Fairness in Antitrust - Antitrust / Competition Law - Law

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Fairness in Antitrust

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What drives popular support for state-enforced competition policy? What is it about antitrust law that garners approval from both the public and courts, to the point of demonizing large firms convicted of antitrust offenses? In this book Adi Ayal argues that the populist roots of antitrust are still with us, guiding sentiment towards a legal regime that has otherwise shifted towards economic analysis. Antitrust is very much about fairness and morality; this book assesses how modern policy has hijacked popular support - based on traditional conceptions of political and economic power -to combat market power in narrowly defined micro-markets.

Beginning with history, but delving into moral and political philosophy, Professor Ayal shows how arguments concerning fairness in antitrust, applied both to monopolists and their victims, require a balancing test based on context and respecting the rights of both. While traditionally fairness arguments were used to justify intervention where economic analysis did not, this book assesses them from first principles, to show that pure efficiency analysis is flawed from a moral standpoint when the state intervenes. Protecting weak consumers from strong monopolists may carry rhetorical weight, but the reality of antitrust is that the state is much more powerful than almost all firms it regulates. Protecting the strong from the weak, especially when 'weak' consumers hold legal power and influence, might very well be a moral imperative.

This book offers a philosophical account of the conundrum facing competition policy which challenges widely-held yet often implicit and unfounded beliefs.

Introduction Part I: The Setting of Antitrust

The Legal and Rhetorical Context of Antitrust

I. The Development of Antitrust Law: Common Law Antecedents

II. Competition Law in Europe: Between National and Community Goals

III. Introducing the Goals of Antitrust: Fairness, Efficiency and Beyond

IV. Terminology and Focus: What is meant by 'Monopolist' and which Rights are Assessed?

Part II: The Goals of Antitrust

The Societal Goals of Antitrust

I. The Efficiency Model of Antitrust

II. Competition Beyond Efficiency: Between Proxy and Independent Goal

III. Antitrust as Facilitating a Society of Entrepreneurs

Monopoly's Victims

I. Consumers and their Centrality in the Fairness Discussion

II. Antitrust as a Tool for Protecting Competitors

III. Workers, Local Communities and Small Businesses: The Lost Classes of Antitrust

Monopolists' Rights

I. Why the Verizon Case is Unhelpful: Baselines in Antitrust

II. Who are the Monopolists?

III. Monopoly Profit as a Property Right, or Competition as Creating Property?

IV. Freedom of Contract

V. The Role of Firms

Part III: The Balancing Act of Antitrust

Towards a Constitutional Balance in Antitrust

I. The Need for a Balancing Test

II. Striking a Balance

III. Boundaries to be Respected

IV. Developing the Standard

Formalization of Fairness: Keeping Everyone Envy-Free

I. The Framework of Envy-Freeness

II. Complications and Extensions

III. Implementation to Antitrust

The 'Clear and Present Danger' for Antitrust

I. Protecting Monopolists' Market Access: The Logical Fallacy Argument

II. Logical Fallacy or Balancing Act? Trade and Speech Compared

III. The Balancing Test: Free Speech as a Guiding Force

IV. Implementation to Antitrust

V. Objections to the 'Clear and Present Danger' Standard

VI. Answers to the Raised Objections

VII. A Rebellious Thought Conclusion and Future Implementations

Adi Ayal is a Professor in the Faculty of Law at Bar Ilan University specialising in corporate and competition law, network theory, and applications of game theory to business and legal planning.