Antitrust Populism - International Center for Law & Economics

Antitrust Populism

Antitrust populism — also known as hipster antitrust and neo-brandeisian antitrust — attempts to challenge the well-established bases of antitrust law. Specifically, antitrust populists attack the consumer welfare standard, which they claim is either ineffective or insufficient to handle alleged new threats posed by firms, particularly those in the tech sector.

ICLE’s scholars believe that in general the consumer welfare standard and other modern antitrust doctrines that emerged from over a century of legal and economic experience are the most effective way to assess a wide variety of alleged anticompetitive behaviors. Meanwhile, to the extent that the consumer welfare standard appears unable effectively to handle alleged new threats, it is not due to the application of economic analysis of anticompetitive behavior per se; rather, it likely results from difficulties incorporating new data into existing models. As such, rather than throwing out the consumer welfare standard, the better approach would be for academics and enforcement officials to consider how best to adapt their models.

ICLE closely follows this debate and actively engages with it. Our scholars undertake detailed investigations of the role of new technologies and associated competition policy concerns. They then seek to deploy their research in ways that more appropriately frame those concerns without jettisoning a half-century or more of legal and economic learning.

The Rise of Neo-Brandeisian Competition Policy and the Threat to Evidence-Based Regulation: (FTC Hearings, ICLE Comment 1)

FTC Hearings on Competition & Consumer Protection in the 21st Century. Comments of the International Center for Law & Economics: The Rise of Neo-Brandeisian Competition Policy: Populism and Political Power and the Threat to Economically Grounded, Evidence-Based. Competition Law and Consumer Protection Regulation. Submitted August 20, 2018.

AT&T-Time Warner merger approved

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.

More on a possible Comcast/Fox deal

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.

The Real Reason Foundem Foundered

A pair of recent, long-form articles in the New York Times Magazine and Wired UK — the latest in a virtual journalistic cottage industry of such articles — chronicle the downfall of British price comparison site and stalwart Google provocateur, Foundem, and attribute its demise to anticompetitive behavior on the part of Google.

The illiberal vision of neo-Brandeisian antitrust

The urge to treat antitrust as a legal Swiss Army knife capable of correcting all manner of social and economic ills is apparently difficult for some to resist. Conflating size with market power, and market power with political power, many recent calls for regulation of industry — and the tech industry in particular — are framed in antitrust terms.