New Working Paper - Redefining the Relevant Market: Abandonment or Return to Brown Shoe
Hi everyone, I know it has been a while since I last posted, but I promise I am working on some significant scholarship that I will be able to share soon.
Today I want to release a new working paper on what is perhaps the most crucial concept in antitrust law - defining relevant markets. The process essentially requires litigants and courts to construct a “market” of interchangeable products in order to measure the level of competition between the firms. Defining a relevant market allows courts and litigants to measure how much market power (which is, in most cases, the market share) a defendant has. Defining a relevant market is essential in antitrust litigation and can often solely determine the outcome of a case.
Since the 1980s, the process has become exceptionally dependent on complex and unnecessary econometric analysis. But the process was not always this way. Mostly starting in the 1940s, the Supreme Court continuously refined its process to define relevant markets culminating in the 1962 Brown Shoe decision. The Brown Shoe process was based predominantly on common sense and readily accessible qualitative market data.
In the paper, I assert that the entire econometric process to define relevant markets should be scrapped entirely. In its place, I argue that either bright-line financial metrics, such as revenue, should determine the legality of most antitrust conduct or that the Brown Shoe process should be exclusively used to define relevant markets.
This article is a polished draft and is currently being submitted to law reviews for publication. Any commentary is welcome.
The paper can be downloaded here.
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