The Archives

The collection of all scholarly commentary on law, economics, and more

Showing archive for:  “Antitrust”

When Progress Is Regressive: The Ordo-Brandeisian Devolution

It is no coincidence that ordoliberalism—the European (originally German) alternative to classical liberalism that emphasized the importance of the “social market” economy—and the New Brandeis or “neo-Brandeisian” movement, which harkens back to the Progressive Era thought of the late U.S. Supreme Court Justice Louis Brandeis, both are enjoying comebacks simultaneously. The effects of these ideological ... When Progress Is Regressive: The Ordo-Brandeisian Devolution

Market Power as a Limiting Principle in Merger Enforcement

One of the most important changes in the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) draft merger guidelines is the abandonment of market power as the central element of merger enforcement. The “unifying theme” of the 2010 horizontal merger guidelines was that “mergers should not be permitted to create, enhance, or entrench market ... Market Power as a Limiting Principle in Merger Enforcement

Shining the Light of Economics on the Google Case

The U.S. Justice Department has presented its evidence in the antitrust case alleging that Google unlawfully maintained a monopoly over “general search services” by “lock[ing] up distribution channels” through “exclusionary agreements” with makers and marketers of devices. Google’s agreements with Apple, for example, have made its search engine the default in Apple’s Safari browser. The ... Shining the Light of Economics on the Google Case

The View From Brazil: A TOTM Q&A with Mariana Tavares de Araujo

How did you come to be interested in the regulation of digital markets? Prior to joining Levy & Salomão Advogados, I worked with the Brazilian government for nine years, four of which I served as head of the government agency in charge of antitrust enforcement and consumer protection policy. During this time, I was very ... The View From Brazil: A TOTM Q&A with Mariana Tavares de Araujo

Is Amazon’s Scale a Harm?

Under the leadership of its professional anti-Amazoner Chair Lina Khan, the Federal Trade Commission (FTC) has finally filed its antitrust complaint against Amazon. No, not the complaint about how it’s unfair to take six clicks to cancel your Prime membership. This is the big one. It mostly revolves around sellers needing to use Amazon’s fulfillment ... Is Amazon’s Scale a Harm?

A Response to Gus on Our New FTC Overlords

Gus Hurwitz’s closing post in this symposium was a very cogent and persuasive (albeit overly optimistic) take on the current state of antitrust enforcement. I hesitate to quibble with my intellectual superior, but on some points I have a slightly different take. Gus says that law should be made through legislation or litigation, and obviously ... A Response to Gus on Our New FTC Overlords

I, For One, Welcome Our New FTC Overlords

In this post—the last planned post for this symposium on The FTC’s New Normal (though we will continue to accept unsolicited submissions of responses)—I will offer some summary of the ideas that have been shared here over the past month, before turning to some of my own thoughts. To keep your attention rapt, I will ... I, For One, Welcome Our New FTC Overlords

The Changing Role of Structural Presumption at the Federal Trade Commission

The draft merger guidelines that were released July 19 by the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) indicate a shift by the agencies toward an overreliance on structural market factors to trigger merger scrutiny.  For example, Draft Guideline 1—titled “Mergers Should Not Significantly Increase Concentration in Highly Concentrated Markets”—would lower the bar ... The Changing Role of Structural Presumption at the Federal Trade Commission

Draft Merger Guidelines Do Not ‘Return Antitrust to a Sound Economic and Legal Foundation’ – A Response to Professor Kwoka

In a recently published article in ProMarket, John Kwoka of Northeastern University (who “worked on the draft Merger Guidelines while serving at the Federal Trade Commission as chief economist to the chair in 2022”) asserts that the U.S. Justice Department (DOJ) and Federal Trade Commission’s (FTC) draft merger guidelines aim to improve “deficient merger enforcement” ... Draft Merger Guidelines Do Not ‘Return Antitrust to a Sound Economic and Legal Foundation’ – A Response to Professor Kwoka

Abby Normal, a Flood of Ill-Considered Withdrawals, and the FTC’s Theatre of Listening

What will become of our culture if we forget the classics? Two bits seem salient here, would that either were my own. Dr. Frankenstein: Now, that brain you gave me. Was it Hans Delbruck’s? Igor: … [pause] … No. Dr. Frankenstein: Ah! Very good. Would you mind telling me whose brain I did put in? ... Abby Normal, a Flood of Ill-Considered Withdrawals, and the FTC’s Theatre of Listening

FTC’s Amazon Complaint: Perhaps the Greatest Affront to Consumer and Producer Welfare in Antitrust History

“Seldom in the history of U.S. antitrust law has one case had the potential to do so much good [HARM] for so many people.” – Federal Trade Commission (FTC) Bureau of Competition Deputy Director John Newman, quoted in a Sept. 26 press release announcing the FTC’s lawsuit against Amazon (correction IN ALL CAPS is mine) ... FTC’s Amazon Complaint: Perhaps the Greatest Affront to Consumer and Producer Welfare in Antitrust History

An FTC Complaint Against Amazon Gets Personal

There is much in the Federal Trade Commission’s (FTC) record over the past two years that could be categorized as abnormal. There is, for instance, nothing “normal” about using the threat of excessive force to cower businesses into submission. Introducing sky high costs for the filing of mergers isn’t normal, as it will scare away ... An FTC Complaint Against Amazon Gets Personal