the fall semester, 2022 -- mainly dominant firms and horizontal restraints. Balance in spring semester. If you're teaching and want the ppt I'm happy to share.

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Herbert hovenkamp

@Sherman1890

2 years

Here's my comparative study of alternative antitrust goals – the curse of “bigness,” concern for the “competitive process,” and “consumer welfare.” They employ different assumptions and their outcomes favor different interests groups. Comments welcome.

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Herbert hovenkamp

@Sherman1890

1 year

Sorry to abandon so many conversations in the middle but I am heading for Ecuador tomorrow, for about two weeks. Probably be too busy for Twitter. Hopefully you will have solved all antitrust problems by the time I return.

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Herbert hovenkamp

@Sherman1890

3 years

Carl Shapiro and I just posted this piece on Promarket about the FTC decision to withdraw the Vertical Merger Guidelines.

How Will the FTC Evaluate Vertical Mergers? - ProMarket

The FTC’s withdrawal of its 2020 vertical merger guidelines is contrary to an extensive economic literature about vertical integration.

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 years

Here is my new piece on antitrust and unilateral monopolistic conduct: briefly, the United States should adopt an abuse of dominance standard as the proper approach to “self-preferencing” as well as other anticompetitive practices in networked markets.

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Herbert hovenkamp

@Sherman1890

3 years

How to address anticompetitive dominance in digital platforms without causing economic harm, in contrast to proposals currently pending before Congress and the State of New York:

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Herbert hovenkamp

@Sherman1890

3 years

yes, but you never asked me. I received a single Google payment for work on a patent case in 2002, and I worked for the government on Microsoft in 1999 -- both about twenty years ago. No payments since then, no grants, and no paid board memberships. Check your sources.

Revolving Door Project

@revolvingdoorDC

3 years

The letter raises concerns about Professor Herbert Hovenkamp, in particular, who has recently been cited in a decision favorable to Facebook, sits on the board of a tech-funded think tank, and has a history of taking money from Google.

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Herbert hovenkamp

@Sherman1890

1 year

My piece with Fiona Scott Morton on "The Life of Antitrust's Consumer Welfare Model" is up this morning. It focuses mainly on how the Supreme Court has articulated the goals of antitrust.

The Life of Antitrust's Consumer Welfare Model - ProMarket

“Consumer welfare” as an objective of antitrust law and regulation has its origins in several vague and even conflicting ideas of how to evaluate the impact of market consolidation. However, many of...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 years

My paper on the definition of harm and proof of causation in antitrust cases is all but published in the Washington Univ. Law Review:

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Herbert hovenkamp

@Sherman1890

3 years

Here is my antitrust analysis of President Biden’s Executive Order on Promoting Competition:

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Herbert hovenkamp

@Sherman1890

3 years

first you need to make an unqualified apology to me and UPenn. McCarthyism is not a good look on you.

Revolving Door Project

@revolvingdoorDC

3 years

But since you are apparently free of corporate money, will you call for your counterparts at other universities to commit to being transparent about corporate payments?

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Herbert hovenkamp

@Sherman1890

4 years

Fiona Scott Morton and I offer a more balanced alternative to the sycophantic histories of Chicago School Antitrust. Part of a symposium on the Chicago School in the Penn Law Review, with an excellent introduction by Christopher Yoo. See .

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Herbert hovenkamp

@Sherman1890

9 months

The publisher has announced my forthcoming book, Tech Monopoly -- and priced reasonably.

Tech Monopoly by Herbert Hovenkamp: 9780262548748 | PenguinRandomHouse.com: Books

A serious look at competition problems in tech markets and whether antitrust law can help address them. In recent years, the astronomical rise of tech giants like Amazon, Apple, Meta, and Microsoft...

www.penguinrandomhouse.com

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Herbert hovenkamp

@Sherman1890

3 years

Here is my latest piece, showing that the case for anti-enforcement error cost bias in antitrust was already obsolete in economics when it was formulated and has subsequently weaponized antitrust in support of rent seeking.

