Law Commons^™

Antitrust For Dominant Digital Platforms: An Alternative To The Monopoly Power Standard To Restore Competition, Jordan Ramsey

Senior Honors Theses

Antitrust law is meant to promote competition by prohibiting anticompetitive business practices such as mergers and acquisitions as well as exclusionary conduct. Judicial interpretation of antitrust law has allowed dominant digital platforms to undertake anticompetitive actions without prosecution. The Sherman Antitrust Act should be amended to remove the monopoly power standard that allows firms to engage in anticompetitive conduct as long as the conduct does not create or uphold monopoly power. The amendment would make anticompetitive conduct illegal regardless of monopoly power, as long as six proof requirements are met. This would result in lessened market concentration, which would benefit …

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …

Section 5 In Action: Reinvigorating The Ftc Act And The Rule Of Law, Lina M. Khan

Faculty Scholarship

The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.

This is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s …

Q&A With Lina Khan, Chair Of The U.S. Federal Trade Commission And Mark Glick, Professor Of Economics At The University Of Utah, Lina M. Khan

Faculty Scholarship

Let me tell you a little about Lina. Lina attended Yale Law school and while a third-year law student she wrote her famous and influential article Amazon’s Anti-Trust Paradox. Then, after graduating from law school, she worked as the legal director at the Open Markets Institute and during that period she continued to write a large number of influential antitrust papers. She then joined the faculty of my alma mater, Columbia Law School. In 2019, she was appointed as counsel to the U.S. House Judiciary Subcomittee on Antitrust, Commercial, and Administrative Law and, in 2021, President Biden appointed her …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

Due Process In Antitrust Enforcement: Normative And Comparative Perspectives, Christopher S. Yoo, Yong Huang, Thomas Fetzer, Shan Jiang

All Faculty Scholarship

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and …

Antitrust In Attention Markets: Objections And Responses, John M. Newman

Articles

The modern antitrust enterprise finds itself under attack. Critics complain that enforcement agencies have done nothing to stem an ever-rising tide of market concentration and corporate power. At the center of this critique lies Silicon Valley, home of a new generation of tech giants.

This symposium contribution contends that attention markets represent the largest sector of the modern economy to have gone unnoticed by antitrust regulators. If it is to fulfill its congressional mandate, the antitrust enterprise must begin paying attention to attention markets. A number of objections to this straightforward point have been raised, but each collapses under close …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland

All Faculty Scholarship

Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …

Welcome And Introductory Remarks, Jonathan Baker

Presentations

Video link: https://vimeo.com/352303633Audio link: https://www.ftc.gov/news-events/audio-video/audio/economics-big-data-privacy-competition-introductionThe Federal Trade Commission held the sixth session in its Hearings initiative, with two and a half days of sessions on November 6 – 8, 2018, at American University Washington College of Law, in Washington, D.C.The hearings examined the role that data play in competition and innovation and will also consider the antitrust analysis of mergers and firm conduct where data is a key asset or product.The Commission invited public comment on these issues, including the questions listed below. Comments were due January 7, 2019. If any entity has provided funding for research, analysis, or commentary …

Has The Us Economy Become More Concentrated And Less Competitive: A Review Of The Data, Jonathan Baker, Steven Berry, Fiona Scott Morton, Joshua Wright, Gregory Werden

Congressional and Other Testimony

FTC Chairman Joe Simons presented opening remarks, followed by a day of discussion by a distinguished set of panelists who discussed the following topics (some of which will be discussed on the rescheduled date):the current landscape of competition and consumer protection law and policy;whether the U.S. economy has become more concentrated and less competitive;the regulation of consumer data;antitrust law and the consumer welfare standard; andthe analysis of vertical mergers.This hearing was initially scheduled for September 13-14, 2018, but the second day sessions were rescheduled to November 1 due to inclement weather.

