Antitrust, Innovation, and Competitiveness

By Thomas M. Jorde; David J. Teece | Go to book overview

2
Antitrust Law as Industrial Policy: Should Judges and Juries Make it?

PHILLIP AREEDA

For 100 years, the Sherman Act has been at the core of America's industrial policy. Whether antitrust law can meet the challenge of that office for the next century depends on (1) its receptivity in principle to efficiency, growth, and innovation; (2) its ability to implement its principles in practice; and (3) the availability of supplementary mechanisms to insulate an occasional arrangement from the usual antitrust tribunals.

Industrial policy, in its most comprehensive sense, is the sum of everything that affects production and innovation, as well as consumption and investment. No longer so confident that our mix of policies enables or encourages American industry to rival foreign efficiency and innovation, I ask whether antitrust law supports or impedes productivity, efficiency, and innovation, discussing briefly disputes about these matters and what courts actually do. I then consider some of the practical impediments in antitrust litigation to giving efficiency and innovation full measure, concluding with a reminder that other institutions can supplement antitrust law where it proves to be deficient.


THE BREADTH AND OBJECTS OF INDUSTRIAL POLICY

Industrial Policy Generally

"Industrial policy" is a term without precise meaning. It embraces the mix of government decisions affecting the demand for and the supply of goods and services, both for further production and for ultimate consumption. Taking other relevant social values into account, industrial policy seeks to maximize goods and services desired by our people as consumers and as citizens. This broad definition reminds us that the composition, cost, progress, and volume of the national product is affected by virtually every public policy--far beyond those in the conventional basket of competition policies.

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Antitrust, Innovation, and Competitiveness
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Notes viii
  • Contents ix
  • Contributors xi
  • 1 - Introduction 3
  • Notes 25
  • References 27
  • 2 - Antitrust Law as Industrial Policy: Should Judges and Juries Make It? 29
  • Notes 45
  • 3 - Innovation, Cooperation, and Antitrust 47
  • Notes 63
  • References 68
  • Appendix: National Cooperative Research and Commercialization Act (ncrca) 71
  • 4 - Antitrust: Source of Dynamic and Static Inefficiencies? 82
  • Notes 95
  • References 96
  • 5 - Agreements Between Competitors 98
  • Notes 114
  • 6 - Ignorance and Antithrust 119
  • Notes 132
  • 7 - Antitrust Lenses and the Uses of Transaction Cost Economics Reasoning 137
  • Notes 158
  • References 161
  • 8 - Monopoly Conduct, Especially Leveraging Power from One Product or Market to Another 165
  • 9 - Market Structure and Technical Advance: The Role of Patent Scope Decisions 185
  • Notes 219
  • 10 - Conclusion 233
  • Index 235
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