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Fairness in Antitrust: Protecting the Strong from the Weak (eBook)


ISBN13: 9781782254027
Published: April 2014
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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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.

Antitrust intervention is thus assessed from two standpoints: fairness towards distinct groups (both consumers and monopolists) and protection of society at large. The first raises issues with the common assumption of consumer-centrality. The second raises the dormant issue of economic power, where firms' influence grows larger than that of the state, and democratic principles require intervention even where efficiency does not.

Protecting the strong from the weak, especially when 'weak' consumers hold legal power and influence, might very well be a moral imperative.

Subjects:
Competition Law, eBooks
Contents:
Introduction

Part I: The Setting of Antitrust
1. 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 2 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
3. 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
4. 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
5. 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
6. Formalization of Fairness: Keeping Everyone Envy-Free
I. The Framework of Envy-Freeness
II. Complications and Extensions
III. Implementation to Antitrust
7. 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

Series: Hart Studies in Competition Law

Shaping Private Antitrust Enforcement in Europe ISBN 9781849468039
To be published February 2018
Hart Publishing
£60.00
The EU's Antitrust Alternative ISBN 9781509910670
To be published April 2017
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The More Economic Approach to EU Antitrust Law ISBN 9781849466967
Published September 2016
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Fairness in Antitrust: Protecting the Strong from the Weak ISBN 9781509907069
Published July 2016
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Sanctions in EU Competition Law: Principles and Practice ISBN 9781509907038
Published July 2016
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Anti-Cartel Enforcement in a Contemporary Age: The Leniency Religion ISBN 9781849466905
Published September 2015
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£78.00
Public Procurement and the EU Competition Rules 2nd ed ISBN 9781849466127
Published May 2015
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£95.00
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£49.99 + £10.00 VAT
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Sanctions in EU Competition Law: Principles and Practice (eBook) ISBN 9781782253822
Published April 2014
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£30.82 + £6.17 VAT
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Fairness in Antitrust: Protecting the Strong from the Weak ISBN 9781849465151
Published April 2014
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£50.00
Sanctions in EU Competition Law: Principles and Practice ISBN 9781849465182
Published April 2014
Hart Publishing
£75.00
European Merger Remedies: Law and Policy ISBN 9781849464116
Published December 2013
Hart Publishing
£70.00
Competition Laws, Globalisation and Legal Pluralism: China's Experience ISBN 9781849464321
Published November 2013
Hart Publishing
£58.00
Competition Laws, Globalisation and Legal Pluralism: China's Experience (eBook) ISBN 9781782252207
Published November 2013
Hart Publishing
£45.82 + £9.17 VAT
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Joint Ventures and EU Competition Law ISBN 9781841137933
Published November 2013
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£110.00
Joint Ventures and EU Competition Law (eBook) ISBN 9781782253471
Published November 2013
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£79.16 + £15.83 VAT
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Cross-Border EU Competition Law Actions ISBN 9781849463744
Published June 2013
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£80.00
Cross-Border EU Competition Law Actions (eBook) ISBN 9781782251606
Published June 2013
Hart Publishing
£66.66 + £13.33 VAT
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Private Enforcement of Competition Law in Ireland (eBook) ISBN 9781782251231
Published April 2013
Hart Publishing
£41.66 + £8.33 VAT
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Private Enforcement of Competition Law in Ireland ISBN 9781849464130
Published April 2013
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£53.00
State Aid and the European Economic Constitution (eBook) ISBN 9781782250517
Published December 2012
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£45.82 + £9.17 VAT
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State Aid and the European Economic Constitution ISBN 9781849461054
Published December 2012
Hart Publishing
£55.00
£70.82 + £14.17 VAT
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