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Competition as Public Policy


American Bar Association


Libro - 13 - A47


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American Bar Association




Competition As Public Policy The Symposium 1. Introduction: The Importance of Competition in Creating an Economy Driven by Consumer Choice 2. Historical Overview of the Role of Competition in Public Policy in the United States 3. Deregulation and the Legacy Costs of Market Regulation 4. The Financial Crisis: Market Failure or Regulatory Failure 5. Health Care: Capable of a Market-based Solutionan Arena in Which Competition Cannot Work 6. State Aid: Can Markets Recover from Intervention by the Visible Hand Continuing the Debate Chapter II Competition Policy iii Distressed Industries: Keynote Remarks Introduction Lessons from the Great Depression Economic Analysis of Distressed Industries and Companies 1. General Principles 2. Transitory Distress vs. Longer Term Decline 3. Financial Distress vs. Underlying Lack of Competitiveness 4. Immediate Impact vs. Long-Term Industry Structure The Financial Sector 1. Implications for Antitrust Enforcement 2. Alleviating Financial Stress by Reducing Competition 3. “Ruinous Competition” 4. The Failing Firm Defense 5. Exclusionary Conduct E. Conclusions Chapter III Who Started It? Who Stopped It?: A Modest Proposal to Reverse the Rankings of Type 1 and Type 2 Errors in Predation Jurisprudence Chapter IV Regulatory Change Then and Now A. Forces Producing Recent Regulatory Change B. How Does the Financial Services Industry Fit into This History? C. Has the Age of Deregulation Ended Chapter V Financial Regulation and the Current Crisis: A Guide for Antitrust A. Introduction B. Finance and Financial Regulation 1. Understanding Finance a. Finance Is Special b. Financial Intermediaries, Financial Facilitators c. Securitization 2. Financial Regulation a. Market Failure b. Government Failure 3. Types of Financial Regulation C. The Special Place of Housing Policy 1. An Overview 2. Fannie Mae and Freddie Mac 3. The Community Reinvestment Act D. Financial Regulation versus Competition: A Selective History 1. Banking Regulation a. Before the 1930s b. The 1930s through the 1960s e. Procompetitive Policies since the Early 1970s 2. Insurance Regulation 3. Securities Regulation 4. The Credit Rating Agencies E. The Debacle, the Crisis, and Too-Big-to-Fail 1. The Debacle and the Crisis 2. Too-Big-To-Fail a. The Failure of a Small Bank b. The Failure of a Large Bank e. Understanding TBTF F. What Is to Be Done? An Antitrust Competition Perspective 1. Eliminate Exemptions from the Antitrust Laws 2. Maintain the Merger Guidelines Perspective in Merger Reviews 3. Don’t Be Distracted by TBTF 4. Modifying Financial Regulation to Encourage More Competition a. Allow Banks to Pay Interest on Business Checking Accounts b. Allow Nonfinancial Companies to Own Banks c. Repeal the Community Reinvestment Act d. End Collective Filing of Insurance Rates e. Offer a Federal Insurance Charter f. Replace the Regulation of Credit Rating Agencies with a Regulatory Structure that Would Encourage Competition 5. Beware of Proposals for Regulatory Simplification Appendix: Primer on “Capital” and “Leverage” Chapter VI Competition Policy and Organizational Fragmentation in Health Care A. How Competition Policy Tried to Deal with Fragmentation and Why lt Failed 1. Antitrust Law’s Two-Pronged Approach B. Antitrust as a (Mostly Unsuccessful) Antidote to Fragmentation.. C. Aftermath: Concentration and Fragmentation in a Disintermediated Market D. Consumer Driven Health Care: A Flawed Vehicle for Change E. Conclusion Chapter Vil The Visible Hand: Government Hand-Outs and Hand-ups A. The Issue: How Do Courts and Competition Authorities Regulate Government Intervention  B. The EU Compared with Other International Organizations C. The EU’s Ability to Regulate Government Intervention D. The State Aid Notification Process E. Why Has the EU Developed Such a Sophisticated Regime for Monitoring and Enforcing State Aid Law F. What is State Aid G. Some Specific Forms of Aid 1. State Shareholdings and Capital Injections 2. State Guarantees H. Automatic Authorization of Certain State Aid 1. State Aid Which May Be Approved Following Notification to the European Commission 1. The Commission’s Application of Article 87(3) 2. Aid to Areas with Abnormally Low Living Standards under Article 87(3)(a) 3. Aid to Promote the Execution of an Important Project of Common European Interestto Remedy a Serious Disturbance in the Economy of a Member State under Article 87(3)(b) 4. Aid to Facilitate the Development of Certain Economic Activities under Article 87(3)(c) 5. Operating Aid 6. Rescue and Restructuring Aid J. A Bird’s Eye View—A Statistical Analysis of EU Cases K. Some Thoughts on Transatlantic Consistency Chapter VIII Where We’ve Been (Panel Transcript) Chapter IX Case Studies: Electricity (Panel Transcript) Chapter X Financial Issues (Panel Transcript) Chapter XI The Role of Competition in the Market for health Care (Panel Transcript) Chapter XII The Visible Hand: Government Hand-outs and Hand-ups (Panel Transcript) 


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