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Recent Antitrust and Regulatory Changes Both Unravel the Consensus

TOTM Presidential administrations over the last 50 years have pursued widely varying policy goals, but they have agreed—at least, in principle—that policies should be efficient and . . .

Presidential administrations over the last 50 years have pursued widely varying policy goals, but they have agreed—at least, in principle—that policies should be efficient and improve social welfare. Now, the Biden administration is taking steps to unravel that bipartisan consensus. We focus on different policy areas (Dudley on regulation and Sullivan on antitrust) and are struck by the similarities among the radical changes being proposed.

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Antitrust & Consumer Protection

The FTC, DOJ, and International Competition Law: Convergence Away From the Consumer Welfare Standard?

TOTM In less than two and a half years, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) have undone more than two decades of . . .

In less than two and a half years, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) have undone more than two decades of work aimed at moving global competition law toward an economics-friendly consumer welfare standard. In tandem with foreign competition authorities, the U.S. antitrust agencies are now cooperating in an effort to lead competition law in a consumer welfare-inimical direction, characterized by the promotion of debunked structuralist antitrust principles and a disdain for economic efficiency.

To better appreciate the dramatic turnabout represented by recent policy, an overview of U.S. efforts to promote global convergence toward best practices in competition law—an effort in which DOJ and FTC played leading roles—is warranted. In particular, I will focus on the role played over two decades by the International Competition Network (ICN) in fostering support for an economics-based, consumer welfare-centric approach to competition policy. Unfortunately, the Biden administration’s antitrust policies have short-circuited these efforts, at least temporarily.

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Antitrust & Consumer Protection

The FTC Tacks Into the Gale, Battening No Hatches: Part 1

TOTM The Evolution of FTC Antitrust Enforcement – Highlights of Its Origins and Major Trends 1910-1914 – Creation and Launch The election of 1912, which led . . .

The Evolution of FTC Antitrust Enforcement – Highlights of Its Origins and Major Trends

1910-1914 – Creation and Launch

The election of 1912, which led to the creation of the Federal Trade Commission (FTC), occurred at the apex of the Progressive Era. Since antebellum times, Grover Cleveland had been the only Democrat elected as president. But a Democratic landslide in the 1910 midterms during the Taft administration substantially reduced the Republicans’ Senate majority and gave the Democrats a huge majority in the House, signaling a major political shift. Spurred by progressive concern that Standard Oil—decided in 1911—signaled judicial leniency toward trusts and monopolies, government control of big business became the leading issue of the 1912 campaign. Both the progressive Democrats and the so-called Republican “insurgents” favored stronger antitrust laws, reduced hours and an antitrust exemption for workers, and closer federal regulation of banking and currency, among other items. Progressive agendas led both Woodrow Wilson’s “New Freedom” platform and the “New Nationalism” of former Republican President Theodore Roosevelt and his Bull Moose Party.

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Antitrust & Consumer Protection

Being an Arthurian: Complexity Economics, Law, and Science

Scholarship Abstract W. Brian Arthur is the father of complexity economics. He is also known for his work on the nature of technology, his experiments with . . .

Abstract

W. Brian Arthur is the father of complexity economics. He is also known for his work on the nature of technology, his experiments with agent-based modeling, and his entrepreneurial approach to science. This article seeks to explore the reasons why a scholar might identify as an “Arthurian,” with the aspiration of encouraging others to embrace Arthur’s research interests and emulate his approach to science.

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Innovation & the New Economy

Right to Anonymous Speech, Part 3: Anonymous Speech and Age-Verification Laws

TOTM An issue that came up during a terrific panel that I participated in last Thursday—organized by the Federalist Society’s Regulatory Transparency Project—was whether age-verification laws for social-media use . . .

An issue that came up during a terrific panel that I participated in last Thursday—organized by the Federalist Society’s Regulatory Transparency Project—was whether age-verification laws for social-media use infringed on a First Amendment right of either adults or minors to receive speech anonymously.