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Herbert hovenkamp

@Sherman1890

3 years

I just posted a piece that explains why both antitrust’s far right and its far left have developed policies that are harmful to labor.

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Herbert hovenkamp

@Sherman1890

2 years

Promarket just posted my new piece on Robert Bork and the corruption of antitrust’s consumer welfare standard. The damage can be fixed, provided that people appreciate what happened.

The Corruption of Consumer Welfare - ProMarket

The consumer welfare standard is used in modern antitrust enforcement to evaluate a merger between two firms. However, its original definition was corrupted in the 1970’s and has led to under-enfor...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

9 months

Under US law the "acquisition" of an employee cannot be an unlawful merger, even though §7 covers "assets," which includes employees. Hiring and NONuse can be a Sherman Act violation, but never actual use, and courts have found overriding interest in assuring employee mobility.

Florian Ederer

@florianederer

9 months

There is, of course, an interesting antitrust angle to the the whole OpenAI saga. Microsoft would never be allowed to acquire OpenAI, but can they just hire whomever they want? What does this mean for the pre- and post-acquisition effects on competition and innovation?

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Herbert hovenkamp

@Sherman1890

3 years

The Epic Games injunction is under California state unfair competition law, not under antitrust law. It is permanent and says nothing whatsoever about territorial scope. So does the injunction apply only to iPhones sold in California? I think not, but this is not crystal clear.

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Herbert hovenkamp

@Sherman1890

3 months

My "the antitrust text” is nearly out; one of Solum’s “downloads of the week,” querying what antitrust enforcement would look like if jurists stuck to the text of the Sherman and Clayton Acts plus ordinary rules of statutory construction. Many surprises.

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Herbert hovenkamp

@Sherman1890

1 year

The European Commission has appointed Fiona Scott-Morton its top competition economist -- a notable first, because she is both an American and a woman.

EU to Tap Former Obama Enforcer as Top Antitrust Economist

The European Commission is poised to name former Obama administration antitrust enforcer Fiona Scott Mortonas its next top competition economist, according to three people familiar with the appoint...

news.bloomberglaw.com

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Herbert hovenkamp

@Sherman1890

2 years

thanks, I've added a PDF version of my slides here. If you want the PPT please send me an email at hhovenka @law .upenn.edu.

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Herbert hovenkamp

@Sherman1890

2 months

I have time for only a few minutes a day on this site. Today I blocked the first person in 10 years—something I would never do except to an extreme abuser

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Herbert hovenkamp

@Sherman1890

3 years

Congratulations to the University of Pennsylvania Law Review, whose publications won five out of eight categories of the Jerry S. Cohen annual awards for antitrust scholarship.

Jerry S. Cohen Award for Antitrust Scholarship: 2021 Winning Articles - American Antitrust Institute

The recipients of the 19th Annual Jerry S. Cohen Award for Antitrust Scholarship were announced today by Cohen Milstein. Each year, AAI hosts the presentation of this award. The award is administered...

www.antitrustinstitute.org

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Herbert hovenkamp

@Sherman1890

3 years

My piece on Antitrust Error Costs is soon to be published in the Univ. Pa. Journal of Business Law. It explains why an obsolete anti-enforcement bias continues to undermine intelligent antitrust policy

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Herbert hovenkamp

@Sherman1890

3 years

The Progressives created nearly the entire toolkit we use today to analyze conduct and power under the antitrust laws. It’s a period well worth revisiting. Comments welcome.

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Herbert hovenkamp

@Sherman1890

1 year

My piece on gatekeeper antitrust policy and the problem of self-preferencing on tech platforms is coming out in the Mich. Tech. L. Rev. Still time for comments.

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Herbert hovenkamp

@Sherman1890

3 years

Historically out biggest antitrust expansions have been provoked by litigation losses – the Clayton Act (1914) by Henry v. A.B.Dick (1912) and the Celler-Kefauver merger statute (1950) by Columbia Steel (1948).

