Barak Y Orbach

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Scholarly Contributions

Chapters

• Orbach, B. (2023). Platform Neutrality. In Research Handbook on Abuse of Dominance and Monopolization.
• Orbach, B. Y., Sokol, D., & Fraser, E. (2017). The Chicago Tradition and Judge Ginsburg. In DOUGLAS H. GINSBURG: AN ANTITRUST PROFESSOR ON THE BENCH(pp 43-56).
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  This book chapter examines the antitrust philosophy of Judge Douglas Ginsburg and his contribution to the development of antitrust law.
• Orbach, B., & Avraham, R. (2015). Squeeze Claims: Refusals to Deal, Essentials Facilities, and Price Squeezes. In Oxford Handbook on International Antitrust Economics(pp 120-131). Oxford University Press. doi:10.1093/oxfordhb/9780199388592.013.0006
• Orbach, B. Y., & Avraham, R. (2014). Squeezing Claims: Refusals to Deal, Essential Facilities, and Price Squeezes. In Oxford Handbook on International Antitrust Economics (Roger Blair & Daniel Sokol eds., 2014)(pp 120-130). USA: Oxford University Press.
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  Antitrust squeezing claims may arise whenever unilateral or collective actions of some market participants cripple the ability of other market participants to compete effectively. One set of squeezing claims refer to restrictions on trade in intermediate products that are needed for production. Such claims essentially ask courts to craft duties to deal, which in turn raise many philosophical and ideological objections and their enforcement can be costly. We offer a framework for the understanding of squeezing claims that involve refusals to deal and unfavorable contractual terms.

