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The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp
The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp
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The FTC has explicit antitrust authority to enforce the Clayton Act, although not the Sherman Act. More than a half century ago, however, the Supreme Court held that the FTC Act’s prohibition of “unfair methods of competition” reaches everything the Sherman Act reaches and also a “penumbra” of practices that are not technical Sherman Act violations. That view, which had fallen into disuse in recent decades, is now being revived.
This essay defends a limited version of that “penumbra” view and suggests several applications. First, while both Sherman Act provisions are open ended in their coverage, they have limitations. Section …