Showing archive for: “Criminal & Civil Justice Reform”
The $14 Billion Fumble
Even in the era of a Federal Trade Commission (FTC) led by Lina Khan, antitrust law can be a pretty hum-drum affair, consumed with minutiae about relevant markets, market shares, the Herfindahl-Hirschman Index (HHI), unilateral effects, coordinated effects, and possible efficiencies. Things get just a bit more interesting when there are allegations of a conspiracy ... The $14 Billion Fumble
What is the Appropriate Role for State Antitrust Enforcement?
In the U.S. system of dual federal and state sovereigns, a normative analysis reveals principles that could guide state antitrust-enforcement priorities, to promote complementarity in federal and state antitrust policy, and thereby advance consumer welfare. Discussion Positive analysis reveals that state antitrust enforcement is a firmly entrenched feature of American antitrust policy. The U.S. Supreme ... What is the Appropriate Role for State Antitrust Enforcement?
‘New Madison Approach’ Should Be Retained to Promote American Innovation
The leading contribution to sound competition policy made by former Assistant U.S. Attorney General Makan Delrahim was his enunciation of the “New Madison Approach” to patent-antitrust enforcement—and, in particular, to the antitrust treatment of standard essential patent licensing (see, for example, here, here, and here). In short (citations omitted): The New Madison Approach (“NMA”) advanced ... ‘New Madison Approach’ Should Be Retained to Promote American Innovation
FTC Antitrust Enforcement and the Rule of Law
The language of the federal antitrust laws is extremely general. Over more than a century, the federal courts have applied common-law techniques to construe this general language to provide guidance to the private sector as to what does or does not run afoul of the law. The interpretive process has been fraught with some uncertainty, ... FTC Antitrust Enforcement and the Rule of Law
How Changing Section 230 Could Disrupt Insurance Markets
In recent years, a diverse cross-section of advocates and politicians have leveled criticisms at Section 230 of the Communications Decency Act and its grant of legal immunity to interactive computer services. Proposed legislative changes to the law have been put forward by both Republicans and Democrats. It remains unclear whether Congress (or the courts) will ... How Changing Section 230 Could Disrupt Insurance Markets
The Klobuchar Bill’s Not-So-Bright Lines for Antitrust Scrutiny
In a recent op-ed, Robert Bork Jr. laments the Biden administration’s drive to jettison the Consumer Welfare Standard that has formed nearly half a century of antitrust jurisprudence. The move can be seen in the near-revolution at the Federal Trade Commission, in the president’s executive order on competition enforcement, and in several of the major ... The Klobuchar Bill’s Not-So-Bright Lines for Antitrust Scrutiny
Breaking Down House Democrats’ Forthcoming Competition Bills
Democratic leadership of the House Judiciary Committee have leaked the approach they plan to take to revise U.S. antitrust law and enforcement, with a particular focus on digital platforms. Broadly speaking, the bills would: raise fees for larger mergers and increase appropriations to the FTC and DOJ; require data portability and interoperability; declare that large ... Breaking Down House Democrats’ Forthcoming Competition Bills
The Globalization of Antitrust: A Cost-Benefit Appraisal
Overview Virtually all countries in the world have adopted competition laws over the last three decades. In a recent Mercatus Foundation Research Paper, I argue that the spread of these laws has benefits and risks. The abstract of my Paper states: The United States stood virtually alone when it enacted its first antitrust statute in ... The Globalization of Antitrust: A Cost-Benefit Appraisal
The Digital Markets Act Shouldn’t Mandate Radical Interoperability
Despite calls from some NGOs to mandate radical interoperability, the EU’s draft Digital Markets Act (DMA) adopted a more measured approach, requiring full interoperability only in “ancillary” services like identification or payment systems. There remains the possibility, however, that the DMA proposal will be amended to include stronger interoperability mandates, or that such amendments will ... The Digital Markets Act Shouldn’t Mandate Radical Interoperability
What You Need to Know About the EU’s New AI Regulation
The European Commission this week published its proposed Artificial Intelligence Regulation, setting out new rules for “artificial intelligence systems” used within the European Union. The regulation—the commission’s attempt to limit pernicious uses of AI without discouraging its adoption in beneficial cases—casts a wide net in defining AI to include essentially any software developed using machine ... What You Need to Know About the EU’s New AI Regulation
The Future of FTC Equitable Monetary Relief after AMG Capital Management
The U.S. Supreme Court’s just-published unanimous decision in AMG Capital Management LLC v. FTC—holding that Section 13(b) of the Federal Trade Commission Act does not authorize the commission to obtain court-ordered equitable monetary relief (such as restitution or disgorgement)—is not surprising. Moreover, by dissipating the cloud of litigation uncertainty that has surrounded the FTC’s recent ... The Future of FTC Equitable Monetary Relief after AMG Capital Management
Four Reasons to Reject Neo-Brandeisian Critiques of the Consumer Welfare Approach to Antitrust
In the battle of ideas, it is quite useful to be able to brandish clear and concise debating points in support of a proposition, backed by solid analysis. Toward that end, in a recent primer about antitrust law published by the Mercatus Center, I advance four reasons to reject neo-Brandeisian critiques of the consensus (at ... Four Reasons to Reject Neo-Brandeisian Critiques of the Consumer Welfare Approach to Antitrust