Journals/Publications

• Orbach, B. (2023). Policy realignment and competition in attention markets. Journal of Antitrust Enforcement, 11(2). doi:10.1093/jaenfo/jnad028
• Orbach, B. (2023). The Friction Paradox: Intermediaries, Competition, and Efficiency. Antitrust Bulletin, 68(2). doi:10.1177/0003603X231162999
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  Commentators sometimes say that the elimination of impediments to trade—namely, market friction—tends to expand trade and foster competition. This casual assumption is known to be erroneous. Antitrust law recognizes that restraints of trade—which are forms of market friction—are often pro-competitive and frequently have both pro- and anticompetitive effects. Accordingly, antitrust law prohibits unreasonable restraints of trade, but not all restraints of trade. Trust-busting advocates promote a different approach to market friction. They argue that the antitrust laws intend to maintain fragmented industries and favor small businesses. This approach, which has been embraced by the antitrust agencies in recent years, implies that high-friction markets are more competitive than low-friction markets. It is an expression of a phenomenon that can be called the “ friction paradox ”: the elimination of market friction is desirable until this goal is accomplished. Notable examples of the friction paradox include hostility toward new generations of market intermediaries, such as supermarkets, chain stores, department stores, big-box stores, digital platforms, and digital ecosystems. This article observes that antipathy for large intermediaries results in a willingness to sacrifice the core benefits of competition—low prices, convenience, efficiency, and innovation. It, therefore, argues that antitrust expressions of the friction paradox place competition policy at war with itself.
• Basuroy, S., Chisholm, D. C., Gil, R., Mckenzie, J., Orbach, B., Otten, C., & Weinberg, C. B. (2020). Technological change and managerial challenges in the movie theater industry. Journal of Cultural Economics, 1-24. doi:10.1007/s10824-019-09374-z
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  The recent rise of digital technology in the delivery of entertainment casts doubt among industry stakeholders on whether movie theaters will continue to be the primary channel of the release of motion pictures. Despite the growth of competing outlets due to the spread of digitalization, we argue that the movie theater industry may benefit from digital technologies as well. Enhancing the cinemagoing experience, better matching of the cinemagoing experience to consumer preferences, and improving capacity utilization are crucial if movie theaters are to continue having a pivotal role in the distribution of filmed entertainment. In particular, our data analysis demonstrates that the use of new digital technologies and “big data” may be one way to turn the current threats into future opportunities for movie exhibitors. Therefore, managerial strategies that aim to raise the value proposition of theaters by enhancing the cinemagoing experience, and that boost adaptability to rapidly changing consumer preferences about how and when they view filmed entertainment, ought to be studied and implemented.
• Orbach, B. (2020). D&O LIABILITY FOR ANTITRUST VIOLATIONS. Santa Clara law review, 59(3).
• Orbach, B. (2020). THE FIGHT OF THE CENTURY: ON THE EXPLOITATION OF SOCIAL DIVIDES. 14 NYU Journal of Law & Liberty, 14(2).
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  Pursuits of political and financial gains take many forms and sometimes include exploitations of social divides. Such exploitations harness and intensify animosity between groups to advance political and financial interests. The prevalent use of this technique in the 21st century has heightened concerns about its corrosive effects on democratic institutions. This Essay offers a case study of the phenomenon: the exploitations of racial divides surrounding the rise of Jack Johnson, the first black heavyweight boxing champion. At the height of the Jim Crow era, Johnson was the most hated, most feared, and most admired black man in America. He refused to accept the place given to blacks and displayed utter disregard of confrontation risks. His boxing bouts and fight films were promoted by conscious exploitation of racism, and their successful commercialization was exploited to advance censorship. In his most iconic fight, Johnson defeated the “white man’s hope,” a retired champion who was pressured to fight Johnson to reassert the title for the white race. Johnson’s victory sparked violent race riots and a crusade to bar the exhibition of fight films, arguably to restore law and order in America.
• Orbach, B. Y. (2020). D&O Liability for Antitrust Violations. SANTA CLARA LAW REVIEW.
• Orbach, B. Y. (2020). The Paramount Decrees: Lessons for the Future. Antitrust Source.
• Orbach, B. (2019). The Present New Antitrust Era. William and Mary law review, 60(4).
• Huang, L., & Orbach, B. (2018). Con Men and Their Enablers: The Anatomy of Confidence Games. Social Research, 85(4), 795-822.
• Huang, L., & Orbach, B. Y. (2018). Con Men and Their Enablers: The Anatomy of Confidence Games. Social Research: An International Quarterly.
