Comment to the New York Senate Committee on Consumer Protection in Connection with Its Pending Consideration of the Twenty-First Century Antitrust Act (S.933)

17 Pages Posted: 8 Jun 2021

See all articles by Tad Lipsky

Tad Lipsky

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

George Mason University - Antonin Scalia Law School, Faculty; U.S. Court of Appeals for the District of Columbia Circuit

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty

Date Written: June 4, 2021

Abstract

Modern antitrust laws (including the federal antitrust laws and the antitrust laws of other states, as well as the cognate laws of numerous other jurisdictions around the world) generally include provisions that limit unilateral business conduct that may create, protect, or extend monopoly power by unreasonably exclusionary practices. In contrast, New York’s main antitrust law, the Donnelley Act of 1899, contains no such provision. The GAI recognizes that adding such a provision to the Donnelley Act is an intended objective of S.933.

There are several serious questions, however, raised by key aspects of S.933. Specifically, while S.933 §3 adopts a prohibition on monopolization similar to that found in Section 2 of the Sherman Act, 15 USC § 2, it also includes a prohibition on “abuse of dominance.” S.933 provides limited information regarding the definitions of “dominance” and “abuse.” Rather, S.933 delegates very broad discretion to define these terms to the New York Attorney General (subject to a specific form of legislative veto). This approach presents a number of serious risks and uncertainties. For reasons explained more fully below, the Committee should consider withholding any favorable recommendation on S.933 so long as it contains the abuse-of-dominance provision.

Keywords: Donnelley Act of 1899, Twenty-First Century Antitrust Act, S.933, Sherman Act, abuse of dominance, unilateral business conduct, monopoly power, exclusionary practices

JEL Classification: K2, K20, K21

Suggested Citation

Lipsky, Tad and Ginsburg, Douglas H. and Wright, Joshua D. and Kobayashi, Bruce H. and Yun, John M., Comment to the New York Senate Committee on Consumer Protection in Connection with Its Pending Consideration of the Twenty-First Century Antitrust Act (S.933) (June 4, 2021). George Mason Law & Economics Research Paper No. 21-12, Available at SSRN: https://ssrn.com/abstract=3860427 or http://dx.doi.org/10.2139/ssrn.3860427

Tad Lipsky (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

Douglas H. Ginsburg

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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