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The FTC’s UMC Statement Creates a Target for Federal Courts

TOTM The Federal Trade Commission’s (FTC) recently released Policy Statement on unfair methods of competition (UMC) has a number of profound problems, which I will detail below. But . . .

The Federal Trade Commission’s (FTC) recently released Policy Statement on unfair methods of competition (UMC) has a number of profound problems, which I will detail below. But first, some praise: if the FTC does indeed plan to bring many lawsuits challenging conduct as a standalone UMC (I am dubious it will), then the public ought to have notice about the change. Providing such notice is good government, and the new Statement surely provides that notice. And providing notice in this way was costly to the FTC: the contents of the statement make surviving judicial review harder, not easier (I will explain my reasons for this view below). Incurring that cost to provide notice deserves some praise.

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Antitrust & Consumer Protection

A Reflection on Commissioner Pai, Chairman Pai, and Public Service

TOTM Ajit Pai has been, in my view, the most successful, impactful minority commissioner in the history of the modern regulatory state. And it is that success that has led him to become the most successful and impactful chairman, too.

Much of this symposium celebrates Ajit’s contributions as chairman of the Federal Communications Commission and his accomplishments and leadership in that role. And rightly so. But Commissioner Pai, not just Chairman Pai, should also be recognized.

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Telecommunications & Regulated Utilities

Wright, Ginsburg, Lipsky and Yun: Connecting Vertical Merger Guidelines to Sound Economics

TOTM After much anticipation, the Department of Justice Antitrust Division and the Federal Trade Commission released a draft of the Vertical Merger Guidelines (VMGs) on January . . .

After much anticipation, the Department of Justice Antitrust Division and the Federal Trade Commission released a draft of the Vertical Merger Guidelines (VMGs) on January 10, 2020. The Global Antitrust Institute (GAI) will be submitting formal comments to the agencies regarding the VMGs and this post summarizes our main points.

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Antitrust & Consumer Protection

A Bargaining Model v. Reality in FTC v. Qualcomm: A Reply to Kattan & Muris

Popular Media In a recent article[1] Joe Kattan and Tim Muris (K&M) criticize our article[2] on the predictive power of bargaining models in antitrust, in which we used two recent applications to explore implications for uses of bargaining models in courts and antitrust agencies moving forward.

In a recent article Joe Kattan and Tim Muris (K&M) criticize our article on the predictive power of bargaining models in antitrust, in which we used two recent applications to explore implications for uses of bargaining models in courts and antitrust agencies moving forward.  Like other theoretical models used to predict competitive effects, complex bargaining models require courts and agencies rigorously to test their predictions against data from the real world markets and institutions to which they are being applied.  Where the “real-world evidence,” as Judge Leon described such data in AT&T/Time Warner, is inconsistent with the predictions of a complex bargaining model, then the tribunal should reject the model rather than reality.

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Antitrust & Consumer Protection

Joshua Wright at FTC Hearing #3: Multi-Sided Platforms, Labor Markets, and Potential Competition

Presentations & Interviews ICLE Senior Scholar Joshua Wright participated in the FTC’s Hearing #3: Multi-Sided Platforms, Labor Markets, and Potential Competition on the panel, Do the U.S. and . . .

ICLE Senior Scholar Joshua Wright participated in the FTC’s Hearing #3: Multi-Sided Platforms, Labor Markets, and Potential Competition on the panel, Do the U.S. and Europe Treat Competition Cases Involving Platforms Differently?  Read the full transcript here. Video of the event is embedded below.

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Antitrust & Consumer Protection

Joshua Wright at FTC Hearing #1: The Current Landscape of Competition and Privacy Law and Policy

Presentations & Interviews ICLE Senior Scholar Joshua Wright participated in the FTC’s Hearing #1: The Current Landscape of Competition and Privacy Law and Policy on the panel, Has . . .

ICLE Senior Scholar Joshua Wright participated in the FTC’s Hearing #1: The Current Landscape of Competition and Privacy Law and Policy on the panel, Has the US Economy Become More Concentrated and Less Competitive: A Review of the Data. Read the full transcript here. Video of the event is embedded below.

