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The FCC distorted market realities to scuttle the Comcast-TWC merger

Last week, FCC General Counsel Jonathan Sallet pulled back the curtain on the FCC staff’s analysis behind its decision to block Comcast’s acquisition of Time Warner Cable. As the FCC staff sets out on its reported Rainbow Tour to reassure regulated companies that it’s not “hostile to the industries it regulates,” Sallet’s remarks suggest it will ... The FCC distorted market realities to scuttle the Comcast-TWC merger

Some Preliminary Thoughts on Curbing U.S. Regulatory Burdens

The costs imposed by government regulation are huge and growing.  The Heritage Foundation produces detailed annual reports cataloguing the rising burden of the American regulatory state, and the Competitive Enterprise Institute recently estimated that regulations impose a $1.88 trillion annual tax on the U.S. economy.  Yet the need to rein in the regulatory behemoth has ... Some Preliminary Thoughts on Curbing U.S. Regulatory Burdens

A Takedown of Common Sense: The 9th Circuit Overturns the Supreme Court in a Transparent Effort to Gut the DMCA

The Ninth Circuit made waves recently with its decision in Lenz v. Universal Music Corp., in which it decided that a plaintiff in a copyright infringement case must first take potential fair use considerations into account before filing a takedown notice under the DMCA. Lenz, represented by the EFF, claimed that Universal had not formed ... A Takedown of Common Sense: The 9th Circuit Overturns the Supreme Court in a Transparent Effort to Gut the DMCA

U.S. Antitrust Enforcement and Error Costs: The Supreme Court and the Obama Administration

My article with Thom Lambert arguing that the Supreme Court – but not the Obama Administration – has substantially adopted an error cost approach to antitrust enforcement, appears in the newly released September 2015 issue of the Journal of Competition Law and Economics.  To whet your appetite, I am providing the abstract: In his seminal ... U.S. Antitrust Enforcement and Error Costs: The Supreme Court and the Obama Administration

Competition Among Competition Regimes: Recent Developments in Europe and Welfare Implications

A basic premise of antitrust law (also called competition law) is that competition among private entities enhances economic welfare by reducing costs, increasing efficiency, and spurring innovation.  Government competition agencies around the world also compete, by devising different substantive and procedural rules to constrain private conduct in the name of promoting competition.  The welfare implications ... Competition Among Competition Regimes: Recent Developments in Europe and Welfare Implications

Wyndham Decision Highlights FTC Role in Cybersecurity: Legal and Policy Considerations

On August 24, the Third Circuit issued its much anticipated decision in FTC v. Wyndham Worldwide Corp., holding that the U.S. Federal Trade Commission (FTC) has authority to challenge cybersecurity practices under its statutory “unfairness” authority.  This case brings into focus both legal questions regarding the scope of the FTC’s cybersecurity authority and policy questions ... Wyndham Decision Highlights FTC Role in Cybersecurity: Legal and Policy Considerations

Suprema v. ITC: The Case for Chevron Deference

Recently, the en banc Federal Circuit decided in Suprema, Inc. v. ITC that the International Trade Commission could properly prevent the importation of articles that infringe under an indirect liability theory. The core of the dispute in Suprema was whether § 337 of the Tariff Act’s prohibition against “importing articles that . . . infringe ... Suprema v. ITC: The Case for Chevron Deference

The essence of Josh Wrightโ€™s FTC tenure was to ensure that benefits outweigh costs; the rest is commentary

As the organizer of this retrospective on Josh Wright’s tenure as FTC Commissioner, I have the (self-conferred) honor of closing out the symposium. When Josh was confirmed I wrote that: The FTC will benefit enormously from Josh’s expertise and his error cost approach to antitrust and consumer protection law will be a tremendous asset to ... The essence of Josh Wrightโ€™s FTC tenure was to ensure that benefits outweigh costs; the rest is commentary

Imagine

Imagine a world where competition and consumer protection authorities base their final decisions on scientific evidence of potential harm. Imagine a world where well-intentioned policymakers do not use “possibility theorems” to rationalize decisions that are, in reality, based on idiosyncratic biases or beliefs. Imagine a world where “harm” is measured using a scientific yardstick that ... Imagine

Josh Wrightโ€™s Unfinished Legacy: Reforming FTC Consumer Protection Enforcement

Josh Wright will doubtless be remembered for transforming how FTC polices competition. Between finally defining Unfair Methods of Competition (UMC), and his twelve dissents and multiple speeches about competition matters, he re-grounded competition policy in the error-cost framework: weighing not only costs against benefits, but also the likelihood of getting it wrong against the likelihood ... Josh Wrightโ€™s Unfinished Legacy: Reforming FTC Consumer Protection Enforcement

Tim Muris on Joshua Wright

As the premier Antitrust scholar of his generation, Josh Wright’s appointment to the Federal Trade Commission promised to be noteworthy. He did not disappoint, having one of the most important and memorable tenures of any non-Chair over the 40 years that I have followed the agency closely. In numerous speeches, dissents, and a variety of other statements ... Tim Muris on Joshua Wright

Josh Wright and the Limits of Antitrust

Alden Abbott and I recently co-authored an article, forthcoming in the Journal of Competition Law and Economics, in which we examined the degree to which the Supreme Court and the federal enforcement agencies have recognized the inherent limits of antitrust law. We concluded that the Roberts Court has admirably acknowledged those limits and has for ... Josh Wright and the Limits of Antitrust