Adam Kovacevich

@adamkovac

3 years

I've heard this argument before, but it feels like spin. I don't see "We failed to prove our case, so legislators please lower the bar" ever having succeeded as an argument for legislation.

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Herbert hovenkamp

@Sherman1890

11 months

But it's not "the" law and economics discipline, just one small and declining fragment of it. Many progressive and more interventionist scholars also do law and economics today. Including PhD economists in both econ departments and law schools.

The Economist US

@EconUS

11 months

The “law-and-economics” movement made the courts more reasoned and rigorous. It also changed the verdicts that judges handed out

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Herbert hovenkamp

@Sherman1890

3 years

My short piece on digital cluster markets, forthcoming in the Columba Business Law Review, evaluates the FTC’s amended complaint in the Facebook antitrust case:

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Herbert hovenkamp

@Sherman1890

7 months

here's the interview the Financial Times did with me concerning antitrust and big tech.

What Big Tech antitrust gets wrong

An interview with Herbert Hovenkamp

www.ft.com

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Herbert hovenkamp

@Sherman1890

3 months

Good piece by David Evans on why excessive regulation is harming the European digital economy. This is why it is so important that our eyes in the USA be on the rollout of the DMA. Until now, the EU has provided too many examples of what not to do.

Why Europe Must End Its 30-Year Digital Winter to Ensure Its Long-Run Future

The lack of digital innovation is a growth impediment and economist David Evans argues that now’s the time for Europe to take action.

www.pymnts.com

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Herbert hovenkamp

@Sherman1890

3 years

I just posted “Digital Cluster Markets,” which considers how antitrust law should evaluate market power when a large digital platform such as Facebook, Google, or Amazon produces many diverse products.

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Herbert hovenkamp

@Sherman1890

3 years

thank you to Promarket for publishing my explanation of why the FTC case was dismissed and how the complaint can be fixed.

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Herbert hovenkamp

@Sherman1890

1 year

@HalSinger I’m with @jasonfurman here. You get nauseous if you’re allergic to poor people – what happens when the antitrust war on consumers turns sour.

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Herbert hovenkamp

@Sherman1890

1 year

just got back from nearly a month traveling in the EU, including antitrust talks at OECD (Paris), ASCOLA (Athens), and CRESSE (Greece). Met many interesting people and got a little different perspective on EU-American relations in competition law.

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Herbert hovenkamp

@Sherman1890

11 months

Ct. just approved a claim that airlines coordinated their pricing through institutional investors. 2023 WL 5930973 (DDC Sep. 11, 2023). Not pure horizontal shareholding because one claim was that the investors communicated with one another about need to limit capacity.

Tim Wu

@superwuster

11 months

The big 3 airlines' coordinated downgrading of their frequent flier programs is really not all that different than price fixing

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Herbert hovenkamp

@Sherman1890

2 years

One interesting thing about "consumer welfare" in the U.S. is that the term never appears in an antitrust case until the 1970s. Prior to that the courts spoke almost exclusively in terms of reduced output and higher prices. Was the use of "CW" an improvement? I think not.

Fabrizio Esposito

@espositofabriz

2 years

@Sherman1890 @HannoLustig I completely agree with @Sherman1890 . Looking into the history of economic thought I found surprising views about #Consumerwelfare in the writings, for example, Smith, Hicks, and Coase. It is all written down in chapter 3 of @consumerwelfhyp

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Herbert hovenkamp

@Sherman1890

1 year

Sophia Lee is going to be Penn Law's next dean -- not only a great choice, but also a legal historian!

