Time to Apply Office of Management and Budget Regulatory Review to Independent Agencies
Last June, in Michigan v. EPA, the Supreme Court commendably recognized cost-benefit analysis as critical to any reasoned evaluation of regulatory proposals by federal agencies. (For more on the merits and limitations of this holding, see my June 29 blog.) The White House (Office of Management and Budget) office that evaluates proposed federal regulations, the ... Time to Apply Office of Management and Budget Regulatory Review to Independent Agencies
Amateurism and Antitrust: The 9th Circuit Gets It Right
On September 30, in O’Bannon v. NCAA, the U.S. Court of Appeals for the 9th Circuit held that the National Collegiate Athletic Association’s (NCAA) rules that prohibited student athletes from being paid for the use of their names, images, and likenesses are subject to the antitrust laws and constitute an unlawful restraint of trade, under ... Amateurism and Antitrust: The 9th Circuit Gets It Right
The Case Against Antitrust Challenges to Standard Essential Patent “Abuses” Intensifies – Will DOJ and the FTC Finally Get the Message?
Applying antitrust law to combat “hold-up” attempts (involving demands for “anticompetitively excessive” royalties) or injunctive actions brought by standard essential patent (SEP) owners is inherently problematic, as explained by multiple scholars (see here and here, for example). Disputes regarding compensation to SEP holders are better handled in patent infringement and breach of contract lawsuits, and ... The Case Against Antitrust Challenges to Standard Essential Patent “Abuses” Intensifies – Will DOJ and the FTC Finally Get the Message?
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
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
Josh Wright, Commissioner-Provocateur
Much ink will be spilled at this site lauding Commissioner Joshua (Josh) Wright’s many contributions to the Federal Trade Commission (FTC), and justly so. I will focus narrowly on Josh Wright as a law and economics “provocateur,” who used his writings and speeches to “stir the pot” and subject the FTC’s actions to a law ... Josh Wright, Commissioner-Provocateur
The D.C. Circuit Subjects USDA Pork Barrel Politics to Scrutiny – Will the Lower Court Bring Home the “Economic Liberties” Bacon?
Recently, I discussed at this site the Supreme Court’s imposition of takings liability on the U.S. Department of Agriculture (“USDA”), because USDA fined a small raisin grower for refusing to cooperate with the California Raisins Marketing Order – which, stripped of the fancy verbiage, is little more than a government-supervised output limitation cartel. The California ... The D.C. Circuit Subjects USDA Pork Barrel Politics to Scrutiny – Will the Lower Court Bring Home the “Economic Liberties” Bacon?
The Federal Circuit Misapplies Chevron Deference (and Risks a Future “Supreme Scolding”) in Suprema Inc. v. ITC
On August 10, in Suprema, Inc. v. ITC, the en banc Federal Circuit granted Chevron deference to a U.S. International Trade Commission (“ITC”) statutory interpretation in holding that goods that do not directly infringe a U.S. patent at the time they are imported nevertheless may be excluded from entry by the ITC if they are ... The Federal Circuit Misapplies Chevron Deference (and Risks a Future “Supreme Scolding”) in Suprema Inc. v. ITC
Let’s Inject Antitrust Principles into Antidumping Law
In a Heritage Foundation paper released today, I argue that U.S. antidumping law should be reformed to incorporate principles drawn from the antitrust analysis of predatory pricing. A brief summary of my paper follows. Such a change would transform antidumping law from a special interest cronyist tool that harms U.S. consumers into a sensible procompetitive ... Let’s Inject Antitrust Principles into Antidumping Law
Greek Crisis Underscores the Importance of Regulatory Reform – in Greece and Around the World
The Heritage Foundation continues to do path-breaking work on the burden overregulation imposes on the American economy, and to promote comprehensive reform measures to reduce regulatory costs. Overregulation, unfortunately, is a global problem, and one that is related to the problem of anticompetitive market distortions (ACMDs) – government-supported cronyist restrictions that weaken the competitive process, ... Greek Crisis Underscores the Importance of Regulatory Reform – in Greece and Around the World
