Showing archive for: “Supreme Court”
Regulating Competition at the FTC
Introduction In November 2021, the Federal Trade Commission (FTC) published a draft strategic plan for fiscal years 2022-2026 that previewed its vision for enforcement without the rule of reason guiding the analysis and without consumer welfare defining the objective. The draft plan dropped a longstanding commitment from the FTC’s previous strategic plans to foster “vigorous ... Regulating Competition at the FTC
The Market for Speech Governance: Free Speech Strikes Back?
The tentatively pending sale of Twitter to Elon Musk has been greeted with celebration by many on the right, along with lamentation by some on the left, regarding what it portends for the platform’s moderation policies. Musk, for his part, has announced that he believes Twitter should be a free-speech haven and that it needs ... The Market for Speech Governance: Free Speech Strikes Back?
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?
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
Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook
Introduction The States brought an antitrust complaint against Facebook alleging that various conduct violated Section 2 of the Sherman Act. The ICLE brief addresses the States’ allegations that Facebook refused to provide access to an input, a set of application-programming interfaces that developers use in order to access Facebook’s network of social-media users (Facebook’s Platform), ... Application of the Proper ‘Outer Boundary’ of Antitrust Liability for Alleged Refusals to Deal in New York v Facebook
Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple
The International Center for Law & Economics (ICLE) filed an amicus brief on behalf of itself and 26 distinguished law & economics scholars with the 9th U.S. Circuit Court of Appeals in the hotly anticipated and intensely important Epic Games v Apple case. A fantastic group of attorneys from White & Case generously assisted us ... Assessing Less Restrictive Alternatives and Interbrand Competition in Epic v Apple
In Apple v Epic, 9th Circuit Should Remember that Antitrust Forbids Enhancing, not Exercising, Market Power
On March 31, I and several other law and economics scholars filed an amicus brief in Epic Games v. Apple, which is on appeal to the U.S. Court of Appeals for Ninth Circuit. In this post, I summarize the central arguments of the brief, which was joined by Alden Abbott, Henry Butler, Alan Meese, Aurelien ... In Apple v Epic, 9th Circuit Should Remember that Antitrust Forbids Enhancing, not Exercising, Market Power
How US and EU Competition Law Differ
U.S. and European competition laws diverge in numerous ways that have important real-world effects. Understanding these differences is vital, particularly as lawmakers in the United States, and the rest of the world, consider adopting a more “European” approach to competition. In broad terms, the European approach is more centralized and political. The European Commission’s Directorate ... How US and EU Competition Law Differ
Old Ideas and the New New Deal
Over the past decade and a half, virtually every branch of the federal government has taken steps to weaken the patent system. As reflected in President Joe Biden’s July 2021 executive order, these restraints on patent enforcement are now being coupled with antitrust policies that, in large part, adopt a “big is bad” approach in ... Old Ideas and the New New Deal
Congress Should Not Grant the FTC Untrammeled Authority to Obtain Monetary Relief
The U.S. House this week passed H.R. 2668, the Consumer Protection and Recovery Act (CPRA), which authorizes the Federal Trade Commission (FTC) to seek monetary relief in federal courts for injunctions brought under Section 13(b) of the Federal Trade Commission Act. Potential relief under the CPRA is comprehensive. It includes “restitution for losses, rescission or ... Congress Should Not Grant the FTC Untrammeled Authority to Obtain Monetary Relief