Sophia Z. Lee

Sophia Z. Lee is the Dean and Bernard G. Segal Professor of Law at Penn Carey Law, with a secondary appointment in history. A prominent legal historian, a...

www.law.upenn.edu

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Herbert hovenkamp

@Sherman1890

9 months

@IlanStrauss , @timoreilly , and @MazzucatoM have written a superb and I think very important paper on information costs, search algorithms, abundant but imperfect information, and the role of New Institutional Economics, focusing mainly on Amazon.

Amazon’s Algorithmic Rents: The economics of information on Amazon

Authored by Dr Ilan Strauss, Tim O'Reilly and Professor Mariana Mazzucato

www.ucl.ac.uk

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Herbert hovenkamp

@Sherman1890

11 months

I hope you pay special attention to this set of comments on the 2023 draft Merger Guidelines, submitted by a group of lawyers and economists who have worked in this field for a long time.

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Herbert hovenkamp

@Sherman1890

1 year

Promarket is doing a symposium on the 2023 draft Merger Guidelines. My post, focusing mainly on the first two Guidelines, came up this morning.

Herbert Hovenkamp: Competitive Harm and the 2023 Draft Merger Guidelines - ProMarket

Herbert Hovenkamp provides his round-one comments on the draft Merger Guidelines.

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 years

Concurrences published this interview of me, graciously conducted by Doug Melamed. In part it is retrospective and in part my thoughts on the unhealthy divisions in antitrust policy today.

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Herbert hovenkamp

@Sherman1890

2 years

Promarket just published my piece on market power, political power, and trade associations. Are we looking for political power in the wrong places?

Are Monopolists or Cartels the True Source of Anticompetitive US Political Power? - ProMarket

Trade associations are often the biggest obstacles to competitive markets, especially when those organizations use their influence to change public policy in their favor. Dana Foarta, Steven Callan...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

10 months

So the FTC is rediscovering consumer welfare?

Tim Wu

@superwuster

10 months

The most interesting thing about the FTC's Amazon complaint today is how non-exotic it is -- no fancy theories, just allegations of conduct that raise prices for consumers

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Herbert hovenkamp

@Sherman1890

2 years

The Regulatory Review just posted my little piece on what is right and what is wrong about the FTC's proposed rule on employee noncompetes.

Noncompete Agreements and Antitrust’s Rule of Reason | The Regulatory Review

The Federal Trade Commission should develop a nuanced approach to employee noncompete agreements.

www.theregreview.org

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Herbert hovenkamp

@Sherman1890

4 months

The antimonopoly movement in the United States is populist, not progressive. Will it or should it evolve into more? I just posted “Will Antitrust Become Progressive?” Comments welcome.

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Herbert hovenkamp

@Sherman1890

3 years

Excited to be on this panel Nov. 10 on the progressive movement and antitrust populism

Daniel Sokol on LinkedIn: #antitrust #competitionlaw

At USC Gould School of Law, we are thrilled to be hosting a webinar panel “Myths and Facts: The Progressive Era and Populist Expressions of Antitrust” with…

www.linkedin.com

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Herbert hovenkamp

@Sherman1890

2 years

"Worker Welfare and Antitrust" shows how both neoliberal and populist policies, which are disdainful of high output, harm labor: neoliberalism because it defines “consumer welfare” to include profits, and populism because of its aversion to bigness.

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Herbert hovenkamp

@Sherman1890

3 years

The WULR is publishing my article on what counts as harm to competition under the antitrust laws and what proof of causation is required. Available at

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Herbert hovenkamp

@Sherman1890

5 months

I just posted this short piece on antitrust market definition, comparing the two methodologies most often cited by courts and antitrust enforcement agencies – namely, the Hypothetical Monopolist test (HMT) and the Brown Shoe factors. Comments welcome.

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Herbert hovenkamp

@Sherman1890

3 years

I am happy that Promarket published my exposition of the good and the not-so-good in recently proposed Congressional legislation intended to rein in competitive abuses by the big internet platforms.

Congress’ Antitrust War On China and American Consumers - ProMarket

Some of the bills currently debated in Congress regarding Big Tech could affirmatively harm competition, hurting both consumers and labor.

