Research in Law and Economics: Volume 22

We would like to thank the University of Washington Daniel J. Evans School of Public Affairs and the Haglund Kelley Horngren Jones & Wilder LLP law firm for financial support.

Mine owners during the Klondike gold rush of 1898–1899 used two types of contracts to coordinate workers and their capital: wage contracts and lay (or share) contracts. The key interesting feature of this gold rush was the severe climate and the constraints it placed on the miners. I show that an “off the shelf” incentive model can explain the pattern of contracts, once one understands how the extreme weather environment influenced the behavior of miners.

The objective of this paper is to survey the recent developments in economic theories of buyer power and using the theories as a guide to discuss how antitrust cases involving buyer power can be analysed. An important conclusion that emerges from this survey is that the competition effects of buyer power are quite different depending on whether it is monopsony power against powerless suppliers or countervailing buyer power against large suppliers with market power. A proposed framework of antitrust analysis is presented, and issues related to market definitions and determination of buyer power are discussed.

This paper generalizes the critical loss concept of Harris and Simons to account for a broader range of possible cost structures. Our analysis presents a specialized market-level equilibrium for a relatively homogeneous good in which the Harris and Simons’ critical loss structure is appropriate for market definition. Then, we broaden the equilibrium and propose a generalized critical loss analysis. Of course, for relatively differentiated goods, market definition analysis would use firm-level modeling and therefore the standard market-level critical loss modeling could be inappropriate.

This paper surveys published economic studies and judicial decisions that contain 1,040 quantitative estimates of overcharges of hard-core cartels. The primary finding is that the median long-run overcharge for all types of cartels over all time periods is 25.0%:18.8% for domestic cartels and 31.0% for international cartels. Cartel overcharges are positively skewed, pushing the mean overcharge for all successful cartels to 43.4%. Convicted cartels are on average as equally effective at raising prices as unpunished cartels, but bid-rigging conduct does display somewhat lower mark-ups than price-fixing cartels. These findings suggest that optimal deterrence requires that monetary penalties ought to be increased.

John McGee's 1958 paper, “Predatory Price Cutting: The Standard Oil (NJ) Case,” has had an astonishing influence on both antitrust policy in the United States and economic lore. McGee argued that predatory pricing is irrational and his analysis of the Standard Oil Company Matter, decided in 1911, led him to conclude that the Record in this case does not show that Standard Oil engaged in predatory pricing. This single publication appears to serve as a foundation of the U.S. Supreme Court's position on the issue of predatory pricing, as well as the assertion by many economists that predatory pricing is irrational and rarely occurs.

Numerous arguments have been advanced during the past 25 years that predatory pricing can be a rational strategy. As to McGee's empirical findings, there has been no re-examination of the Record of the Standard Oil case to determine the validity of his finding that the trial “Record” does not support the claim that Standard Oil engaged in predatory pricing.

We examined this Record and have found that the trial Record contains considerable evidence of predatory pricing by Standard Oil. Therefore, the Record does not support McGee's conclusion that Standard Oil did not engage in predatory pricing.

Thus, the decisions of the Supreme Court in recent years, as well as the opinions of many economists, concerning predatory pricing are not consistent with either current theory or the empirical record.

It is well established that courts should and in fact do require a higher level of care by people working within their profession than by amateurs. Adequate care is simply more within reach for the professional than for the amateur (less ‘costly’). This article analyzes whether a further distinction between the professional and the amateur should influence the way courts set negligence standards: the professional is more likely to invest in acquiring information concerning negligence standards, and the professional is hence more likely than the amateur to be influenced by the standards. This issue is analyzed for the case where the professional is the injurer and the amateur is the victim. The amateur is assumed not to acquire any information concerning standards, and the behavior of the amateur is taken as exogenously fixed. Under this assumption, the negligence standard applied to the professional may be either higher or lower than first best, depending on whether care levels by the injurer and the victim are substitutes or complements and on whether, in the absence of information, the amateur over- or under-estimates the standard applied to him or her.

Traditional tort law does not allow a victim of exposure to a toxic substance to seek damages without evidence of actual loss. Given the difficulty of collecting damages after a long latency period, however, we examine the desirability of granting exposure victims an independent cause of action for medical monitoring at the time of exposure. We show that such a cause of action is not necessary to induce victims to invest in efficient monitoring. It can, however, increase incentives for injurer care, but only at the cost of greater litigation costs. The general reluctance of courts to adopt a cause of action reflects their recognition of this trade-off.

This article explores the trade-offs between market concentration and multi-market participation in evaluating proposed mergers. For complementary demands, the price-decreasing effect of multi-market participation provides a countervailing influence on the price-increasing effect of higher concentration. The larger the footprint of the multi-market provider, the greater the likelihood the price-decreasing effect dominates. Higher concentration may be consistent with non-increasing prices despite the absence of merger economies. In the case of substitutes, multi-market participation compounds the price-increasing effect of higher concentration. Merger guidelines that place undue emphasis on market concentration can lead policymakers to block mergers that enhance consumer welfare and vice versa.