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  President Trump’s philosophy for life, business, and politics prescribes the use of “leverage,” “truthful hyperbole,” and “play[ing] to people’s fantasies” to advance zero-sum deals. Many people believe that this philosophy made Trump a successful businessman and the greatest dealmaker in history. Many others believe that, by following this philosophy, Mr. Trump has proven that, with the aid of fixers and other enablers, a con man might escape the rule of law for decades, successfully use confidence schemes in a presidential campaign, and continue using confidence schemes in the Oval Office. We examine why people often disagree about what profit-seeking actions constitute unethical confidence games and about how the legal system should address cons. Con schemes have characteristics of both trade and fraud. Like trade, cons are voluntary exchanges, and, like fraud, cons are voluntary exchanges induced by misleading representations. Fundamentally, cons further voluntary exchanges that are not mutually beneficial. They benefit con men at the expense of their victims. We study the anatomy of confidence games and legal strategies that may reduce the social costs of cons. We argue that the present understanding of cons, as reflected through our legal system, political debates, and the literature, is impaired and that the prevalence of cons warrants greater attention of lawmakers, courts, and scholars.
• Orbach, B. Y. (2017). Antitrust Populism. NYU Journal of Law & Business, 15.
• Orbach, B. Y. (2016). Antitrust in the Age of Anxieties. Competition Law and Policy Debate, 2, 52.
• Orbach, B. Y. (2016). Hub-and-Spoke Conspiracies. Antitrust Source 1.
• Orbach, B. Y. (2015). A State of Inaction: Dystregulation and INcome Inequality. 16 Theoretical Inquiries in Law.
• Orbach, B. Y. (2015). A State of Inaction: Regulatory Preferences, Rent, and Income Inequality. A State of Inaction: Regulatory Preferences, Rent, and Income Inequality, 16, 45-68.
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  This Article explores several meanings of a regulatory preference for government inaction. It explains the rise to dominance of this inaction preference in the United States and its distorting influence on the perception and understanding of regulation. Specifically, the Article demonstrates how basic terms in regulation, such as “government failure,” “regulatory capture,” and “deregulation,” acquired misleading connotations suggesting that government inaction is always superior to government action. The Article further explains how, through government inaction, the U.S. legal system accommodates rent extraction—the profitable exploitation of market imperfections and favorable laws. Several developments in recent decades have considerably improved the capacity of very small groups in society to collect rents, namely, use talent and positional advantages to gain increasing levels of earnings. The Article argues that the parallel rise of the inaction preference has contributed to this trend, primarily because the availability of rent extraction opportunities draws talent that utilizes them with growing effectiveness. The purpose of the Article is to clarify several aspects of the relationships between regulation and rent extraction or, more precisely, to emphasize that government inaction may entail undesirable income effects.
• Orbach, B. Y. (2015). Antitrust Stare Decisis. Antitrust Source 1.
• Orbach, B. Y. (2015). The Durability of Formalism in Antitrust, 100. Iowa Law Review.
• Orbach, B. Y., & Braucher, J. (2015). Scamming: The Misunderstood Confidence Man. Yale Journal of Law & The Humanities 249.
• Orbach, B. Y. (2014). Was the Crisis in Antitrust a Trojan Horse?. Antitrust Law Journal, 79(3), 881-902.
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  The Trojan Horse Hypothesis, an unwritten antitrust myth, states that, through the purposeful use of confusing terminology, Robert Bork was able to disguise his conservative agenda as a “pro-consumer policy,” enlist people who disagreed with or did not endorse this agenda to promote it, and turn it into the law of the land. The terminology itself built on a set of flawed economic premises and an incorrect historical account of legislative history. In 1979, the Supreme Court adopted Bork’s confusing terminology without any meaningful scrutiny. With the terminology, the Court also adopted its flawed premises. In the decades that have followed the adoption of the “consumer welfare” standard, the Supreme Court has been increasingly using concerns regarding false-positive errors in antitrust to justify the use of procedural hurdles to narrow the scope of antitrust. This trend has several layers and explanations, including confusing terminology and flawed premises that the Court itself adopted.This Article examines the underlying sources of the Trojan Horse Hypothesis, its validity, and its significance to modern antitrust policy.
• Orbach, B. (2013). Foreword: Antitrust's pursuit of purpose. Fordham Law Review, 81(5), 2151-2156.
• Orbach, B. (2013). How antitrust lost its goal. Fordham Law Review, 81(5), 2253-2277.