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 years

Promarket has posted my piece on noncompete agreements that restrain the mobility of low wage workers, and why the FTC should pursue them.

Antitrust and the FTC: Franchise Restraints on Worker Mobility - ProMarket

As currently formulated, antitrust’s rule of reason approach is not the best tool to deal with vertical noncompete agreements that limit worker mobility and result in suppressed wages or hamper...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

2 years

Here is my new piece on court-compelled interoperability, both static and dynamic, as a remedy for platform monopoly. It provides significant advantages over structural relief but is not always the best solution. .

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Herbert hovenkamp

@Sherman1890

3 years

NCAA vs. Alston is the first private plaintiff’s victory in a Supreme Court rule of reason antitrust decision in decades. Will it now be easier for future antitrust plaintiffs to win cases? My take:

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Herbert hovenkamp

@Sherman1890

1 year

This morning Promarket published my piece on revitalizing the law of potential competition mergers, an area that deserves increased attention.

Reclaiming The Antitrust Law Of Potential Competition Mergers - ProMarket

In order to discuss the Meta/Within merger decision, it is important to understand the legal underpinnings and history of competition merger cases. Most mergers that violate the antitrust laws in the...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 years

Happy that the NYU Law Review Online is publishing my little piece, “Vertical Control,

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Herbert hovenkamp

@Sherman1890

2 years

My paper on interoperability remedies is coming out in the Columbia Law Review Forum, including some thoughts about the proposed ‘‘American Innovation and Choice Online Act’’.

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Herbert hovenkamp

@Sherman1890

11 months

My revised paper on antitrust and self-preferencing is up. Comments welcome.

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Herbert hovenkamp

@Sherman1890

2 years

Good post. “Competitive Process” is a slogan, not a standard – like “free markets.” People of widely different views state it. Justice Harlan used it to attack the per se rule against maximum RPM, while Justice Stevens used it to defend the same rule. Not much of a standard

Einer Elhauge

@elhauge

2 years

While the way court have applied the consumer welfare standard has led to underenforcement, DOJ Antitrust Head Kanter’s proposal to replace it with a “competition and the competitive process” test raises concerns discussed in my new piece. A thread: 1/18

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Herbert hovenkamp

@Sherman1890

2 years

Did the Progressives invent modern antitrust law? If so, how much did they get right? I explore these subjects in my revised paper.

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Herbert hovenkamp

@Sherman1890

3 years

Posted a very little piece on Promarket this morning about Facebook’s potential antitrust/information lawsuit against Apple.

Could Facebook Win an Antitrust Lawsuit Against Apple?

Do the new iOS 14 privacy features violate antitrust laws? If Facebook sues Apple, there are a number of legal issues that the parties might encounter.

www.promarket.org

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Herbert hovenkamp

@Sherman1890

1 year

so this is a 40-year conspiracy of consumers to get low prices and high rates of innovation?

Cory Doctorow NONCONSENSUAL BLUE TICK

@doctorow

1 year

Rather, they represent the last gasp of a 40-year-long conspiratorial legal ideology that embraced the Reagan-era idea of "consumer welfare": 9/

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Herbert hovenkamp

@Sherman1890

3 years

Thanks to the terrific staff at the Boston University Law Review for publishing my “Looming Crisis in Antitrust Economics.” Good luck on exams.

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Herbert hovenkamp

@Sherman1890

2 months

My paper "The Antitrust Text" was published today: 99 Ind. LJ 1063 (2024): what would antitrust policy look like if it were driven by the text of the antitrust statutes using ordinary rules of statutory construction. file:///C:/Users/hhovenka/Downloads/ssrn-4277914.pdf

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Herbert hovenkamp

@Sherman1890

1 year

Steve Salop has written a provocative piece proposing a "Reasonable Competitive Conduct" antitrust standard that combines elements of judicial decisions, consumer welfare, rule of reason reform, and increased attention to vertical conduct.