My co-panelist Clare Morell of the Ethics and Public Policy Center put together an excellent tweet thread summarizing some of her thoughts, including on the anonymous-speech angle. Another co-panelist—Shoshana Weissmann of the R Street Institute—also has a terrific series of blog posts on this particular issue.

Continuing this ongoing Truth on the Market series on anonymous speech, I wanted to respond to some of these ideas, and to argue that the primary First Amendment and public-policy concerns with age-verification laws really aren’t about anonymous speech. Instead, they are about whether such laws place the burden of avoiding harms on the least-cost avoider. Or, in the language of First Amendment jurisprudence, whether they are the least restrictive means to achieve a particular policy end.

Read the full piece here.

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Innovation & the New Economy

Minor Matters in Cyberspace: Examining Internet Age-Verification Regulations

TOTM I participated yesterday in a webinar panel hosted by the Federalist Society’s Regulatory Transparency Project. The video was livestreamed at YouTube. Below, I offer my . . .

I participated yesterday in a webinar panel hosted by the Federalist Society’s Regulatory Transparency Project. The video was livestreamed at YouTube. Below, I offer my opening remarks, with some links.

Thank you for having me. As mentioned, I’m a senior scholar in innovation policy at the International Center for Law & Economics (ICLE). This means I have the institutional responsibility to talk to you today about Ronald Coase and transaction costs. Don’t worry, I’ll define my terms and explain why these things are important. In fact, I think it could help to frame our discussion, before offering my own preliminary thoughts on the debates over a duty of care to protect minors online and online age-verification and parental-consent laws.

Read the full piece here.

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Innovation & the New Economy

Are Markups Really SO Bad?

TOTM Concentration is a terrible measure of [insert basically anything people actually care about]. Have I said that before? Concentration tells us nothing about market power, efficiency, or whether . . .

Concentration is a terrible measure of [insert basically anything people actually care about]. Have I said that before? Concentration tells us nothing about market power, efficiency, or whether policy changes can do anything to increase welfare. Economists know that, especially industrial organization (IO) economists.

If we want to measure market power for a seller, a better measure is the markup, defined as the ratio of price over marginal cost. If we want to measure market power for a buyer, we can look at the markdown. Either one is a better measure of market power (possibly bad) and often the very definition of market power.

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Antitrust & Consumer Protection

Markups and Business Dynamism Across Industries

Scholarship Abstract Evidence of rising market power in the U.S. economy has received widespread attention in macroeconomics literature. Recent research has linked trends in measured market . . .

Abstract

Evidence of rising market power in the U.S. economy has received widespread attention in macroeconomics literature. Recent research has linked trends in measured market power to other secular trends in the U.S., including multi-decade trends of declining rates of job reallocation and business entry (or “business dynamism”). Intuitively, firms with more market power are less responsive to shocks, and industries characterized by market power may have (or create) significant barriers to entry. Both forces predict a negative correlation between market power and business dynamism. However, industry-level data shows zero, or often a positive, correlation between markups and business dynamism; industries that experienced larger increases in markups had smaller decreases in dynamism on average. Those few industries that saw both large declines in markups and large declines in dynamism do not account for a significant share of the aggregate trends in markups and dynamism. Our results suggest that market power does not explain the decline in dynamism.

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Antitrust & Consumer Protection

Competition Increases Concentration

TOTM A market with 1,000 tiny sellers is not some ideal market. Concentration can be extremely beneficial, leading to economies of scale and stiffer competition to . . .

A market with 1,000 tiny sellers is not some ideal market. Concentration can be extremely beneficial, leading to economies of scale and stiffer competition to win a big share of the market.

Yet the Federal Trade Commission (FTC) and U.S. Justice Department’s (DOJ) draft merger guidelines double down on the idea that concentration is inherently a problem. They add new structural presumptions against concentration, for both horizontal and vertical mergers. Even worse, the agencies won’t recognize any efficiencies “if they will accelerate a trend toward concentration.”

The problem? Concentration is not a good proxy for competition. This post will go through some of the empirical work that generally finds that competition increases concentration. The FTC/DOJ are completely at odds with the economic literature on this point.

Read the whole piece here.

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Antitrust & Consumer Protection