Showing archive for: “Administrative Law”
Chevron and Administrative Antitrust, Redux
[Wrapping up the first week of our FTC UMC Rulemaking symposium is a post from Truth on the Market’s own Justin (Gus) Hurwitz, director of law & economics programs at the International Center for Law & Economics and an assistant professor of law and co-director of the Space, Cyber, and Telecom Law program at the ... Chevron and Administrative Antitrust, Redux
The Major Questions Doctrine Slams the Door Shut on UMC Rulemaking
The Federal Trade Commission’s (FTC) current leadership appears likely to issue substantive rules concerning “unfair methods of competition” (UMC) at some point. FTC Chair Lina Khan, in an article with former FTC Commissioner Rohit Chopra, argued that the commission has the authority to issue UMC rules pursuant to the Federal Trade Commission Act based on ... The Major Questions Doctrine Slams the Door Shut on UMC Rulemaking
Can the FTC Use Rulemaking to Change Antitrust Law?
FTC Rulemaking Power In 2021, President Joe Biden appointed a prolific young scholar, Lina Khan, to chair the Federal Trade Commission (FTC). Khan strongly dislikes almost every element of antitrust law. She has stated her intention to use notice and comment rulemaking to change antitrust law in many ways. She was unable to begin this process ... Can the FTC Use Rulemaking to Change Antitrust Law?
National Petroleum Refiners v FTC: A Tale of Two Opinions
In 1972, a case came before Aubrey E. Robinson, Jr., a judge on the U.S. District Court for the District of Columbia, involving the scope of the Federal Trade Commission’s (FTC) regulatory authority. Section 5(a)(1) of the Federal Trade Commission Act outlaws “unfair methods of competition.” Section 6(g) says that the FTC may “make rules ... National Petroleum Refiners v FTC: A Tale of Two Opinions
UMC Rulemaking After Magnuson-Moss: A Textualist Approach
Introduction The Federal Trade Commission’s (FTC) ability to conduct substantive rulemaking under both its “unfair methods of competition” (UMC) and “unfair and deceptive practices” (UDAP) mandates was upheld by the U.S. Court of Appeals for the D.C. Circuit in 1973’s National Petroleum Refiners Association v. FTC. Nonetheless, the FTC has seldom exercised this authority with ... UMC Rulemaking After Magnuson-Moss: A Textualist Approach
A Change in Direction for the Federal Trade Commission?
While antitrust and regulation are supposed to be different sides of the same coin, there has always been a healthy debate over which enforcement paradigm is the most efficient. For those who have long suffered under the zealous hand of ex ante regulation, they would gladly prefer to be overseen by the more dispassionate and ... A Change in Direction for the Federal Trade Commission?
Welcome to the TOTM Symposium on FTC UMC Rulemaking
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 ... Welcome to the TOTM Symposium on FTC UMC Rulemaking
The DMA and Antitrust: A Liaison Dangereuse
As the European Union’s Digital Markets Act (DMA) has entered the final stage of its approval process, one matter the inter-institutional negotiations appears likely to leave unresolved is how the DMA’s the relationship with competition law affects the very rationale and legal basis for the intervention. The DMA is explicitly grounded on the questionable assumption ... The DMA and Antitrust: A Liaison Dangereuse
The BIF Offers a Good First Step for Broadband, but the Devil Will Be in the Details
Capping months of inter-chamber legislative wrangling, President Joe Biden on Nov. 15 signed the $1 trillion Infrastructure Investment and Jobs Act (also known as the bipartisan infrastructure framework, or BIF), which sets aside $65 billion of federal funding for broadband projects. While there is much to praise about the package’s focus on broadband deployment and ... The BIF Offers a Good First Step for Broadband, but the Devil Will Be in the Details
Broad-Based FTC Data-Privacy and Security Rulemaking Would Flunk a Cost-Benefit Test
A debate has broken out among the four sitting members of the Federal Trade Commission (FTC) in connection with the recently submitted FTC Report to Congress on Privacy and Security. Chair Lina Khan argues that the commission “must explore using its rulemaking tools to codify baseline protections,” while Commissioner Rebecca Kelly Slaughter has urged the ... Broad-Based FTC Data-Privacy and Security Rulemaking Would Flunk a Cost-Benefit Test
A First Glance at the Biden Executive Order on Competition: The Good and the Bad (Including Much that Looks Ugly)
The Biden Administration’s July 9 Executive Order on Promoting Competition in the American Economy is very much a mixed bag—some positive aspects, but many negative ones. It will have some positive effects on economic welfare, to the extent it succeeds in lifting artificial barriers to competition that harm consumers and workers—such as allowing direct sales ... A First Glance at the Biden Executive Order on Competition: The Good and the Bad (Including Much that Looks Ugly)
FTC Competition Rulemaking Flunks a Cost-Benefit Test
There is little doubt that Federal Trade Commission (FTC) unfair methods of competition rulemaking proceedings are in the offing. Newly named FTC Chair Lina Khan and Commissioner Rohit Chopra both have extolled the benefits of competition rulemaking in a major law review article. What’s more, in May, Commissioner Rebecca Slaughter (during her stint as acting ... FTC Competition Rulemaking Flunks a Cost-Benefit Test