The Reasonable Competitive Conduct Standard for Antitrust - ProMarket

The Stigler Center’s 2023 Antitrust and Competition conference seeks to answer the question: what lays beyond the consumer welfare standard? In advance of the discussions, ProMarket is publishing a...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

1 year

I posted a short piece on self-preferencing, briefly examining relevant patent and antitrust law, including the right to repair. I also consider whether new legislation is needed and what it should look like. Comments welcome.

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Herbert hovenkamp

@Sherman1890

2 years

yes, the impact was dramatic, making it one of the most successful antitrust decrees ever. But the successes came entirely from forced interoperability and global interconnection rights. It had nothing to do with the geographic breakup of traditional wired carriers.

Andrea, Electoral College Dropout

@Schnubberschnup

2 years

@matthewstoller @Sherman1890 I don't think he could have lived through it and have this opinion. The effect was immediate where I lived - more phones available and lower long-distance prices. But I remember asking mom about it (I was little) and feeling vaguely sad that "Ma Bell" was being broken up.

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Herbert hovenkamp

@Sherman1890

3 years

Promarket just published my new piece on antitrust, innovation, and the Justice Department’s “New Madison” doctrine. How long will it survive in the Biden administration?

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Herbert hovenkamp

@Sherman1890

2 years

The Chicago Law review is about to publish my piece on antitrust and workers. If antitrust wants to get serious about aiding workers it needs to be more attentive to output in both labor markets and product markets.

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Herbert hovenkamp

@Sherman1890

2 years

My history of antitrust policy and thought during the long progressive era has been revised. Thank you to the excellent editors at the Southern California Law Review. Comments are still welcome, and I appreciate those that I have already received.

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Herbert hovenkamp

@Sherman1890

1 year

it exposes a big divide between progressive and populist antitrust. The first embraces growth and increased competition while the latter resists it. The tech bills, particularly AICOA, represent protectionist reactionary populism.

Tim Wu

@superwuster

1 year

I never underestimate Congress' love for big companies ... but frankly doing this would be a major embarrassment for the Democratic party

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Herbert hovenkamp

@Sherman1890

2 years

I would go even further. The Progressives invented modern antitrust doctrine during the period from 1900 to 1935 and we are returning to it today. See my new piece, “The Invention of Antitrust,” forthcoming USC Law Review.

Democracy Journal

@DemJournal

2 years

NEW: @openmarkets 's @brian_callaci on how the history of the Progressive Era antitrust movement remains very much relevant today.

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Herbert hovenkamp

@Sherman1890

3 years

I discuss them in my forthcoming piece in the Yale Law Journal on Antitrust and Platform Monopoly, here:

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Herbert hovenkamp

@Sherman1890

1 year

Eric Posner has a fascinating, pro-enforcement, and certainly controversial new piece in Promarket arguing that increase in margins should be the principle guiding merger policy.

Toward a Market Power Standard for Merger Review - ProMarket

The Stigler Center’s 2023 Antitrust and Competition conference seeks to answer the question: what lays beyond the consumer welfare standard? In advance of the discussions, ProMarket is publishing a...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

3 months

Cover of my MIT Press book TECH MONOPOLY is here. Between illustrations of a network and a chip I picked the chip. Network has become too political.

Search Result List

MIT Press - Search Result List

mitpress.mit.edu

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Herbert hovenkamp

@Sherman1890

10 months

Nessie sounds like pretty standard behavior in imperfectly competitive markets, and it happens ever day. Firms guess at what kind of competitor reaction a price change will produce. Does using an algorithm make it worse? In any event, Section 2 requires exclusionary conduct.

Stacy Mitchell

@stacyfmitchell

10 months

1. "Amazon Used Secret ‘Project Nessie’ Algorithm to Raise Prices" A few highlights from this damning story...

