Albert A. Foer Liber Amicorum: A Consumer Voice in the Antitrust Arena, Nicolas CHARBIT and Sonia AHMAD (dir.)

Nicolas Charbit, Sonia Ahmad (Editors)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

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This book is a tribute to a committed man. After various experiences as a practitioner and even a business leader, Albert Foer founded the American Antitrust Institute (AAI) in 1998 to foster a permanent, critical and constructive debate on positive law in the United States with the ambition of saving the soul of antitrust. His commitment is best described by his son Franklin Foer, who describes him as a disciple of Judge Brandeis ("Brandeis in the Bones: Bert Foer’s Antitrust Inheritance - and Legacy") and by Barry C. Lynn, who links his commitment to his defence of democracy ("Bert Foer - And his Plot to Save Democracy"). Logically, the second part of the book was intended to delve deeper into the rationale for antitrust. Eleanor M. Fox delivers, unsurprisingly, a very nice plea that antitrust should be at the service of the people and not at the service of a privileged minority ("Does Antitrust Have a Heart?"). Peter C. Carstensen prioritizes ends by placing the defence of competition as a process at the top ("The Goals of Competition Law: Ends v. Means"). Chris Sagers denounces the ideology behind the consensus that antitrust is now a purely technical and non-ideological area of application ("Bert Foer, the American Antitrust Institute, and the Antitrust ’Consensus’"). Michael A. Carrier also denounces the illusions that may have been dangled ("Four Innovation Myths") and, in this vein, Maurice E. Stucke insists on the vigilance that antitrust requires, even if the harvest of its fruits puts the gardener’s patience to the test ("The Patient Gardener").

Then, a more concrete approach to implementation is examined: the impact of leniency programmes on criminal prosecutions by Douglas H. Ginsburg and Cecilia Cheng ("The Decline in US Criminal Antitrust Cases: ACPERA and Leniency in an International Context"); the proper articulation between public and private actions by Harry First and Spencer Weber Waller ("Pairing Public and Private Antitrust Remedies"); the effectiveness of remedies in merger control by John Kwoka ("The Promise and the Perils of Conduct Remedies in Merger Review"); and buyer power with John B. Kirkwoord (Buyer Power Today). Sectoral issues are also addressed, such as the labour market by Randy M. Stutz ("Mr. Magoo at the Drive-Through: The Right Antitrust Lens for Labor-Market Restraints in Franchise Settings"), essential patents by Richard M. Brunell ("Competition Policy and Standard-Essential Patents: Will the DOJ’s Policy Reversal Endure?"), the pharmaceutical sector with special reference to restrictive practices on insulin by Warren Grimes ("Invidious Price Discrimination in the Sale of Rapid-Acting Insulin: Is There an Antitrust Remedy?") and on other therapeutic substances by Steve D. Shadowen ("No-Generics Restraints on Fixed-Dose Combination Pharmaceuticals").

A window is open on foreign experiences with Julián Peña ("Cultural Challenges to Private Enforcement in Latin America") and Kexin Li ("People’s Livelihood-Oriented Government Intervention in Market Economy: a Look at China’s 12-Year Antitrust Enforcement").

Finally, the window on the future and how to meet its challenges should be opened even wider. Robert H. Lande and Sandeep Vaheesan are working on this. After presenting an impressive annex with figures on the lax application of merger control with its dramatic consequences, they propose a simple, predictable and effective model for conglomerate merger rules based on absolute thresholds ("Preventing the Curse of Bigness Through Conglomerate Merger Legislation"). Robert Litan, for his part, invokes the need not to forget the fight against cartels and underlines how new technological means have multiplied the number and participants in the same cartel. He recommends making better use of leniency programmes and class actions ("Collusion Is a Bigger Deal than Is Often Recognized: It Should Not Get Lost in the Debate About the Future of Antitrust").

The cycle that gave a reducing prism to American antitrust seems to be over. And finally Albert Foer was before all the others "the original antitrust hipster" (Barry C. Lynn).

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  • University of Paris I Panthéon-Sorbonne

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Catherine Prieto, Albert A. Foer Liber Amicorum: A Consumer Voice in the Antitrust Arena, Nicolas CHARBIT and Sonia AHMAD (dir.), February 2021, Concurrences N° 1-2021, Art. N° 98929, p. 263

Publisher Concurrences

Date 14 October 2020

Number of pages 414

Visites 34

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