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Dynamic Competition In Antitrust Law

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  • J. Gregory Sidak
  • David J. Teece

Abstract

How would competition policy be shaped if it were to explicitly favor Schumpeterian (dynamic) competition over neoclassical (static) competition? Schumpeterian competition is the kind of competition that is engendered by product and process innovation. Such competition does not merely bring price competition. It tends to overturn the existing order. A “neo-Schumpeterian” framework for antitrust analysis that favors dynamic competition over static competition would put less weight on market share and concentration in the assessment of market power and more weight on assessing potential competition and enterprise-level capabilities. By embedding recent developments in evolutionary economics, the behavioral theory of the firm, and strategic management into antitrust analysis, one can develop a more robust framework for antitrust economics. Such a framework is likely to ease remaining tensions between antitrust and intellectual property. It is also likely to reduce confidence in the standard tools of antitrust economics when the business environment manifests rapid technological change. It appears that the Antitrust Division of the U.S. Department of Justice (DOJ) has attempted to incorporate more dynamic analysis, but the result has been inconsistent across different mergers and different doctrinal areas of antitrust law. Moreover, a complicating factor in the transformation of the law is the fact that the federal courts have, by embracing the reasoning in the Merger Guidelines promulgated several decades ago by the Antitrust Division and the Federal Trade Commission (FTC), caused antitrust case law to ossify around a decidedly static view of antitrust. Put differently, in the years since 1980, the Division and the FTC have successfully persuaded the courts to adopt a more explicit economic approach to merger analysis, yet one that has a static view of competition. The result is not a mere policy preference. It is law. To change that law to have a more dynamic view of competition will therefore require a sustained intellectual effort by the enforcement agencies (as well as by scholars and practitioners) that, once more, engages the courts to re-examine antitrust law, as they did in the late 1970s during the ascendancy of the Chicago School, when antitrust law became infused with its current, static understanding of competition. A necessary but not sufficient condition for that effort is a public process by which the Division and the FTC revisit and restate the Merger Guidelines in a manner that clarifies and defends the role of dynamic competition in antitrust analysis. We therefore applaud the announcement of the antitrust agencies in September 2009 to solicit public comment on the possibility of updating the Merger Guidelines. Assuming that the Division and the FTC decide to revise the existing Merger Guidelines, those revised guidelines (and useful complementary undertakings, such as generalized guidelines on market power and remedies) then will require leadership by the enforcement agencies to persuade the courts that antitrust doctrine should evolve accordingly. That neo-Schumpeterian process may take a decade or longer to accomplish, but it is a path that we believe the Roberts Court is willing to travel.

Suggested Citation

  • J. Gregory Sidak & David J. Teece, 2009. "Dynamic Competition In Antitrust Law," Journal of Competition Law and Economics, Oxford University Press, vol. 5(4), pages 581-631.
  • Handle: RePEc:oup:jcomle:v:5:y:2009:i:4:p:581-631.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhp024
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    Citations

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    Cited by:

