By Richard A. Epstein
For over 100 years, the antitrust consent decree has been a tremendous weapon within the federal enforcement of antitrust legislation. In Antitrust Consent Decrees in thought and Practice, Richard A. Epstein undertakes the 1st systematic research in their use and effectiveness from either a ancient and analytical perspective.
Epstein observes how alterations in antitrust philosophy can form the categories of complete settlements that the govt will search and the courts will supply. Epstein takes factor with competitive antitrust enforcement techniques that search to take advantage of executive strength to essentially regulate constructions or the enterprise practices of regulated organizations, in a few cases resulting in their breakup. to provide an explanation for the perils of that strategy, Epstein conscientiously examines the background of consent decree litigation, culminating in unique reviews of the AT&T breakup and the govt antitrust activities opposed to Microsoft.
Applying sleek theories of antitrust research, Epstein's significant thesis is that daring antitrust treatments that aren't tightly tied to a defensible conception of wrongful behavior frequently end up counterproductive. Such measures commonly strength agencies to undertake enterprise practices and structural reorganizations that considerably hamper their skill to compete successfully available to buy. The disparate fates of AT&T and Microsoft are the results of an important and fruitful shift in wondering the use and boundaries at the antitrust legislation in a wide selection of business contexts.
Antitrust Consent Decrees in thought and Practice can be of curiosity to any reader who's interested in the bigger implications of the govt law of legislation and enterprise. Epstein brings approximately 40 years of non-public wisdom and event to this subject. Written in a transparent and nontechnical type, this e-book may still turn out a useful source to any scholar of legislation and fiscal coverage, in addition to attorneys and policymakers considering antitrust litigation.
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Additional info for Antitrust Consent Decrees in Theory and Practice: Why Less Is More
It reflects the glacial pace of antitrust litigation in general. Alcoa. Another famous consent decree case involved the breakup of the Aluminum Company of America (Alcoa), which had been formed in the early 1900s through a combination of American and Canadian interests. Alcoa had obtained extensive control over industry processes from the mining of bauxite (aluminum ore) to the fabrication of aluminum ingot into specific products such as sheet, tube, and wire. In 1912 Alcoa signed a consent decree that had both horizontal and vertical aspects.
Since he found that the “huge size” of the defendants was the dominant operative fact, the changes in market condition took a distinct second place in the analysis, as did concerns with the overall social impact of the decree. As Cardozo put it in an oft-cited passage: The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is 28 ANTITRUST CONSENT DECREES IN THEORY AND PRACTICE relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression.
Douglas, did not stop there, but concluded that the purpose of antitrust law “does not end with enjoining continuance of the unlawful restraints nor with dissolving the combination which launched the conspiracy. ”7 Once the case was remanded, each of the producers divested itself of all its theaters—but for whose benefit? The radical restructuring of the industry did not result in lower movie prices, nor did it reduce concentration at the producer level. The revised consent agreements increased the percentage of the take held by the distributors, but that number was in and of itself of little significance; when the distributors were owned by the studios, the allocation of profits reflected internal accounting as much as or more than, economic reality.