翻译:徐鑫源 乔治城大学 LLM
审稿:李梓源 英国布里斯托大学 LL.M.
          张庆 复旦大学法硕
编辑:Gary 詹远 UNSW J.D
责编:王冰子 烟台大学本科
Vol. 2022 No. 1
Time for a New Sherman Act? The Debate on Antitrust Reform in Historical Perspective
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9977
作者:William H. Rooney & Timothy G. Fleming
The Sherman Antitrust Act (“Sherman Act” or “Act”), the Federal Trade Commission Act of 1914, and the Clayton Antitrust Act represent the core antitrust statutes. While these core statutes have remained largely the same, antitrust law has undergone sea changes since the late nineteenth and early twentieth centuries. To place the contemporary debate in historical context, this Introduction traces the trajectory of the Sherman Act and its diverging interpretations from the Act’s inception to date. This Introduction discusses the state of antitrust law during the early years of the twentieth-century, which featured the judicial development of the rule of reason. It also address the Progressive Era amendments to the antitrust laws, which reflected that era’s increased confidence in the efficacy of governmental and regulatory intervention as reflected in the amendments to the Clayton and FTC Acts. The Introduction then focuses on the state of antitrust law during the middle years of the twentieth century, sometimes characterized as operating according to a “big is bad” principle. It then turns to the modern era and discusses the last great revolution in antitrust thought: the arrival of the consumer welfare standard, which directs courts and practitioners to view antitrust law through the prism of how a given practice affects the consumer. This standard often, though not exclusively, focuses on a practice’s impact on prices and output. The Introduction discusses what may be the next revolution in antitrust thought, which some characterize as “the New Brandeis Movement.” It largely addresses the impact of increased concentration on economic as well as social and political issues. Finally, the Introduction concludes by discussing the various legislative proposals, from both Democrats and Republicans, to reform antitrust law, either through modest alterations or thorough overhauls.
反垄断领域的核心法规是《谢尔曼反托拉斯法》、1914年的《美国联邦贸易委员会法》和《克莱顿反托拉斯法》。虽然这些核心法规的内容自始至今大多保持不变,但从十九世纪末和二十世纪初以来,反垄断领域经历了巨大的变化。为了在历史语境中展开当代的讨论,本导论追溯了《谢尔曼法》的发展轨迹及该法诞生至今的不同解释。文章先讨论了二十世纪初期反垄断法规的状况,这段时期的特点是见证了合理原则在司法上的发展。本文也讨论了反垄断法规在进步时代 的修改,反映了这一时期人们对于政府效能和监管干预的信心增强。这一点在《克莱顿法》和《联邦贸易委员会法》的修正案中得以体现。文章随后将重点聚焦于二十世纪中期反垄断法规的状况,这一时期的特点是市场遵循着“以大为恶”的原则运行。然后,文章着眼于现代,讨论了反垄断领域的最新一次重大变革,即消费者福利标准的诞生。这一标准的确立引导法院和反垄断领域从业者从实践中消费者行为是如何被具体影响的角度来审查反垄断行为。这一标准通常,但并不一定,会关注实践中市场行为对价格和产量的影响。文章继续讨论了反垄断领域下一个可能出现的变革,有些人认为会是“新布兰代斯运动”。该运动主要关注经济乃至社会和政治领域里的权力集中问题。文章结尾讨论了民主共和两党提出的各项立法提案,这些提案旨在对反垄断法进行适度修改或是彻底改革。
Do We Need a New Sherman Act?
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9979
作者:Fiona Scott Morton & Kartikeya Kandula & Karissa Kang
Mounting evidence suggests that the American economy is suffering from a lack of competition. This Article details the empirical evidence that illustrates the nature of America’s competition problem. It then discusses the causes, both legal and economic, of ineffective antitrust enforcement. Finally, this Article closes by identifying potential congressional, executive, and judicial reforms that can serve to reinvigorate competition.
Antitrust Reform and the Nirvana Fallacy: The Case Against a New Sherman Act
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9980
作者:Joshua D. Wright & Jennifer Cascone Fauver
Demands for major antitrust reform are coming from all directions: politicians, industrial organization (IO) economists, and antitrust lawyers. While the political, legal, and economic debates vary in important ways, they all boil down to a single question: Do we need a “New” Sherman Act? Progressive IO economists argue that a “crisis” of competition in markets—evidenced by increasing levels of aggregate industry concentration—has resulted in systematic market power across the economy, and that a crisis of institutional credibility in the courts has biased antitrust law in favor of defendants. However, as this Article illustrates, the economic and empirical evidence support neither proffer.