 

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Antitrust & Consumer Protection

Whither Conservative Merger Policy?

Popular Media When President Trump was first voted into office, there was significant speculation as to what changes we could expect to see within antitrust enforcement. The . . .

When President Trump was first voted into office, there was significant speculation as to what changes we could expect to see within antitrust enforcement. The Obama administration had for eight years led an aggressive antitrust campaign, and the incoming Republican administration was viewed with a mixture of anticipation and angst, depending upon whom you asked. Would we see a return of conservative antitrust principles, with strong criminal and civil enforcement where appropriate, policy tethered tightly to economic theory and evidence, and modesty born from both an understanding of the limits of antitrust and a recognition that intervention often makes consumers worse off? Or would populist sentiments — so prominent during the 2016 election cycle — percolate into antitrust enforcement as well? Would the Trump administration look more like the Reagan administration, the Obama administration, or something uniquely its own in this regard?

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Antitrust & Consumer Protection

Commissioner Wright Responds to Section 5 Symposium

TOTM I’d like to thank Geoff and Thom for organizing this symposium and creating a forum for an open and frank exchange of ideas about the . . .

I’d like to thank Geoff and Thom for organizing this symposium and creating a forum for an open and frank exchange of ideas about the FTC’s unfair methods of competition authority under Section 5.  In offering my own views in a concrete proposed Policy Statement and speech earlier this summer, I hoped to encourage just such a discussion about how the Commission can define its authority to prosecute unfair methods of competition in a way that both strengthens the agency’s ability to target anticompetitive conduct and provides much needed guidance to the business community.  During the course of this symposium, I have enjoyed reading the many thoughtful posts providing feedback on my specific proposal, as well as offering other views on how guidance and limits can be imposed on the Commission’s unfair methods of competition authority.  Through this marketplace of ideas, I believe the Commission can develop a consensus position and finally accomplish the long overdue task of articulating its views on the application of the agency’s signature competition statute.  As this symposium comes to a close, I’d like to make a couple quick observations and respond to a few specific comments about my proposal.

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Antitrust & Consumer Protection

Ginsburg & Wright on Behavioral Law and Economics: Its Origins, Fatal Flaws, and Implications for Liberty

Popular Media My paper with Judge Douglas H. Ginsburg (D.C. Circuit; NYU Law), Behavioral Law & Economics: Its Origins, Fatal Flaws, and Implications for Liberty, is posted . . .

My paper with Judge Douglas H. Ginsburg (D.C. Circuit; NYU Law), Behavioral Law & Economics: Its Origins, Fatal Flaws, and Implications for Liberty, is posted to SSRN and now published in the Northwestern Law Review.

Here is the abstract:

Behavioral economics combines economics and psychology to produce a body of evidence that individual choice behavior departs from that predicted by neoclassical economics in a number of decision-making situations. Emerging close on the heels of behavioral economics over the past thirty years has been the “behavioral law and economics” movement and its philosophical foundation — so-called “libertarian paternalism.” Even the least paternalistic version of behavioral law and economics makes two central claims about government regulation of seemingly irrational behavior: (1) the behavioral regulatory approach, by manipulating the way in which choices are framed for consumers, will increase welfare as measured by each individual’s own preferences and (2) a central planner can and will implement the behavioral law and economics policy program in a manner that respects liberty and does not limit the choices available to individuals. This Article draws attention to the second and less scrutinized of the behaviorists’ claims, viz., that behavioral law and economics poses no significant threat to liberty and individual autonomy. The behaviorists’ libertarian claims fail on their own terms. So long as behavioral law and economics continues to ignore the value to economic welfare and individual liberty of leaving individuals the freedom to choose and hence to err in making important decisions, “libertarian paternalism” will not only fail to fulfill its promise of increasing welfare while doing no harm to liberty, it will pose a significant risk of reducing both.

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Filed under: behavioral economics, behavioral economics, consumer financial protection bureau, consumer protection, economics, free to choose, Hayek, law and economics

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Antitrust & Consumer Protection