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Richard Markovits (2003)
Why Kaplow and Shavell's 'Double-Distortion Argument' Articles Are Wrong
This Article provides recommendations both for improving the accuracy of applications of the Sherman Act and Clayton Act to mergers and acquisitions (M&A)s and for creating morally-desirable (M&A) policies. It defines the specific-anticompetitive-intent and lessening-competition tests of illegality that current U.S. antitrust law applies to (M&A)s; explains why neither classical economic markets nor antitrust markets can be defined non-arbitrarily, and why it is therefore inaccurate and unconstitutional to use market-oriented approaches to analyzing the illegality of (M&A)s under current U.S. antitrust law; outlines appropriate non-market-oriented protocols for determining the illegality of (M&A)s under the Sherman and Clayton Acts—whether the (M or A) was motivated by specific anticompetitive intent or would tend to lessen competition; delineates the liberal conception of justice and various egalitarian conceptions of the moral good and argues that in the U.S. those moral norms should be used to evaluate antitrust policies; outlines the protocol that is economically efficient to use to predict the economic efficiency of particular (M or A)s or particular (M&A) policies; and considers the relevance of the economic efficiency and competitive impact of any (M or A) or any (M&A)-focused antitrust policy for its moral desirability.
Antitrust Bulletin – SAGE
Published: Jun 1, 2023
Keywords: antitrust-policy-relevant moral norms; competitive-impact-analysis protocol; economic-efficiency-impact-analysis protocol; moral relevance of economic-efficiency/seller-competition impacts; tests of antitrust illegality
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