Rather than reform based on upon evidence of market failure or a failure of antitrust institutions, Progressive IO economists call for reform based upon the nirvana fallacy—a comparison of the today’s institutions with an imaginary set of perfect institutions guided by omniscient and well-intending economists. But economics is not on the agenda of current proposals for antitrust reform and calls for a “New” Sherman Act threaten to upend the long-standing partnership between law and economics on which the consumer welfare standard is predicated. Without such a partnership, antitrust institutions will struggle to achieve their objective of promoting competition on behalf of Americans.
Racial Rhetoric or Reality? Cautious Optimism on the Link Between Corporate #BLM Speech and Behavior
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9968
作者:Lisa M. Fairfax
The summer of 2022 marks the two-year anniversary of the dramatic rekindling of the #BlackLivesMatter movement because of the murders of George Floyd, Breonna Taylor and other unarmed Black people at the hands of police. The summer of 2020 saw cities in the United States and around the world erupt in protest, with calls to dismantle racist policies and practices both in the criminal system and within the broader society, with a particular emphasis on policies and practices impacting Black people. The summer of 2022 also marks the two-year anniversary of the visible and somewhat surprising avalanche of corporate statements proclaiming solidarity with the Black community, condemning racism and bigotry, and pledging to help eradicate racist policies and practices within their own institutions. Corporations and their brands inundated the public with black squares, #BlackLivesMatter signs, and emphatic insistence that corporate leaders would “not be silent about our fight against racism and discrimination,” and that they would “do more . . . and do it now.”
2022年夏天是#BlackLivesMatter(黑人的命也是命)运动大规模席卷重来的两周年,起因是George Floyd, Breonna Taylor和其他手无寸铁的黑人被警察(在执法过程中)谋杀。2020年夏天,美国和世界各地的城市爆发了抗议活动,呼吁废除存在于刑事体系和更广泛的社会范围中的种族主义政策和做法,尤其是针对黑人的政策和做法。2022年夏天也标志着一批又一批公司接连宣布声援黑人社区,谴责种族主义和种族歧视,并承诺帮助消除其机构内部的种族主义政策和做法的两周年。发声公司的数量引人关注,甚至有些出人意料。来自各个公司和它们旗下品牌的黑色方块和#BlackLivesMatter标志(和承诺)不断将公众淹没。这些企业强调坚定立场,即“他们的领导人将不会对反种族主义和种族歧视的斗争保持沉默”,并且他们将 “做得更多......而且立刻付诸行动”。
Most commentators viewed these corporate statements with severe skepticism, characterizing them as “cheap talk,” a “marketing ploy,” or “an outright lie.” Relying on original empirical research, this Article refutes that skepticism and demonstrates that, just one year later, many corporations followed through on their talk with actions aimed at promoting diversity and eroding racist and discriminatory practices. This Article makes three critical assertions with respect to these corporate statements. First, this Article uses original empirical research to reveal that the vast majority of the corporate statements made in the summer of 2020 embodied a commitment to actively work against racism and discrimination and actively promote diversity and inclusion. Second, this Article draws upon original empirical research to refute critics and demonstrate that, on the one-year anniversary of these commitments, many corporations followed through on their speech with concrete actions, at least with respect to their boards. Third, after examining the impact of structural limitations and other roadblocks, this Article sounds a note of caution about whether and to what extent we can expect long-term changes in corporate behavior that meaningfully moves the needle on improving racial diversity and equity in the corporate sphere.