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Herbert hovenkamp

@Sherman1890

1 year

I’ve posted “potential competition,” with an evaluation of the 2023 draft Merger Guidelines and their treatment of related concerns such as “entrenchment.” It also assesses the relationship between potential competition and market definition.

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Herbert hovenkamp

@Sherman1890

3 years

The dismissals of antitrust cases against Facebook increase pressure on Congress to pass new legislation. They strengthen the argument that current antitrust law is not adequate. Congress must act wisely. Here’s my evaluation of the current proposals.

Congress’ Antitrust War On China and American Consumers - ProMarket

Some of the bills currently debated in Congress regarding Big Tech could affirmatively harm competition, hurting both consumers and labor.

www.promarket.org

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Herbert hovenkamp

@Sherman1890

4 months

The Network Law Review has just published my piece on market definition, comparing the hypothetical monopolist test and the Brown Shoe factors.

Herbert Hovenkamp: "Antitrust Market Definition: the Hypothetical Monopolist and Brown Shoe" -...

Dear readers, the Network Law Review is delighted to present you with this month’s guest article by Herbert Hovenkamp, James B. Dinan University Professor at UPenn Carey Law School and the Wharton...

www.networklawreview.org

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Herbert hovenkamp

@Sherman1890

1 year

This thread reflects some important themes. The "hostility" toward tech is largely manufactured by political activists. True, tech firms do some anticompetitive things, but targeting the most productive and innovative part of the economy based on innuendo is a costly mistake.

Adam Kovacevich

@adamkovac

1 year

WP veteran Steve Pearlstein - whom I've known, respected, and worked with for years - has a new opinion essay on how last year's failure of AICOA reflects Congress' dysfunction. Steve is entitled to his opinion - but I think he makes 4 key mistakes: 1/

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Herbert hovenkamp

@Sherman1890

2 years

My short piece on Antitrust Interoperability Decrees will be published by the Columbia Law Review Forum. Antitrust law can make better use of them than it currently does.

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Herbert hovenkamp

@Sherman1890

2 years

@HalSinger FTCA §5 seriously possible. Absence of agreement makes Sherman Act §1 impossible, and dangerous probability of creating a monopoly under §2 unlikely too. This is what §5 was meant for. It has been used before for unaccepted solicitations.

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Herbert hovenkamp

@Sherman1890

2 years

my piece on Antitrust Interoperability Remedies is finally published, here:

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Herbert hovenkamp

@Sherman1890

1 year

I’ll be on an OECD panel on the circular economy, 15 June. One concern is that changing U.S. antitrust attitudes toward productive efficiency are harming the war on climate change.

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Herbert hovenkamp

@Sherman1890

9 months

This morning Promarket posted the diverse views of four of us ( @conlon_chris , @ProfFionasm , Harry First, & @Sherman1890 ) on the FTC's monopolization case against Amazon.

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Herbert hovenkamp

@Sherman1890

2 years

Hastings Law Journal’s excellent Feb. 4, 2022, conference on antitrust and tech invited my talk on “Selling Antitrust” -- about why the press is enamored of antitrust's extremists, but impatient about its more productive but also more technical center.

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Herbert hovenkamp

@Sherman1890

7 months

Fiona Scott Morton says of Sherman Act: “If it is not intended to protect consumer welfare, the Sherman Act does not seem to have much purpose at all...., courts have already stated that antitrust laws are not designed to protect competitors,”

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Herbert hovenkamp

@Sherman1890

4 years

I just posted thoughts about using #antitrust ’s #consumer welfare principle, particularly in #digital and #labor markets. “Antitrust Harm and Causation” (2021),

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Herbert hovenkamp

@Sherman1890

2 years

@leah_nylen An alarming trend. AT&T/Time-Warner court made same error, as did Penguin. Postmerger conduct among constituents is unilateral and largely unreachable, so we need to assume that the firm will maximize after the merger even if it promises not to. See

When Rhetoric Confronts Economic Reality: Unsupported Efficiency Claims and Unenforceable Promise...

