Inter-Agency Teleseminar Showdown

You may recall we’ve been blogging quite a bit about the FTC and DOJ scuffle over Section 2 (See here and here). On Thursday, December 11th, the ABA Antitrust Division is sponsoring a Teleseminar that will feature my former FTC colleague Ken Glazer (Deputy Director, Bureau of Competition, Federal Trade Commission), Bill Kolasky (WilmerHale, and rumored candidate for AG job), and James J. O’Connell, Jr. (Deputy Assistant Attorney General, Antitrust Division, Department of Justice).  Jennifer Driscoll (Mayer Brown) will be moderating.

Should be interesting. The link promises that “Commentators will offer their opinions on the substance of the report and what we can expect in terms of enforcement policy going forward.”

As TOTM readers know, I’ve been fairly critical of the FTC stance on the Section 2 Report, arguing that it contains hints of abandoning the economic roots of antitrust, advocating a smaller role for economics and economists in antitrust enforcement. I’ve also been hesitant to conclude that the divergence between agencies is a function of “just different priors” concerning what the state of evidence is on single firm conduct. With respect to the “different priors” explanation, I wrote:

I’m willing to concede that different perceptions of the likelihood and magnitude of errors are part of the story here. Unfortunately, I think its a small part. Were it a larger part of the discourse, I think a very rational discussion could be had about what sorts of rules and enforcement activities are warranted by the available evidence and which are not. Sadly, I don’t see too much of that type of discussion. For the record, my opinions here track closely to my view of the convergence issue between the United States and Europe: too much deference to different theoretical priors without respectfully hashing out how those priors hold up to available evidence.

Maybe the Teleseminar will provide some opportunity for exactly that type of respectful hashing.