Antitrust and Trade Regulation Commons^™

Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill

Faculty Scholarship

The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …

The Case For "Unfair Methods Of Competition" Rulemaking, Rohit Chopra, Lina M. Khan

Faculty Scholarship

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and fact-specific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of …

Antitrust Via Rulemaking: Competition Catalysts, Tim Wu

Faculty Scholarship

In its March 26, 2016 issue, The Economist magazine announced that "America needs a giant dose of competition." Its study of industry concentration and profits suggested that, after decades of consolidation, competition had decreased across a broad range of the American economy. An April 2016 issue brief by the Council of Economic Advisors reached similar conclusions, stating that "competition appears to be declining" due to "increasing industry concentration, increasing rents accruing to a few firms, and lower levels of firm entry and labor market mobility."

The promotion of competition in the American economy is a task that has traditionally fallen …