In trying to get their merger approved, Penguin and Simon & Schuster claimed massive, but unverified cost savings. They also have promised that their publishing divisions would compete against each...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

10 months

@LPEblog @sandeepvaheesan @laz_radic . I'll stand by what I wrote. I'm sure that if the authors write a treatise based entirely on 1960s SCT case law and ignore everything else, as they advocate, it will be a best seller.

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Herbert hovenkamp

@Sherman1890

1 year

1: Brown: 370 U.S. at 323: “Congress used the words “may be” … to indicate that its concern was with probabilities, not certainties.…” “No statute was sought for dealing with ephemeral possibilities. Mergers with a probable anticompetitive effect were to be proscribed"....

Adam Kovacevich

@adamkovac

1 year

FTX spox signaling that FTC will appeal MSFT/Activision ruling on "may" in text of Clayton Act

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Herbert hovenkamp

@Sherman1890

11 months

We hope to have a good discussion of the 2023 draft Merger Guidelines, featuring one high ranking economist from each Agency, and two commentators. I hope you can join us.

The Regulatory Review

@TheRegReview

11 months

On 9/13 at noon ET, join us for an online discussion on the labor market aspects of the proposed U.S. merger guidelines. Featuring Herb Hovenkamp @Sherman1890 , @GusHurwitz , Ioana Marinescu @mioana , Aviv Nevo & Sanjukta Paul. @Penn Register here:

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Herbert hovenkamp

@Sherman1890

2 years

Recent growth of the digital economy is nearly four times that of economy overall. AICOA is an example, just as the Robinson-Patman Act, of targeting highly productive firms for adverse treatment in order to satisfy special interests who profit by ignoring consumer choice.

Nu Wexler

@wexler

2 years

Media lobbyists running the AICOA playbook -- add some content moderation sweeteners for R support and hope it doesn’t cost D votes on the other side

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Herbert hovenkamp

@Sherman1890

2 years

It's not a merger. It's an asset acquisition and not of productive assets. A merger would be purchase of the rival's chickens. She'll be back in the morning.

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Herbert hovenkamp

@Sherman1890

8 months

Fascinating. The welfare maximizing solution is clearly a choice screen among the top search engine alternatives. If a violation is found, important for assessing the remedy.

Erik Hovenkamp

@ErikHovenkamp

8 months

My new paper about #USvGoogle . It presents an economic model of search engine defaults to study their effects on competition. As far as I know, this is the first study providing a formal model of search defaults. Free download: Thread: 1/n

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Herbert hovenkamp

@Sherman1890

7 months

Promarket asked Hiba Hafiz, Eric Posner, and me to each select what we thought was the most important recent antitrust development. Acting independently (no collusion or even conscious parallelism, I promise), we each picked labor.

The Trends and Cases That Will Define US Antitrust in 2024 - ProMarket

All eyes are on labor this year. Hiba Hafiz, Boston College: 2023 was a big year for labor antitrust. We saw the rise and fall of criminal no-poaching prosecutions, increasing civil challenges to...

www.promarket.org

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Herbert hovenkamp

@Sherman1890

7 months

this discussion misses that the law school market is competitive (200 of them); several are conservative: Scalia, BYU, Regent, Baylor, Ave Maria, others. If demand for more conservatives is keen, these schools would rise to the top. I see no evidence of collusion. What gives?

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Herbert hovenkamp

@Sherman1890

4 months

My Promarket piece on the Apple antitrust case considers two questions: 1) after initial repudiation, is the DOJ returning to a consumer welfare standard? What does the government need to show in order to win?

Consumer Welfare Will Determine the Outcome of the Apple Lawsuit - ProMarket

At the heart of the government’s lawsuit against Apple is if the tech company’s practices of tying and refusing to deal truly enhance the performance and security of the iPhone and its ancillary...

www.promarket.org

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