The New Conservative Antitrust Is Not Here To Last

Elsewhere in this series, Thom Lambert has looked at recent statements by Assistant Attorney General Gail Slater of the United States Department of Justice, Federal Trade Commission (FTC) Chairman Andrew Ferguson, and Republican FTC Commissioner Mark Meador to identify and critique their understanding of “conservative antitrust.” I initially planned to take a similar approach, but Lambert has covered this ground better than I would have. I will instead focus more on where conservative antitrust is going—or not going, as the case may be. I will focus first on defining the dimensions of this new conservative antitrust—or, as Thom rightly calls it, “New Right” antitrust. Following Meador’s recent appearances, I think it is best understood as the application of antitrust to achieve populist ends. Unlike the Neo-Brandeisian approach to antitrust of the previous administration, which coupled concerns about market concentration with concerns about democratic outcome such that antitrust became a lens through which all political disagreement could be seen, this does give the new antitrust flavor an identifiable limiting principle that was sorely lacking during the Biden years. But ultimately, I argue that this limiting principle is insufficient to chart a viable path forward.

Read the full piece here.

The field known as “law and economics” occupies a prominent place in legal and economic analysis. To understand how this came to be, one must look beyond the ideas and examine the institutions and academic ventures that supported the development, dissemination, and diffusion of those ideas. The most important figure in this respect was Henry Manne, a Vanderbilt economics graduate with law degrees from Chicago and Yale. Manne was honored as one of the field’s “four founders” by the American Law and Economics Association at its inaugural meeting in 1991.

Read the full piece here.

Something interesting is happening in the American labor market, and lawmakers are paying attention.

On the Hill, Senate HELP Committee Chair Sen. Bill Cassidy’s (R-La.) new Unlocking Benefits for Independent Workers Act is gaining bipartisan attention, and similar efforts are moving forward in the House…

Read the full piece here.

Illinois Gov. JB Pritzker is railing against voter suppression—in Texas. He’s grandstanding on late-night TV as he hosts Democratic lawmakers fleeing the Lone Star State to block GOP redistricting efforts. But if he’s serious about democracy, Mr. Pritzker should start at home, where his state has its own form of voter suppression: Illinois holds local elections in February during off-cycle years, which keeps turnout low and helps insiders cling to power.

Read the full piece here.

The U.S. Supreme Court’s opinion in McLaughlin Chiropractic Associates v. McKesson Corp. is ostensibly about the Telephone Consumer Protection Act (TCPA), the 1990s-era law that—also ostensibly—makes robocalls and junk faxes illegal. But the opinion’s real importance is to reinforce last year’s decision in Loper Bright Enterprises v. Raimondo. That decision formally overruled Chevron v. Natural Resources Defense Council, and with it the era of default deference to reasonable agency interpretations of ambiguous statutes.

McLaughlin expands Loper Bright’s holding: Courts—not agencies—bear primary responsibility for interpreting statutes, unless the U.S. Congress expressly provides otherwise. Justice Brett Kavanaugh explained that “fundamental principles of administrative law establish the proper default rule: In an enforcement proceeding, a district court must independently determine for itself whether the agency’s interpretation of a statute is correct.”

Read the full piece here.

Increasing concentration throughout the U.S. food supply chain has been a focal point of politicians, regulators, and some industry stakeholders for at least the past 15 years. Proponents of more aggressive antitrust enforcement point to increasing price-cost markups over time and changes in industry concentration as justification. However, data on price markups and industry concentration are not very consistent with antitrust proponents’ claims.

Read the full piece here.

President Trump’s effort to punish law firms suffered yet another judicial defeat on June 27, when U.S. District Judge Loren AliKhan enjoined enforcement of his executive order targeting Susman Godfrey. But one seemingly obscure aspect of the case deserves more attention, as it suggests a broader threat to America’s system of free expression.

Read the full piece here.

Senator Bill Cassidy (R., La.) has introduced legislation that could reshape how millions of independent workers access benefits. His proposal follows a white paper released by the Senate Health, Education, Labor, and Pensions Committee, of which he is the chairman. Alongside recent bipartisan support for similar concepts, the proposal suggests that a rare consensus is starting to form over how employment benefits should be delivered in the modern economy.

Read the full piece here.

The recent oral argument in the Supreme Court case Trump v. CASA, Inc. suggests the administration may be pursuing a clever approach to draining judicial precedents of any meaning. Call it “winning by losing.”

If left unchecked, winning by losing may prove to be an effective way of undercutting judicial decisions and thus the law embodied in those decisions. The approach also establishes a connection between seemingly unrelated actions—the administration’s executive order rejecting the Court’s birthright citizenship precedents, its orders against (and agreements with) law firms, and its opposition to broad injunctive relief.

Read the full piece here.