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TOTM AT&T’s merger with Time Warner has lead to one of the most important, but least interesting, antitrust trials in recent history. It’s about a close to a “pure” vertical merger as we can get in today’s world and would not lead to a measurable increase in prices paid by consumers.
AT&T’s merger with Time Warner has lead to one of the most important, but least interesting, antitrust trials in recent history.
Read the full piece here.
TOTM In an ideal world, it would not be necessary to block websites in order to combat piracy. But we do not live in an ideal world. We live in a world in which enormous amounts of content—from books and software to movies and music—is being distributed illegally. As a result, content creators and owners are being deprived of their rights and of the revenue that would flow from legitimate consumption of that content.
In an ideal world, it would not be necessary to block websites in order to combat piracy. But we do not live in an ideal world. We live in a world in which enormous amounts of content—from books and software to movies and music—is being distributed illegally. As a result, content creators and owners are being deprived of their rights and of the revenue that would flow from legitimate consumption of that content.
TOTM In brief, Delrahim spent virtually the entirety of his short remarks making and remaking the fundamental point at the center of my own assessment of the antitrust risk of a possible Comcast/Fox deal: The DOJ’s challenge of the AT&T/Time Warner merger tells you nothing about the likelihood that the agency would challenge a Comcast/Fox merger.
A few weeks ago I posted a preliminary assessment of the relative antitrust risk of a Comcast vs Disney purchase of 21st Century Fox assets. (Also available in pdf as an ICLE Issue brief, here). On the eve of Judge Leon’s decision in the AT&T/Time Warner merger case, it seems worthwhile to supplement that assessment by calling attention to Assistant Attorney General Makan Delrahim’s remarks at The Deal’s Corporate Governance Conference last week. Somehow these remarks seem to have passed with little notice, but, given their timing, they deserve quite a bit more attention.
TOTM A recent exchange between Chris Walker and Philip Hamburger about Walker’s ongoing empirical work on the Chevron doctrine (the idea that judges must defer to reasonable agency interpretations of ambiguous statutes) . . .
A recent exchange between Chris Walker and Philip Hamburger about Walker’s ongoing empirical work on the Chevron doctrine (the idea that judges must defer to reasonable agency interpretations of ambiguous statutes) gives me a long-sought opportunity to discuss what I view as the greatest practical problem with the Chevron doctrine: it increases both politicization and polarization of law and policy. In the interest of being provocative, I will frame the discussion below by saying that both Walker & Hamburger are wrong (though actually I believe both are quite correct in their respective critiques). In particular, I argue that Walker is wrong that Chevron decreases politicization (it actually increases it, vice his empirics); and I argue Hamburger is wrong that judicial independence is, on its own, a virtue that demands preservation. Rather, I argue, Chevron increases overall politicization across the government; and judicial independence can and should play an important role in checking legislative abdication of its role as a politically-accountable legislature in a way that would moderate that overall politicization.
Written Testimonies & Filings Summary Chairwoman Greenstein, Vice Chairman Lagana, and members of the Law and Public Safety Committee, thank you for giving me the opportunity to testify before . . .
Chairwoman Greenstein, Vice Chairman Lagana, and members of the Law and Public Safety Committee, thank you for giving me the opportunity to testify before you.
The general thrust of my comments today is that bad incentives exist in the law enforcement practice known as Civil Asset Forfeiture (“CAF”) that lead to violations of our citizens’ civil rights. Without the support of the New Jersey legislature, it will be next to impossible to identify where and how those incentives are working to undermine our justice system. Thus, S1963, and its counterpart in the General Assembly, A3442, provide a crucial first step in the process of coming to understand how CAF is practiced in New Jersey, and where our legislature will need to look next to root out any systematic injustices being perpetrated through CAF programs.
I believe there is a problem with how civil asset forfeiture is practiced on the whole, but even for those relatively more supportive of the practice, there is a way to conceptually divide the potentially problematic aspects of CAF in order to find areas for reform.
The problems of CAF are separable into two conceptual groups: in the first group there are bad systemic incentives that are distinct from the second group of more specific problems of procedural justice in individual cases. Indeed, if bad incentives exist within a legal system, that surely constitutes a breach of procedural justice as well, but the problems associated with systemic incentives operate on a global scale and are addressable as such, whereas the procedural justice issues such as presumptions, proof standards, and civil rights guarantees are typically more cognizable within a particular case.
When we talk about the incentives that drive CAF as a general law enforcement program, we think about things like whether law enforcement can retain the proceeds of the program and what utility those programs have generally on proceedings against criminal networks. On the other hand, when we think about procedural justice concerns, like the right to representation or the standard of proof, we are focused more on how the operation of a program affects individual citizens that are brought into the system as defendants (or, more precisely, parties with claims to property that is subject to a forfeiture proceeding).
The procedural justice problems that exist in CAF programs are troubling, and deserve the careful consideration of this body. Today, however, I intend to focus my remarks on the incentive problems with CAF programs because they are more directly implicated, and would stand most to be rectified, by the pending legislation before the Senate and Assembly.
As detailed further below, there are due process protections, guaranteed by the U.S. and New Jersey Constitutions, that are owed to individuals subjected to CAF proceedings. Yet, as CAF programs operate, these protections are systematically undermined. Based on the relevant case law from the Supreme Court, the due process protections are clear: individuals entrusted with protecting the public good, like prosecutors and other law enforcement officers, have an obligation to act on behalf of the community, free from incentives to bend the power of their offices to self-serving ends.
