Developments

By Dr. Thibault Schrepel[1]

This short article is derived from Thibault Schrepel, Collusion by Blockchain and Smart Contracts,33 Harv. J.L. & Tech. 117 (2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3315182.

Antitrust and competition law is subject to increasing polarization,[2] especially regarding Internet giants. Some scholars argue that the tech giants abuse their dominant positions, while others point to the increase they contribute to consumer welfare. These two camps seem irreconcilable, mainly because they are not discussing the same thing.

There is, however, a broad consensus on antitrust and competition policy in the area of collusion (Section 1 of the Sherman Act in the United States, Article 101 of the TFEU in Europe). Few economists and lawyers would defend the beneficial effects of anti-competitive collusion for consumers. In fact, cartels are regularly described as being “the supreme evil of antitrust,”[3] a quasi-moralist assertion on which the academic community seems to have found a point of agreement.[4] On that basis, algorithmic collusion is now the focus of much academic research.[5] This article ambitions to explain, in the absence of fundamental challenges for antitrust law, why it actually results from a publication bias (I), and why the focus should be put instead on blockchain based-collusion (II).

By Sandeep Vaheesan

In the past few years, mainstream antitrust practitioners and scholars have been rudely awakened from their technocratic slumber and forced to accept that their field is unavoidably political. The objective of antitrust—for too long uncontested and accepted by all serious voices as “consumer welfare”—is up for debate again. Yet, some bipartisan beliefs remain unquestioned. A good example is the shared hostility to the anti-merger policy of the 1960s. The strict limits on corporate consolidation in that era are disparaged for supposedly limiting “efficiency-enhancing” mergers and thereby hurting consumers. For example, even as they disagree on many antitrust issues, Joshua Wright on the reactionary right, Herbert Hovenkamp in the establishment center, and Tim Wu on the neo-Brandeisian left are critical of mid-twentieth century rules on corporate mergers. [Read more…] about Two-and-a-Half Cheers for 1960s Merger Policy