    1. Stephen W. Davies & Peter L. Ormosi, 2012. "A Comparative Assessment Of Methodologies Used To Evaluate Competition Policy," Journal of Competition Law and Economics, Oxford University Press, vol. 8(4), pages 769-803.
    2. Patrice Bougette & Oliver Budzinski & Frédéric Marty, 2023. "In the Light of Dynamic Competition: Should We Make Merger Remedies More Flexible?," Working Papers AFED 23-01, Association Francaise d'Economie du Droit (AFED).
    3. Xie, Yu & Wu, Desheng, 2024. "How does competition policy affect enterprise digitization? Dual perspectives of digital commitment and digital innovation," Journal of Business Research, Elsevier, vol. 178(C).
    4. Dyah Wulan Sari & Noor Aini Khalifah & Suyanto Suyanto, 2016. "The spillover effects of foreign direct investment on the firms’ productivity performances," Journal of Productivity Analysis, Springer, vol. 46(2), pages 199-233, December.
    5. Sruthi Thatchenkery & Riitta Katila, 2023. "Innovation and profitability following antitrust intervention against a dominant platform: The wild, wild west?," Strategic Management Journal, Wiley Blackwell, vol. 44(4), pages 943-976, April.
    6. Mazhuvanchery Shiju Varghese, 2010. "The Indian Competition Act: A Historical and Developmental Perspective," The Law and Development Review, De Gruyter, vol. 3(2), pages 241-270, May.
    7. Anton Miglo, 2011. "The Development of Property Rights for Intellectual Property," Journal of Economics and Behavioral Studies, AMH International, vol. 3(4), pages 224-234.
    8. Anzhou Zhang, 2022. "Competition and the negative expected social value of cost‐reducing innovation," Manchester School, University of Manchester, vol. 90(1), pages 59-76, January.
    9. Frank R. Lichtenberg, 2022. "The effects of dynamic and static competition on prescription drug prices in Denmark, 1997–2017," Journal of Evolutionary Economics, Springer, vol. 32(4), pages 1155-1173, September.
    10. Kwon, Seokbeom & Marco, Alan C., 2021. "Can antitrust law enforcement spur innovation? Antitrust regulation of patent consolidation and its impact on follow-on innovations," Research Policy, Elsevier, vol. 50(9).
    11. João Augusto Ferreira Freire & Eduardo Gonçalves, 2022. "Cooperation in Innovative Efforts: a Systematic Literature Review," Journal of the Knowledge Economy, Springer;Portland International Center for Management of Engineering and Technology (PICMET), vol. 13(4), pages 3364-3400, December.
    12. Patrick Mellacher, 2023. "Growth, Inequality and Declining Business Dynamism in a Unified Schumpeter Mark I + II Model," Graz Economics Papers 2023-04, University of Graz, Department of Economics.
    13. Cavenaile, Laurent & Celik, Murat Alp & Tian, Xu, 2021. "The Dynamic Effects of Antitrust Policy on Growth and Welfare," Journal of Monetary Economics, Elsevier, vol. 121(C), pages 42-59.
    14. Anthea Paelo & Simon Roberts, 2022. "Competition and Regulation of Mobile Money Platforms in Africa: A Comparative Analysis of Kenya and Uganda," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 60(3), pages 463-489, May.
    15. Zhiyong Liu & Yue Qiao, 2012. "Abuse of Market Dominance Under China’s 2007 Anti-monopoly Law: A Preliminary Assessment," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 41(1), pages 77-107, August.
    16. Teece, David J., 2016. "Dynamic capabilities and entrepreneurial management in large organizations: Toward a theory of the (entrepreneurial) firm," European Economic Review, Elsevier, vol. 86(C), pages 202-216.
    17. Frank R. Lichtenberg, 2021. "Are drug prices subject to creative destruction? Evidence from the US, 1997–2017," Health Economics, John Wiley & Sons, Ltd., vol. 30(8), pages 1910-1932, August.
    18. Kim, Incheol & Lee, Suin & Sharma, Bina, 2023. "Competition law reform and firm performance: Evidence from developing countries," Emerging Markets Review, Elsevier, vol. 56(C).
    19. Richard Arena, 2017. "Schumpeter and Schumpeterians on competition: some policy implications," Journal of Evolutionary Economics, Springer, vol. 27(1), pages 161-186, January.
    20. Daniel F. Spulber, 2013. "How Do Competitive Pressures Affect Incentives to Innovate When There Is a Market for Inventions?," Journal of Political Economy, University of Chicago Press, vol. 121(6), pages 1007-1054.
    21. Julie Bon & San Sau Fung & Alan Reilly & Terry Ridout & Robert Ryan & Mike Walker, 2021. "Recent Developments at the CMA: 2020–2021," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 59(4), pages 665-692, December.

    More about this item

    JEL classification:

    • K20 - Law and Economics - - Regulation and Business Law - - - General
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • L40 - Industrial Organization - - Antitrust Issues and Policies - - - General
    • L41 - Industrial Organization - - Antitrust Issues and Policies - - - Monopolization; Horizontal Anticompetitive Practices
    • L50 - Industrial Organization - - Regulation and Industrial Policy - - - General
    • O34 - Economic Development, Innovation, Technological Change, and Growth - - Innovation; Research and Development; Technological Change; Intellectual Property Rights - - - Intellectual Property and Intellectual Capital

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