In this episode, AAI Vice President of Legal Advocacy Randy Stutz sits down with Professor Herb Hovenkamp for a wide ranging conversation about current debates over first principles of antitrust law. When the Supreme Court says, “the antitrust laws protect competition,” what exactly is it saying they protect? While there seems to be confusion in the popular press about the meaning of antitrust law’s “consumer welfare” goal, is there confusion (or disagreement) among antitrust experts, too?
In exploring these fundamental questions, Stutz and Hovenkamp discuss whether competition can be defined other than by reference to its effects; the price and non-price effects caused by competition; the proper definition of consumer welfare; how antitrust applies to labor markets and handles welfare tradeoffs; the Supreme Court’s decision in NCAA v. Alston; how to evaluate behavior that has effects in multiple markets; how to deal with evidentiary challenges associated with measuring output effects, including in exclusionary conduct and merger cases involving nascent competitors; how output effects should be considered in light of the need for “sustainable competition”; and the problem of biased error-cost analysis in the federal courts.
Prof. Herbert Hovenkamp, James G. Dinan University Professor, University of Pennsylvania Carey Law School and The Wharton School