There is widespread interest in the potential tools that the Biden administration’s Federal Trade Commission (FTC) may use to address a range of competition-related and competition-adjacent concerns. A focal point for this interest is the potential that the FTC may use its broad authority to regulate unfair methods of competition (UMC) under Section 5 of the FTC Act to make rules that address a wide range of conduct. This “potential” is expected to become a “likelihood” with confirmation of Alvaro Bedoya, a third Democratic commissioner, expected to occur any day.
Beginning April 25, 2022, Truth on the Market will host a symposium that brings together academics, practitioners, and other commentators to discuss issues relating to potential UMC-related rulemaking. Contributions to this symposium will cover a range of topics, including:
- Constitutional and administrative-law limits on UMC rulemaking: does such rulemaking potentially present “major question” or delegation issues, or other issues under the Administrative Procedure Act (APA)? If so, what is the scope of permissible rulemaking?
- Substantive issues in UMC rulemaking: costs and benefits to be considered in developing rules, prudential concerns, and similar concerns.
- Using UMC to address competition-adjacent issues: consideration of how or whether the FTC can use its UMC authority to address firm conduct that is governed by other statutory or regulatory regimes. For instance, firms using copyright law and the Digital Millennium Copyright Act (DMCA) to limit competitors’ ability to alter or repair products, or labor or entry issues that might be governed by licensure or similar laws.
Timing and Structure of the Symposium
Starting April 26, one or two contributions to this symposium will be posted each morning. During the first two weeks of the symposium, we will generally try to group posts on similar topics together. When multiple contributions are posted on the same day, they will generally be implicitly or explicitly in dialogue with each other. The first week’s contributions will generally focus on constitutional and administrative law issues relating to UMC rulemaking, while the second week’s contributions will focus on more specific substantive topics.
Readers are encouraged to engage with these posts through comments. In addition, academics, practitioners, and other antitrust and regulatory commentators are invited to submit additional contributions for inclusion in this symposium. Such contributions may include responses to posts published by others or newly developed ideas. Interested authors should submit pieces for consideration to Gus Hurwitz and Keith Fierro Benson.
This symposium will run through at least Friday, May 6. We do not, however, anticipate, ending or closing it at that time. To the contrary, it is very likely that topics relating to FTC UMC rulemaking will continue to be timely and of interest to our community—we anticipate keeping the symposium running for the foreseeable future, and welcome submissions on an ongoing basis. Readers interested in these topics are encouraged to check in regularly for new posts, including by following this page, the FTC UMC Rulemaking tag, or by subscribing to Truth on the Market for notifications of new posts.
As in the past (see examples of previous TOTM blog symposia here), we’ve lined up an outstanding and diverse group of scholars to discuss these issues, including:
- Alden Abbott, Mercatus Center
- Jonathan M. Barnett, University of Southern California Gould School of Law
- Corbin K. Barthold, TechFreedom
- Steven Cernak, Bona Law
- Kacyn H. Fujii, 2022 J.D. Candidate, University of Michigan Law School
- Justin (Gus) Hurwitz, University of Nebraska-Lincoln College of Law
- William C. MacLeod, Kelley Drye & Warren LLP
- Andrew K. Magloughlin, Free State Foundation
- Randolph J. May, Free State Foundation
- Aaron Nielson, Brigham Young University Law
- Maureen K. Ohlhausen, Baker Botts
- Richard J. Pierce Jr., George Washington University School of Law
- Commissioner Noah J. Phillips, Federal Trade Commission
- James F. Rill, Baker Botts
- Ben Rossen, Baker Botts
- Leah Samuel, 2022 J.D. Candidate, Yale Law School
- Joshua D. Sarnoff, DePaul College of Law
- Lawrence J. Spiwak, Phoenix Center for Advanced Legal & Economic Public Policy Studies
- Ramsi Woodcock, University of Kentucky Rosenberg College of Law
Series Posts (in order of posting)
- Introductory Post (Hurwitz)
- A Change in Direction for the Federal Trade Commission? (Spiwak)
- UMC Rulemaking After Magnuson-Moss: A Textualist Approach (Samuel)
- National Petroleum Refiners v. FTC: A Tale of Two Opinions (Barthold)
- Can the FTC Use Rulemaking to Change Antitrust Law? (Pierce)
- The Major Questions Doctrine Slams the Door Shut on UMC Rulemaking (May and Magloughlin)
- Chevron and Administrative Antitrust, Redux (Hurwitz)
- The FTC Abandons the Free Market (Barnett)
- FTC Rulemaking and Unintended Consequences (Nielson)
- NEW VOICES: FTC Rulemaking for Noncompetes (Fujii)
- Making Rules vs. Ruling (Woodcock)
- FTC Rulemaking Under UMC Could Mean Return of the National Nanny (Cernak)
- Rules Without Reason (Phillips)
- Regulating Competition at the FTC (MacLeod)
- How the FTC Could, but Won’t, Use Its Rulemaking Authority to Allow Aftermarket Parts (Sarnoff)
- Wrapping up Round One of the FTC UMC Symposium (Hurwitz)
- Why FTC Competition Rulemaking Likely Will Fail (Abbott)
- Pushing the Limits? A Primer on FTC Competition Rulemaking (Ohlhausen and Rill)
- Dead End Road: National Petroleum Refiners Association and FTC ‘Unfair Methods of Competition’ Rulemaking (Ohlhausen and Rossen)
- Potential Rulemaking on Commercial Surveillance and Data Security: The FTC Must Use Cost-Benefit Analysis (Abbott)
- Taking Cost-Benefit Analysis Seriously in Consumer-Data Regulation (Barnett)