Showing archive for: “Error Costs”
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
The FTC’s NPRM on Noncompete Clauses: Flirting with Institutional Crisis
The Federal Trade Commission’s (FTC) Jan. 5 “Notice of Proposed Rulemaking on Non-Compete Clauses” (NPRMNCC) is the first substantive FTC Act Section 6(g) “unfair methods of competition” rulemaking initiative following the release of the FTC’s November 2022 Section 5 Unfair Methods of Competition Policy Statement. Any final rule based on the NPRMNCC stands virtually no ... The FTC’s NPRM on Noncompete Clauses: Flirting with Institutional Crisis
Taking Cost-Benefit Analysis Seriously in Consumer-Data Regulation
In its Advance Notice for Proposed Rulemaking (ANPR) on Commercial Surveillance and Data Security, the Federal Trade Commission (FTC) has requested public comment on an unprecedented initiative to promulgate and implement wide-ranging rules concerning the gathering and use of consumer data in digital markets. In this contribution, I will assume, for the sake of argument, ... Taking Cost-Benefit Analysis Seriously in Consumer-Data Regulation
AICOA Is Neither Urgently Needed Nor Good: A Response to Professors Scott Morton, Salop, and Dinielli
Earlier this month, Professors Fiona Scott Morton, Steve Salop, and David Dinielli penned a letter expressing their “strong support” for the proposed American Innovation and Choice Online Act (AICOA). In the letter, the professors address criticisms of AICOA and urge its approval, despite possible imperfections. “Perhaps this bill could be made better if we lived in ... AICOA Is Neither Urgently Needed Nor Good: A Response to Professors Scott Morton, Salop, and Dinielli
DOJ’s Threatened Reign of Error: Proposed Criminal-Monopolization Prosecutions
The Biden administration’s antitrust reign of error continues apace. The U.S. Justice Department’s (DOJ) Antitrust Division has indicated in recent months that criminal prosecutions may be forthcoming under Section 2 of the Sherman Antitrust Act, but refuses to provide any guidance regarding enforcement criteria. Earlier this month, Deputy Assistant Attorney General Richard Powers stated that ... DOJ’s Threatened Reign of Error: Proposed Criminal-Monopolization Prosecutions
FTC Rulemaking Under UMC Could Mean Return of the National Nanny
The Federal Trade Commission (FTC) has been in the antitrust-enforcement business for more than 100 years. Its new leadership is considering some of the biggest changes ever in its enforcement methods. Instead of a detailed analysis of each case on its own merits, some FTC leaders now want its unelected bureaucrats to write competition rules ... FTC Rulemaking Under UMC Could Mean Return of the National Nanny
FTC Rulemaking and Unintended Consequences
For obvious reasons, many scholars, lawyers, and policymakers are thinking hard about whether the Federal Trade Commission (FTC) has authority to promulgate substantive “unfair methods of competition” (UMC) regulations. I first approached this issue a couple of years ago when the FTC asked me to present on the agency’s rulemaking powers. For my presentation, I ... FTC Rulemaking and Unintended Consequences
The FTC Abandons the Free Market
In December 2021, the Federal Trade Commission (FTC) released its statement of regulatory priorities for 2022, which describes its intention to expand the agency’s rulemaking activities to target “unfair methods of competition” (UMC) under Section 5 of the Federal Trade Commission Act (FTC Act), in addition to (and in some cases, presumably in place of) ... The FTC Abandons the Free Market
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
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
Attention Markets: They Know Them When they See Them
A raft of progressive scholars in recent years have argued that antitrust law remains blind to the emergence of so-called “attention markets,” in which firms compete by converting user attention into advertising revenue. This blindness, the scholars argue, has caused antitrust enforcers to clear harmful mergers in these industries. It certainly appears the argument is ... Attention Markets: They Know Them When they See Them
Final DMA: Now We Know Where We’re Going, but We Still Don’t Know Why
After years of debate and negotiations, European Lawmakers have agreed upon what will most likely be the final iteration of the Digital Markets Act (“DMA”), following the March 24 final round of “trilogue” talks. For the uninitiated, the DMA is one in a string of legislative proposals around the globe intended to “rein in” tech ... Final DMA: Now We Know Where We’re Going, but We Still Don’t Know Why
