Comments In Re: Rescission of 2015 FTC Statement on Unfair Methods of Competition
Abandoning the 2015 statement’s framework would remove important guardrails that established predictability and guidance in enforcement actions. The lack of predictability resulting from the FTC’s re-expanded discretion in invoking broad Section 5 authority on a case-by-case basis would create uncertainty for businesses of all sizes and across all industries. The Commission’s misadventure into UMC expansionism would generate unwarranted confusion, and eventually courts would have to grapple with questions of interpreting the outer boundaries of Section 5 authority that were previously cabined by the 2015 statement.
Comments to the Federal Trade Commission Concerning the July 1, 2021 Open Meeting Agenda
Ultimately, we worry that both reports support proposals that place government bureaucrats at the heart of decisions regarding the way products are designed, how firms compete, and other questions that have been traditionally left to consumers. And through the adoption of these proposals, conservatives risk playing into the regulation-happy hands of progressives.
Breaking Down the House Judiciary Antitrust Bills and Amendments
The majority has scheduled a full-committee mark-up less than two weeks after unveiling the bills and less than 48 hours after disclosing new versions to be offered as substitute amendments. The majority is selling out conservatives in order to ram their whole package through. These are serious changes to a broad area of law that deserve serious consideration. It is clear that House Democrats never intended to allow that to be the case.
In fact, they have even admitted to such strategies. For example, Chairman Cicilline told the New York Times that in the markup, he’ll take up measures with the most agreement first and worse legislation later. At least the quiet parts are sometimes said out loud.
Contrast this with the fact that this was preceded by a more than 16-month investigation, about a dozen hearings, a 450+ page report, and the fact that there have been nine months following the report’s publication. Now that the details to proposed solutions have been drafted without meaningful Republican collaboration, the committee is moving about a month after a partisan report was reported out of committee without a single GOP vote.
The Common Purposes of Intellectual Property and Antitrust
Although the compatibility of intellectual property (IP) and antitrust has been widely recognized by Congress and the Supreme Court, recent discussions of monopolies in digital markets often presents IP rights and antitrust laws as conceptually incompatible concepts. The nexus between property rights and competition is complex, but ultimately IP and antitrust share common goals of increasing market output, value, and competition. Guided by the consumer welfare standard, modern antitrust law rejects the notion that mere possession of a patent or copyright constitutes possession of anticompetitive market power and makes clear that applying for or enforcing these rights does not establish exclusionary conduct. And while patents and other forms of IP are frequently described as incentives to innovate, their disruptive, anti-monopoly effects are often overlooked. Our panel of experts discuss the nexus between patents, copyright, and competition as well as recent developments at the interface of IP and antitrust law.
Antitrust, Big Tech, and Why Conservatives Should Tread Carefully
I had the chance to sit down and speak with Ashley Baker, an expert in antitrust. We discussed antitrust and big tech, and how conservatives should fight back against tech.
Antitrust and Big Tech: Does New Technology Call for New Rules?
Recently, Senator Amy Klobuchar (D-MN) introduced a bill that would overhaul the past forty-five years of antitrust law by rewriting legal standards, changing guidelines for mergers, and expanding the government’s civil penalty authority. Additionally, the House Judiciary Committee conducted its own investigation and released a report on competition in the digital market.
Is Big Tech Too Big? A Conversation on Tech, Antitrust, and Whether Its Time to Break Up the Giants
The Cornell Federalist Society and the Adam Smith Society host Ashley Baker, Director of Public Policy at the Committee for Justice, and Joseph Malchow, founder of Publir and venture investor. Ashley and Joe discuss legislative proposals and weigh in on current debates over the proper scope and purpose of federal antitrust law.
Explainer: Senator Klobuchar's Antitrust Bill
How would the bill adjust the definition of "exclusionary conduct"? What would it mean for the government's ability to seek civil fines for antitrust violations? And how does the bill fit into the larger conversation about antitrust law in Washington?
Statement from Conservatives on HJC Antitrust Proposals
Ultimately, we worry that both reports support proposals that place government bureaucrats at the heart of decisions regarding the way products are designed, how firms compete, and other questions that have been traditionally left to consumers. And through the adoption of these proposals, conservatives risk playing into the regulation-happy hands of progressives.
The Conservative Case Against Weaponizing Antitrust Law
Today, the consumer welfare standard remains one of the greatest success stories of the conservative legal movement. However, recent sentiments within both parties have attracted proposals that would mark a return to highly-interventionist, pre-1970s jurisprudence in which the “sole consistency,” as Justice Potter Stewart famously said, “is that the government always wins.” Our panel of experts discuss these proposals, their implications, and the best path forward for conservatives.
Event Video: The Antitrust Cases Against Facebook: Examining the Lawsuits and Implications
Our panel of experts discuss the antitrust lawsuits against Facebook, the merger review process and FTC enforcement, and assess the implications for consumers, companies, and the law.
Virtual Panel Discussion: New Technologies, Same Principles: The Conservative Case Against Weaponizing Antitrust Law
During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. “In law school, I never understood [antitrust law],” Scalia explained, “I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.” This much-needed coherency in antitrust law was brought about by the adoption of the consumer welfare standard. The intersection of economic analysis and the law provided a neutral underlying principle that allowed conservatives to reign in a broad, unprincipled area of the law that was once used as a political and socioeconomic tool.
Today, this remains one of the greatest success stories of the conservative legal movement. However, recent sentiments within both parties have attracted proposals that would mark a return to highly-interventionist, pre-1970s jurisprudence in which the “sole consistency,” as Justice Potter Stewart famously said, “is that the government always wins.” Our panel of experts will discuss these proposals, their implications, and the best path forward for conservatives.