CAF has a place in law enforcement, and can be a useful tool for disrupting criminal networks. There must be, however, systemic protections that disrupt the possibility for bad incentives to work on our public servants. First, these protections should include a requirement that seized property be sent to some neutral fund — the general fund, a fund for drug treatment or prisoner reentry, or something of similar general applicability. By allowing law enforcement personnel to retain seized property for use by their department, we allow a distorting pressure to be placed on our public servants that is flatly unconstitutional.
Second, and the subject of today’s hearing, there should be general, standardized reporting requirements applied through uniform legislation on all agencies that seize property. These reports should be publicly available, and presented in a format that helps citizens to understand what property is being taken, what sorts of people it is being taken from, how much is being taken, and what exact uses it is being put to. Without this sort of transparency, we introduce yet more distortion into the administration of justice.
There is much more to do. We need, I believe, strong civil rights protections for persons who are subject to CAF proceedings. But I also believe that starting with greater transparency requirements like those contained in the bills under consideration would go a long way toward rectifying some of the major flaws in CAF proceedings.
ICLE Issue Brief As has been rumored in the press for a few weeks, Comcast announced today that it is considering a renewed bid for a large chunk of Twenty-First Century Fox’s (Fox) assets. In December 2017, Fox’s board rejected a bid from Comcast that was some 16% higher than the one it ultimately accepted from Disney.
As has been rumored in the press for a few weeks, Comcast announced today that it is considering a renewed bid for a large chunk of Twenty-First Century Fox’s (Fox) assets. In December 2017, Fox’s board rejected a bid from Comcast that was some 16% higher than the one it ultimately accepted from Disney.
The board’s decision was based largely on its assessment that a merger with Comcast created unacceptable antitrust risk, where a merger with Disney did not.
In a brief analysis of the proposed deal, ICLE executive director and antitrust expert, Geoffrey Manne, posits that there is no basis for ascribing a greater antitrust risk to Comcast’s purchase of Fox’s assets than to Disney’s.
Among other things, Manne discusses why the DOJ’s AT&T/Time Warner merger challenge doesn’t increase the risk that the DOJ would challenge a Comcast/Fox deal. His analysis also touches on:
In sum, Manne finds that while a Comcast/Fox deal may pose some antitrust enforcement risk, it certainly doesn’t entail sufficient risk to deem the deal dead on arrival — and it seems to represent less regulatory risk than a Disney/Fox tie-up.
Continue reading the full paper
TOTM At this point, only the most masochistic and cynical among DC’s policy elite actually desire for the net neutrality conflict to continue. And yet, despite claims that . . .
At this point, only the most masochistic and cynical among DC’s policy elite actually desire for the net neutrality conflict to continue. And yet, despite claims that net neutrality principles are critical to protecting consumers, passage of the current Congressional Review Act (“CRA”) disapproval resolution in Congress would undermine consumer protection and promise only to drag out the fight even longer.
TOTM Although not always front page news, International Trade Commission (“ITC”) decisions can have major impacts on trade policy and antitrust law. Scott Kieff, a former . . .
Although not always front page news, International Trade Commission (“ITC”) decisions can have major impacts on trade policy and antitrust law. Scott Kieff, a former ITC Commissioner, recently published a thoughtful analysis of Certain Carbon and Alloy Steel Products — a potentially important ITC investigation that implicates the intersection of these two policy areas. Scott was on the ITC when the investigation was initiated in 2016, but left in 2017 before the decision was finally issued in March of this year.
ICLE White Paper In 1973, Michigan Senator Philip A. Hart introduced Senate Bill 1167, the Industrial Reorganization Act, in order to address perceived problems arising from industrial concentration. The bill was rooted in the belief that industry concentration led inexorably to monopoly power.
In 1973, Michigan Senator Philip A. Hart introduced Senate Bill 1167, the Industrial Reorganization Act, in order to address perceived problems arising from industrial concentration. The bill was rooted in the belief that industry concentration led inexorably to monopoly power; that monopoly power, however obtained, posed an inexorable threat to freedom and prosperity; and that the antitrust laws (i.e., the Sherman and Clayton Acts) were insufficient to address the purported problems.
That sentiment — rooted in the reflexive application of the (largely-discredited) structure-conduct-performance (SCP) paradigm — had become largely passe?, but has resurfaced today as the asserted justification for similar (although less onerous) antitrust reform legislation and the general approach to antitrust analysis commonly known as “hipster antitrust.”
The critiques leveled against the asserted economic underpinnings of efforts like the Industrial Reorganization Act are as relevant today as they were then.
The proposed bill itself was the subject of a series of hearings in both the Senate and the House, including one on April 9, 1974, at which Henry G. Manne (then professor of law and political science at the University of Rochester) testified (along with UCLA economist, Harold Demsetz) in opposition to the bill. His trenchant testimony, reprinted in full in Section 2, below, should be required reading for advocates of a return to antitrust law and policy rooted in the SCP paradigm.
As Henry Manne notes in his testimony:
To be successful in this stated aim [“getting the government out of the market”] the following dreams would have to come true: The members of both the special commission and the court established by the bill would have to be satisfied merely to complete their assigned task and then abdicate their tremendous power and authority; they would have to know how to satisfactorily define and identify the limits of the industries to be restructured; the Government’s regulation would not sacrifice significant efficiencies or economies of scale; and the incentive for new firms to enter an industry would not be diminished by the threat of a punitive response to success.
The lessons of history, economic theory, and practical politics argue overwhelmingly against every one of these assumptions.
Manne’s trenchant testimony, reprinted in full in this white paper (with introductory material by Geoffrey Manne) should be required reading for advocates of a return to antitrust law and policy rooted in the SCP paradigm.