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  Abstract: During the first seven decades following the enactment of the Sherman Act, competition was the uncontroversial goal of antitrust. The introduction of the consumer welfare standard led to the dissipation of "competition " as the goal of U.S. competition laws. This Essay explores how antitrust lost the goal of competition and argues that this goal should be restored. The Essay reevaluates several influential antitrust propositions. First, while "consumer welfare " was offered as a remedy for reconciling contradictions and inconsistencies in antitrust, the adoption of the consumer welfare standard sparked an enduring controversy, causing confusion and doctrinal uncertainty. In effect, the consumer welfare standard established the greatest antitrust paradox yet. Second, the smallbusiness interests hypothesis, which has often been used to explain the enactment of the Sherman Act, is inconsistent with the well-documented historical record. Third, the logic of Robert Bork's consumer welfare thesis requires restoration of "competition" as the goal of antitrust. The Essay concludes with a straightforward observation: "consumer welfare" may continue serving as the stated goal of U.S. competition laws but, practically, antitrust has always been and will always be about the preservation of competition.
• Orbach, B. (2013). The limits of antitrust scholarship. Texas Law Review, 91(5), 1165-1170.
• Orbach, B., & Rebling, G. C. (2013). The antitrust curse of bigness. Southern California Law Review, 85(3), 605-656.
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  Abstract: In 1882, Standard Oil's General Solicitor invented the corporate trusts that inspired the birth of the antitrust discipline. The public aversion to trusts in the United States gave the field its enduring and uniquely American name. As the discipline matured, distrust of business size took root in cases and doctrines. Justices Louis Brandeis and William Douglas wrote the narrative into early case law and it remained embedded in the field even as economics became the antitrust methodology. Economics merely transformed the fear from a concern about absolute size to one of relative size (market shares). While size should be an irrelevant consideration in antitrust analysis, it still mistakenly serves as a driving force behind the law. This Article studies how the fear of bigness-of absolute or relative size-has shaped and confused analytical perceptions of antitrust, established and sustained no-fault monopolization theories, and contributed to various doctrinal oddities. The American discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.
• Orbach, B., & Sokol, D. D. (2013). Symposium: 100 years of standard oil: Antitrust energy. Southern California Law Review, 85(3), 429-450.
• Orbach, B., & Rebling, G. (2012). The antitrust curse of bigness. S. Cal. Law Review, 85(3).
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  In 1882, Standard Oil's General Solicitor invented the corporate trusts that inspired the birth of the antitrust discipline. The public aversion to trusts in the United States gave the field its enduring and uniquely American name. As the discipline matured, distrust of business size took root in cases and doctrines. Justices Louis Brandeis and William Douglas wrote the narrative into early case law and it remained embedded in the field even as economics became the antitrust methodology. Economics merely transformed the fear from a concern about absolute size to one of relative size (market shares). While size should be an irrelevant consideration in antitrust analysis, it still mistakenly serves as a driving force behind the law. This Article studies how the fear of bigness-of absolute or relative size-has shaped and confused analytical perceptions of antitrust, established and sustained no-fault monopolization theories, and contributed to various doctrinal oddities. The American discipline might owe its birth to the fear of size, but this fear has been a burden and a curse on the development of sound antitrust policies.
• Orbach, B. Y. (2011). THE ANTITRUST CONSUMER WELFARE PARADOX. Journal of Competition Law and Economics, 7(1), 133-164. doi:10.1093/joclec/nhq019
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  “Consumer welfare” is the only articulated goal of antitrust law in the United States. It became the governing standard following the 1978 publication of Robert Bork's The Antitrust Paradox. The consumer welfare standard has been instrumental to the implementation and enforcement of antitrust laws. Courts believe they understand this standard, although they do not bother to analyze it. Scholars hold various views about the desirable interpretations of the standard and they selectively use random judicial statements to substantiate opposite views. This article introduces the antitrust consumer welfare paradox: it shows that, under all present interpretations of the term “consumer welfare,” there are several sets of circumstances in which the application of antitrust laws may hurt consumers and reduce total social welfare. This article shows that, when Bork used the term “consumer welfare,” he obscured basic concepts in economics. This article clarifies that the antitrust methodology permits only surplus analysis and does not accommodate welfare analysis. It explains the conceptual differences between the terms “surplus” and “welfare” and the relevant implications. This article further explains the differences between two other competing standards—“consumer surplus” and “total surplus”—that presently serve as proposed interpretations for the term “consumer welfare.” Each interpretation has some limitations and the necessary analytical progress calls first for conceptual clarity. This article argues that whatever good ends the “consumer welfare” phrase may have once served, antitrust law should now lay it to rest.
• Orbach, B. Y. (2011). The antitrust consumer welfare paradox. Journal of Competition Law and Economics, 7(1), 133-164.