Taking Antitrust Away From The Courts, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

A small number of firms hold significant market power in a wide variety of sectors of the economy, leading commentators across the political spectrum to call for a reinvigoration of antitrust enforcement. But the antitrust agencies have been surprisingly timid in response to this challenge, and when they have tried to assert themselves, they have often found that hostile courts block their ability to foster competitive markets. In other areas of law, Congress delegates power to agencies, agencies make regulations setting standards, and courts provide deferential review after the fact. Antitrust doesn’t work this way. Courts – made up of …

Hipster Antitrust: New Bottles, Same Old W(H)Ine?, Christopher S. Yoo

All Faculty Scholarship

Although the debate over hipster antitrust is often portrayed as something new, experienced observers recognize it as a replay of an old argument that was resolved by the global consensus that antitrust should focus on consumer welfare rather than on the size of firms, the levels of industry concentration, and other considerations. Moreover, the history of the Federal Trade Commission’s Section 5 authority to prevent unfair methods of competition stands as a reminder of the dangers of allowing enforcement policy to be guided by vague and uncertain standards.

Trade Associations, Information Exchange, And Cartels, Spencer Weber Waller

Faculty Publications & Other Works

Trade associations can play a procompetitive role in an economy but, as an association of actual and potential competitors, can also raise important competition law issues that must be addressed carefully by legal counsel. This Issue Paper presents a hypothetical problem that illustrates many of the issues that counsel can confront in representing a trade association, its members, or company executives. The Issue Paper raises many of the issues from a United States' perspective with occasional comparative examples from other jurisdictions. Carefully consider how your jurisdiction would, and should, address these all too real issues. In thinking about the …

Peeling Back The Student Privacy Pledge, Alexi Pfeffer-Gillett

Scholarly Articles

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection.

Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. …

A Profile Of Bio-Pharma Consolidation Activity, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

Where Do We Go From Here: Open Questions And Policy Considerations, Jonathan Baker, Fiona Scott Morton, Daniel Crane, Richard Steuer, Michael Whinston, C. Hemphill, Deborah Feinstein, Renata Hesse

Presentations

The Federal Trade Commission and the Antitrust Division of the Department of Justice held a one-day public workshop on June 23, 2014 to explore the economics and legal policy implications of certain pricing practices, such as loyalty and bundled pricing. The workshop, consisted of presentations and roundtable discussions, that focused on practices in which prices are explicitly or effectively contingent on commitments to purchase or sell a specified share or volume of a single product or a mix of multiple products. Workshop participants considered theoretical and empirical developments in the economic understanding of these practices, discussed developments in the relevant …

Should Section 5 Guidelines Focus On Economic Efficiency Or Consumer Choice?, Robert H. Lande

All Faculty Scholarship

FTC Commissioner Joshua Wright is right that it would be desirable for the Commission to issue Section 5 antitrust guidelines. This article will demonstrate, however, that the best way to formulate Section 5 guidelines is to focus them on the goal of protecting consumer choice, rather than to embrace Commissioner Wright's proposal to neuter the FTC Act by confining it in an economic efficiency straitjacket. Only if Section 5 guidelines were formulated appropriately would they improve consumer welfare during the Commission's second century.

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

Articles

The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …

Paradoxes Of Digital Antitrust, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Josh Wright’S “Chicago School Papers”: An Overview, William H. Page

UF Law Faculty Publications

In what follows, I consider three of FTC Commissioner Josh Wright's “Chicago School Papers.” In these papers, Commissioner Wright considers the past, present, and future role of the Chicago School of antitrust analysis in the shaping of law and policy, offering along the way some interesting insights into what his priorities at the FTC are likely to be. The papers discussed have common themes: the mischaracterization of the “Chicago School,” the scientific advantage of dispensing altogether with “School” labels, and a focus on empirical findings in shaping antitrust analysis.

