December 2011 Vol. 110 No. 3 THE REVIEW
ARTICLES

Rethinking Merger Efficiencies

Daniel A. Crane

The two leading merger systems—those of the United States and the European Union—treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power. The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. The most likely positive explanations for the asymmetry stem from institutional frictions between the lawyer and economist classes in the antitrust agencies, self-preservationist biases by antitrust regulators, and misplaced ideological opposition to industrial concentration. In principle, the probability-adjusted net present value of merger risks should be treated symmetrically with the probabilityadjusted net present value of merger efficiencies.

  READ MORE    //  VIEW PDF

Plus Factors and Agreement in Antitrust Law

William E. Kovacic, Robert C. Marshall, Leslie M. Marx, Halbert L. White
READ MORE    //  VIEW PDF

Property's Morale

Nestor M. Davidson
READ MORE    //  VIEW PDF
NOTES

Unfit for Prime Time: Why Cable Television Regulations Cannot Perform Trinko's "Antitrust Function"

Keith Klovers

Until recently, regulation and antitrust law operated in tandem to safeguard competition in regulated industries. In three recent decisions-Trinko, Credit Suisse, and Linkline-the Supreme Court limited the operation of the antitrust
laws when regulation "performs the antitrust function." This Note argues that cable programming regulations-which are in some respects factually similar to the telecommunications regulations at issue in Trinko and Linkline-do not perform the antitrust function because they cannot deter anticompetitive conduct. As a result, Trinko and its siblings should not foreclose antitrust claims for damages that arise out of certain cable programming disputes.

  READ MORE    //  VIEW PDF
& Other Current Events

Lost in Translation: The Accidental Origins of Bond v. United States

One of the unusual features of cases about the constitutionality of federal statutes is that they are...

Foreword: What Books on Law Should Be

I have thought it might be useful to our profession, and appropriate to a foreword to a collection of...

A Pragmatic Republic, If You Can Keep It

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law....

Classic Revisited – Frost for Lawyers: "The Best Thing That We're Put Here For's to See"

The Poetry of Robert Frost: The Collected Poems. Edited by Edward Connery Lathem....

Racial Templates

A Wicked War: Polk, Clay, Lincoln, and the 1846 U.S. Invasion of Mexico. By Amy S. Greenberg....
MAILING LIST
Sign Up to Join Our Mailing List