大多数评论家对这些公司的言论持严重怀疑态度,将其描述为 “空谈不做”、“营销策略”或 “彻底的谎言”。本文依据原创的实证研究,驳斥了这种怀疑论点,并表明,仅仅一年之后,许多公司就用实际行动落实了他们的言论,目的是增加多样性和消除种族主义和歧视性做法。本文提出了三个重要的论据来支持这些公司的声明。首先,本文通过原创的实证研究,揭示了绝大多数在2020年夏天发表的声明都体现了公司对积极反对种族主义和种族歧视并积极促进多样性和包容性的承诺。第二,本文通过原创实证研究来驳斥批评者,证明在做出这些承诺的一周年之际,许多公司已经用具体行动落实了他们的言论,至少从董事会决定方面看确实如此。第三,在分析研究了结构性限制和其他障碍的影响后,本文对我们是否可以期待公司行为会有长期改变以及这种改变在多大程度上可以有效地改善企业领域的种族平等和多样性难题,提出了审慎意见。
The Rejected Threat of Corporate Vote Suppression: The Rise and Fall of the Anti-Activist Pill
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9981
作者:Jeffrey N. Gordon
As disciplinary takeovers are replaced by activist shareholder campaigns, managements may well want to turn to the “anti-activist pill” as shelter from the storm. The economic shock from the widespread shutdown to combat the Covid-19 pandemic produced dozens of so-called “crisis pills.” The defense of these pills as avoiding “disruption” and “distraction” of managements can be seen as a test run for broader use of poison pills to fend off shareholder activism. The Delaware courts, first Chancery and then the Supreme Court, rejected this managerial defense tactic in a way that clarifies the role of the poison pill in corporate governance. In the context of a hostile tender offer, the pill may be legitimated as protecting the statutory “two-step” for a merger: first, screening and negotiating by the board, followed by a shareholder vote on a proposed merger. 
Delaware’s board-centric model relies on another statutory mechanism—a director election contest—as the appropriate avenue for managerial accountability. Various elements of the poison pill—the cap on share ownership and a definition of “beneficial owner” that goes beyond “record owner”—have unfortunate side effects on election contests but are necessary to prevent unvetted shifts in control via tender offer or the gradual accumulation of stock (a “creeping tender offer”) either directly or with confederates. An anti-activist pill converts these side effects into its very mechanism, precisely to block a successful director election contest. An election contest is different from a tender offer in this critical respect: Success requires persuasion of a shareholder majority who will remain shareholders after the event. A low pill trigger reduces the activist’s economic incentives and can reduce its credibility; a capacious definition of beneficial ownership burdens its task of persuasion. The Delaware Courts’ reaffirmation of the legitimating role of the shareholder franchise is particularly important now, as the set of shareholder activists expands to include ESG activists who will use director election contests to propose broader conceptions of corporate purpose and shareholder value pursuit.
Digital Cluster Markets
Published Jul 25, 2022
DOI https://doi.org/10.52214/cblr.v2022i1.9982
作者:Herbert Hovenkamp
One foundational requirement of markets in antitrust cases is that they consist of products that are close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations. The principle is also important for ensuring that changes in substantive antitrust law are not made through the back door as a result of overly broad or narrow market definitions.
This Article considers the role of “cluster” markets, or markets for goods that are not close substitutes, in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them. Clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers prefer the convenience of receiving the defendant’s grouping of products rather than any single one, or (2) economies of joint provision (economies of scope in production) make joint distribution of the cluster cheaper per good than distribution of each separately, and (3) entering into competition with the cluster is difficult.
本文考虑了 “集群”市场,即非相近替代品组成的市场在反垄断诉讼中的角色,并认定此类市场的最低要求,以及网络效应在识别此类市场中的关联性。出于反垄断分析的目的,将非竞争性产品归集到一个单独市场可能是有意义的,前提是要先意识到这种做法的局限性。在下列情况中,集群有助于对市场支配地位的认定:(1)出于便利角度,许多顾客更愿意接受被告的产品组合而不是其他单一的产品;(2)联合供应经济(生产范围经济)使在集群中联合分销比单独分销每个产品的成本更低;(3)(其他经营者)很难进入集群市场参与竞争。
When network effects are present, an important additional reason is what might be termed economies of scope in consumption, or increased value that accrues as a group of goods or services offered on the same platform becomes not only more numerous but also more diverse. Often the best way to address the cluster market problem is to avoid market definition altogether. Here, digital markets are particularly susceptible to direct measurements of market power that do not depend on a market definition. One limitation on their use, however, is that many of the methodologies require estimating demand changes in response to price changes, but several digital platforms engage with consumers at a price of zero. Here, however, changes in product quality can operate as an adequate (inverse) surrogate for changes in price.
Finally, the logic of cluster markets carries an implicit warning about antitrust remedies. Clustering occurs when it creates value, and for consumers as well as producers. As a result, antitrust enforcers should be wary about aggressive breakup remedies that serve to break apart components that were clustered for the very reason that clustering is valuable.