Bargaining Over Loyalty, Daniel A. Crane

Articles

Contracts between suppliers and customers frequently contain provisions rewarding the customer for exhibiting loyalty to the seller. For example, suppliers may offer customers preferential pricing for buying a specified percentage of their requirements from the supplier or buying minimum numbers of products across multiple product lines. Such loyalty-inducing contracts have come under attack on antitrust grounds because of their potential to foreclose competitors or soften competition by enabling tacit collusion among suppliers. This Article defends loyalty inducement as a commercial practice. Although it can be anticompetitive under some circumstances, rewarding loyal customers is usually procompetitive and price reducing. The two …

Section 5 And The Innovation Curve, Daniel A. Crane

Book Chapters

the ftc’s authority to use Section 5 of the FTC Act to reach anticompetitive conduct that would not be illegal under the Sherman or Clayton Acts has been much discussed in recent years, particularly in conjunction with the FTC’s enforcement action against Intel. As of this writing, a Section 5 action against Google seems imminent.

How The Ftc Could Beat Google, Robert H. Lande, Jonathan L. Rubin

All Faculty Scholarship

The U.S. Federal Trade Commission is rumored to be deciding whether to bring a “pure Section 5” case against Google as a result of complaints that the company unfairly favors its own offerings over those of its rivals in its search results. But the case will fail miserably at the hands of a reviewing court and the agency will be confined to relatively non-controversial enforcement violations if the FTC fails to impose upon itself a tightly bounded and constrained legal framework that contains clear limiting principles. The only way a court will allow the FTC to pursue a pure Section …

A Neo-Chicago Perspective On Antitrust Institutions, Daniel A. Crane

Articles

It has long been fashionable to categorize antitrust by its "schools." From the Sherman Act's passage to World War II, there were (at least) neo-classical marginalism, populism, progressivism, associationalism, business commonwealthism, and Brandeisianism. From World War II to the present, we have seen (at least, and without counting the European Ordo-Liberals) PaleoHarvard structuralism, the Chicago School, Neo-Harvard institutionalism, and Post -Chicagoans. So why not Neo-Chicago? I am already on record as suggesting the possible emergence of such a school, so it is too late for me to dismiss the entire "schools" conversation as window-dressing. This Symposium is dedicated to defining …

Toward A Unified Theory Of Exclusionary Vertical Restraints, Daniel A. Crane, Graciela Miralles

Articles

The law of exclusionary vertical restraints-contractual or other business relationships between vertically related firms-is deeply confused and inconsistent in both the United States and the European Union. A variety of vertical practices, including predatory pricing, tying, exclusive dealing, price discrimination, and bundling, are treated very differently based on formalistic distinctions that bear no relationship to the practices' exclusionary potential. We propose a comprehensive, unified test for all exclusionary vertical restraints that centers on two factors: foreclosure and substantiality. We then assign economic content to these factors. A restraint forecloses if it denies equally efficient rivals a reasonable opportunity to make …

The Intel And Microsoft Settlements, Robert H. Lande

All Faculty Scholarship

This article briefly compares and contrasts the recent U.S. Federal Trade Commission's antitrust settlement with Intel, and the antitrust cases brought against Microsoft. The article praises the FTC's settlement with Intel, and predicts that history will judge it very favorably compared to the settlement by the U.S. Department of Justice of its antitrust case against Microsoft.

Ftc V. Intel: Applying The "Consumer Choice" Framework To "Pure" Section 5 Allegations, Robert H. Lande

All Faculty Scholarship

This short article analyzes the "pure" Section 5 allegations in the recent FTC complaint against Intel. It first shows that Section 5 of the Federal Trade Commission Act is more encompassing than the Sherman Act and why this breath is in the public interest. It next analyzes allegations from the Intel Complaint, showing why each appears to be in the public interest yet might not be permitted by the Sherman Act. It also discusses other advantages that would arise if these charges were litigated under Section 5 rather than the Sherman Act.

The article notes assertions by Intel and others …

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

All Faculty Scholarship

The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that courts …