USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
➤ Gửi thông báo lỗi ⚠️ Báo cáo tài liệu vi phạmNội dung chi tiết: USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
USING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW work well enough. True, they were an immense improvement over their predecessors, and they have served the field competently for a generation, producing reasonably accurate results in most circumstances. Accumulated experience has also revealed their shortcomings, however. The price and efficiency USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWparadigms are hard to fully understand and are not particularly transparent in their application. Moreover, in a disturbingly large number of circumstUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
ances they are unable to handle the important issue of nonprice competition. In this article we suggest replacing the older paradigms with the somewhaUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWtant to consumers— price, of course, but also variety, innovation, quality, and other forms of nonprice competition. It is also far more transparent, which is an important administrative virtue even where, as in the great majority of cases, it will reach the same result. And in some important real-w USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWorld situations it will lead to better substantive outcomes. There are a number of variety-valuing industries and circumstances that can be assessed cUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
orrectly only by including an effective analysis of nonprice factors. We identify several of those in the article. To illustrate their importance we• USING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWsity of Baltimore School of Law, The views expressed In this article are solely the authors own and a-e not necessarily those of the Federal Trade Commission or any individual Commissioner We are grateful for valuable suggestions from Alden Abbott, Terry Calvani, Russell Damtoft, Albert Foer, Paul H USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWalpern, Caswell Hobbs, Elizabeth Jex, Paul Karlsson, William Kovaclc, Thomas Krattenmaker. Thomas Leary. Michael Moiseyev, James Mongoven John Parisi.USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
Suzanne Patrick. Robert Skitd. Mary Lou Steptoe. Randolph Thtell. Oscar Voss, and Erika Wodinsky. We are also grateful for helpful research assistancUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWr own.1 We refer to this as the 'consumer choice." or sometimes, for linguistic ease, as simply the "choice' mode175go on to identify eight noteworthy recent cases that would probably have been decided differently under a choice approach. Throughout the article the focus is on the practical issues o USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWf day-to-day management, and we show how the choice approach can be made as predictable and administrable as the other paradigms.The current price andUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
efficiency models can deal only awkwardly with nonprice competition. At best, they try to help consumers achieve nonprice objectives indirectly, by fUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWitive for nonprice preferences. That surrogate analysis usually produces reasonable results, but it is not particularly intuitive. In some cases, moreover, it does not work properly. In those cases the choice factors will have to be addressed directly if they are to be considered at all.Antitrust en USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWcounters at least three common situations in which a simple price analysis is inadequate. First, in some markets there is little or no price competitiUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
on to begin with, as a result of regulation, joint ventures, or third-party insurance payors. There is no good way to assess consumer welfare in thoseUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWrs' search costs or otherwise impair their decision-making ability. This will cause consumers to select products that are less desirable or less well-suited to their particular needs. A complete rule of reason analysis must take account of these adverse effects on suitability and satisfaction as wel USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWl as the adverse price effects of the conduct. Finally, in some markets the firms compete not primarilyonpricebutratherthroughindependentproductdeveloUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
pment or creativity. These efforts may involve areas, such as high-tech innovation, delivery of new patient-friendly hospital services, or editorial iUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWn. Thus market concentration principles taken from a price context may not ensure robust competition in the respects most relevant to consumers of these kinds of products. In all three situations, the explicit use of a choice approach to antitrust is likely to lead to enforcement decisions that bett USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWer reflect consumer concerns and preferences.Our proposal for dealing with these issues attempts to combine the virtues of narrowness and breadth—to oUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
ffer both relatively cautious substantive reform and relatively broad conceptual change.To begin with, the proposal accepts that the price and efficieUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW number of cases on the margin. The choice model is anchored in current practice in at least five different ways. First, in over 95 percent of cases either the relevant choice is still going to be based on price, or price competition will ensure effective nonprice competition. In these circumstances USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW enforcement will simply continue along familiar lines. Second, even where the antitrust analysis should focus on nonprice effects, we propose only aUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
more explicit and rigorous consideration of those factors than before, not a fundamental break with the past. Third, our approach would not condemn prUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWern, even though there has been, in principle, some loss of variety.2 Fourth, the choice approach will not condemn practices that limit options through ordinary market competition. It asks only whether a particular business practice has resulted in some unreasonable and significant limitation on con USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWsumer choice, unmediated by a marketplace test. And fifth, a choice approach is not a return to the "social and political values" paradigm of the 1960USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
s and 1970s, which proved standardless and unduly hostile to business?A consumer choice theory based on these principles can operate in as disciplinedUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW rigor than the efficiency or price models. Those older models, however, are based not only on science, but also on long experience and seasoned judgment. In this article we willdemonstrate that a choice model, carefully developed through case-by-case analysis and supplemented by retrospective case USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWstudies and experimental economics, can build the same kind of empirical foundation for itself. Such a foundation will identify the relevant standardsUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
and thresholds, which can then be expressed and applied in administrable and predictable ways. For example, the enforcement agencies might announcethUSING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWtice likely to result in only a trivial increase in price.’The social-political paradigm rested on an underlying suspicion of or even hostility toward big business, and this animus is not present in an approach that merely tnes to factor consumers' nonprice desires into the analysis.4 The Herfindahl USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW-Hirschman index (HHI) is a measure of market concentration used in the antitrust agencies' merger guidelines, calculated by summing the squares of thUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
e individual market shares of all the participants See U.S. Dep t of Justice & Federal Trade Comrn'n, Horizontal Merger Guidelines (1992, revised 1997USING THE "CONSUMER CHOICE" APPROACHTO ANTITRUST LAWNeil w. AverittRobert H. Lande*The current paradigms of antitrust law—price and efficiency—do not USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWely to be important, or choice might be identified as an explicit additional factor for a rule of reason analysis.Although making only moderate changes in practice, our proposed choicemodelisalsobroadlyandessentiallynewinprinciple.ltrepresents nothing less than a new paradigm of the antitrust laws, USING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAWone that will be helpful throughout the antitrust field. The consumer choice approach is fundamentally superior to the price and efficiency paradigmsUSING THE “CONSUMER CHOICE” APPROACHTO ANTITRUST LAW
because it asks the right question. It recognizes that consumers do not just want competitive prices—they want options.5 Framing the issue in this wayGọi ngay
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