Now showing 1 - 7 of 7
  • Publication
    Governance by Mutual Benchmarking in Postal Markets: How State Owned Enterprises May Induce Private Competitors to Observe Policy Goals
    (University of Dayton Press, 2007-03-01)
    Congress recently has passed the Postal Accountability and Enhancement Act, which leaves most elements of the current postal regulatory framework (postal monopoly, state owned enterprise) unaltered. Similar regulatory frameworks have been established in the U.S. and the European Community. Governments justify intervention in postal markets with merit good considerations. They argue that important policy goals like universal service will not be achieved by competition. However, an economic analysis shows that the current (and new) regulatory regime does not achieve these policy goals in an efficient way. In addi-tion, many universal service elements, in particular the uniform pricing scheme, rest on dubious grounds. There is need for a market model in postal service, which leaves room for efficiency gains while keeping focus on policy goals. In my article, I describe a new concept of public-private competition, according to which governments use state owned enterprises to guard policy goals like universal service in postal markets. This allows relieving private competitors from regulatory burdens. Summarizing the concept, the state owned enterprise will set a minimum service standard in the market, which serves as performance benchmark for private competitors. The benchmark pressures private actors to observe policy goals in postal markets, if they want to keep up with the service standard available from the state owned enterprise (threat of replacement). In the same way, state owned en-terprises have to keep up with the performance benchmark of private providers, forcing them to improve efficiency, and to resist political meddling. Changes in the current subsidy scheme will make it possible to extend public-private competition from urban to rural areas, where markets are too small to sustain more than one provider; such extension will further improve the mutual benchmarking process. In contrast to other concepts of public-private competition, the benchmarking process described in this paper does not make use of coercive regulation and leaves the competitive process largely intact.
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  • Publication
    Mere Refinement of the State Action Doctrine will not Work
    (DePaul University College of Law, 2006-12-01)
    The State Action Doctrine is far from settled, and heavy battled in the Supreme Court. In Ticor, Justice Scalia expressed skepticism if an "exemption for state-programmed private collusion" is justified at all. Other Justices have been more favorable towards state and local regulation of commerce. Beside this more philosophical clash about the proper scope of regulation, it is generally acknowledged that the doctrine bears inherent flaws and provides no guidance. Justice O'Connor has already pointed out that it is unfair to punish regulated parties with treble damages for their compliance with anticompetitive state regulation. The State Action Task Force of the FTC acknowledges the inherent flaws of the State Action Doctrine; so do most scholars. However, all proposals made so far aim to clarify and refine the State Action Doctrine. The current proposals have their merits, but they will only mitigate the problems associated with the State Action Doctrine. The present standard requires a "clearly articulated state policy" and "active supervision" for immunity; these are purely procedural requirements. This essay brings forward a proposal to include institutional and substantive changes to the State Action Doctrine. From an institutional perspective, the courts should reaffirm the FTC's mandate to preserve public policy; the FTC is best suited to defend the federal interest in unfettered competition. From a substantive point of view, the courts have to reengage in a moderate review of the reasonabless of state regulation. This paper does not ask to revive the Lochner era; however, the competitive process needs at least minimal protection against arbitrary state regulation. The essay describes the State Action Doctrine, as it is currently applied by the Supreme Court and Circuit courts [1(a)]. It continues to identify the most obvious problems associated with the Doctrine [1(b)]. Even if these problems could be resolved, the application of the State Action Doctrine renders near-arbitrary results in regulated markets [2]. Reasonable regulation, e.g., may not immunize regulated parties because state involvement is insufficient; on the other hand, price regulation with devastating effects on competition and efficiency may be upheld. Mere refinement of the Doctrine will not work [3(a)]; only combined procedural, substantive, and institutional changes to the Doctrine may render satisfactory, foreseeable results in court for regulators, regulated parties as well as prospective competitors [3(b)-(d)].
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  • Publication
    Die Konzession als überholte Rechtsfigur?
    (Schulthess, 2011) ;
    Bühler, Simon
    ;
    Häner, Isabelle
    ;
    Waldmann, Bernhard