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  Abstract: "Consumer welfare" is the only articulated goal of antitrust law in the United States. It became the governing standard following the 1978 publication of Robert Bork's The Antitrust Paradox. The consumer welfare standard has been instrumental to the implementation and enforcement of antitrust laws. Courts believe they understand this standard, although they do not bother to analyze it. Scholars hold various views about the desirable interpretations of the standard and they selectively use random judicial statements to substantiate opposite views. This article introduces the antitrust consumer welfare paradox: it shows that, under all present interpretations of the term "consumer welfare," there are several sets of circumstances in which the application of antitrust laws may hurt consumers and reduce total social welfare. This article shows that, when Bork used the term "consumer welfare," he obscured basic concepts in economics. This article clarifies that the antitrust methodology permits only surplus analysis and does not accommodate welfare analysis. It explains the conceptual differences between the terms "surplus" and "welfare" and the relevant implications. This article further explains the differences between two other competing standards-"consumer surplus" and "total surplus"-that presently serve as proposed interpretations for the term "consumer welfare." Each interpretation has some limitations and the necessary analytical progress calls first for conceptual clarity. This article argues that whatever good ends the "consumer welfare" phrase may have once served, antitrust law should now lay it to rest. © The Author (2010). Published by Oxford University Press. All rights reserved.
• Orbach, B. (2010). The Image Theory: RPM and the Allure of High Prices. Antitrust Bulletin, 55(2). doi:10.1177/0003603X1005500202
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  A century of debates over resale price maintenance (RPM) has generated hundreds of articles that develop a handful of theories. This article introduces a new theory—the “image theory,” which builds on one of the oldest—yet neglected—explanations that manufacturers offer for RPM: uniform retail prices for a branded good maintains the product's exclusive image, thereby luring consumers and increasing revenues.
• Orbach, B. (2009). Prizefighting and the Birth of Movie Censorship. Yale journal of law and the humanities, 21(2).
• Orbach, B. Y., & Einav, L. (2007). Uniform prices for differentiated goods: The case of the movie-theater industry. International Review of Law and Economics, 27(2), 129-153.
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  Abstract: Since the early 1970s, movie theaters in the United States have employed a pricing model of uniform prices for differentiated goods. At any given theater, one price is charged for all movies, seven days a week, 365 days a year. This pricing model is puzzling in light of the potential profitability of prices that vary with demand characteristics. Another unique aspect of the motion-picture industry is the legal regime that imposes certain constraints on vertical arrangements between distributors and retailers (exhibitors) and attempts to facilitate competitive bidding for films. We explore the justifications for uniform pricing in the industry and show their limitations. We conclude that exhibitors could increase profits by engaging in variable pricing and that they could do so more easily if the legal constraints on vertical arrangements are lifted. © 2007.
• Orbach, B. (2006). Unwelcome Benefits: Why Welfare Beneficiaries Reject Government Aid. Law and Inequality, 24(1).
• Orbach, B. (2004). Antitrust and Pricing in the Motion Picture Industry. Yale Journal on Regulation, 21(2).
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  Few industries have undergone the degree of antitrust litigation and scrutiny experienced by the motion-picture industry. Nevertheless, the pricing structure of movie tickets has never a product of free market forces. Since the early 1970s, ticket pricing is particularly puzzling since at any given theater, admission fees are uniform across movies and over time. This Article studies the history of the industry’s pricing systems in their legal, economic, and technological contexts. It is shown that, despite the extensive antitrust scrutiny and litigation, the industry’s pricing systems have always been shaped or affected by forces with considerable market power. The author studies the present pricing regime and explores the economic justifications for uniform pricing and concludes that none of the justifications relies on sound grounds. It is argued that, in addition to conservatism, vertical restraints, which are illegal under present antitrust laws, have at least some impact on the persistence of the present pricing regime. The author further argues that, given the idiosyncratic characteristics of the industry, a coordinated transition to a non-uniform pricing could be desirable.
• Orbach, B. (2004). The Durapolist Puzzle: Monopoly Power in Durable-Goods Markets. Yale Journal on Regulation, 21(1).

Proceedings Publications

• Orbach, B., & Daniel Sokol, D. (2012). Symposium: 100 years of standard oil: Antitrust energy. In Standard Oil.

Creative Productions

• Orbach, B. Y. (2016. Law School Makes Antitrust Claim Over LSAT Policy. FTC: WATCH, Issue 896.
• Orbach, B. Y. (2016. What Do New Law Grads Know About Antitrust?. LAW360.