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The Federal Trade Commission (“FTC” or “Commission”) is testing the boundaries of its authority with an enforcement policy that departs from the rule of reason in the antitrust laws and a procedural agenda that prescribes general regulations of business practices. Neither proposition is unprecedented. Both have reached the Supreme Court. In its first two decades, the Commission suffered numerous reversals in the courts when it declared business practices unfair without finding unjustifiable harm to competition. Although the Supreme Court has opined in dicta that the prohibitions in the FTC Act extend beyond violations the Sherman and Clayton Acts, it has not upheld a Commission decision on those grounds. The most expansive expression of the FTC’s powers rendered by the Court came with a remand directing the agency to analyze the record in accordance with the approach of the antitrust laws. Empowering the Commission to promulgate rules of competition was considered and rejected by the Congress that passed the FTC Act, and the Supreme Court held a comparable grant in the National Industrial Recovery Act to be an unconstitutional delegation of power. One court, however, did uphold a Commission competition regulation fifty years ago. The vitality of that decision is assessed in light of modern jurisprudence. At stake in the outcome of the Commission’s initiatives are the prices customers will pay and the costs that producers will bear. The Article will review enforcement of the Robinson-Patman Act for evidence of the costs of departures from antitrust norms. [ABSTRACT FROM AUTHOR]

The Chicago School of antitrust claims that it made a major contribution beginning in the late 1970s to making antitrust policy coherent and “scientific” by introducing basic economic concepts. It both advanced the Consumer Welfare Standard (a normative economic theory to segregate legitimate economic competition goals from “value judgments”) and a basic positive microeconomic theory to show how much of the conduct previously considered anticompetitive was justified on “efficiency” grounds. The PostChicago School economists have not challenged the Consumer Welfare Standard. Instead, the Post-Chicago School has asserted that Consumer Welfare Standard is redeemable—correctable for many of the overstatements and conservative political conclusions of the Chicago School. But many of the earlier Chicago School conclusions required assumptions that were not evident from the Chicago School economists and often not typical of the factual situations under scrutiny in antitrust cases. In the last decade a third school of antitrust scholars, the “New Brandeisians,” perhaps drawing from literature ignored during these waves of economic theory, have made major headway in antitrust circles. The New Brandeisians accept the advances of the Post-Chicago economists, but challenge PostChicago scholars’ devotion to the Consumer Welfare Standard, their understanding of antitrust history, and instead advocate that competition policy can address the traditional antitrust goals of political democracy and support for small business. They further claim that antitrust enforcement should be used to protect labor and to address inequality when it is being exacerbated by a traditional antitrust violation. In this Article, we will claim that economic theory—not just the sub discipline of industrial organization— supports the New Brandeisians. Specifically, modern welfare economics warrants the abandonment of the Consumer Welfare Standard as antiquated and deeply and irrevocably flawed. Moreover, economic history provides empirical evidence that the goals of the New Brandeisians will benefit the economy as a whole. Economics as a discipline is much broader and richer than these Consumer Welfare Standard advocates let on. By ignoring the larger discipline in economics and the advances that have taken place, antitrust discourse has been impoverished. The effect has been to cast the New Brandeisians as the outliers in terms of economic understanding, when it is the case that they are the only school to have the bulk of economics on their side. [ABSTRACT FROM AUTHOR]

This Article will trace out the implications of how preexisting market distortions affect the magnitude of the harm from making an error in antitrust enforcement. This Article will applywellaccepted logic from cost-benefit analysis to show that procompetitive mergers—or indeed any pro-competitive activities— produce benefits that could be substantially underestimated if one were to ignore the presence of preexisting distortions. Conversely, anti-competitive activities produce harms that could be substantially underestimated by an analysis that ignores preexisting distortions. These observations are especially relevant today as recent research has shown that the level of market power at the product level has increased, perhaps substantially, since the 1980s. On the buying side, there has been a growing recognition of the importance of monopsony power, especially in the labor market. These observations suggest that an analysis of mergers or other conduct must consider the costs and benefits of actions in a world with preexisting distortions. The conclusion is that antitrust matters more than one might otherwise think and therefore there are large costs to abandoning or de-emphasizing economic principles, as some have suggested, since the use of economics should lead to fewer errors. [ABSTRACT FROM AUTHOR]

In 2014, I published a pair of articles—Administrative Antitrust and Chevron and the Limits of Administrative Antitrust—that argued that the Supreme Court’s recent antitrust and administrative law jurisprudence was pushing antitrust law out of the judicial domain and into the domain of regulatory agencies. The first article focused on the Court’s then-recent antitrust cases and argued that the Court, which had abrogated most areas of federal common law, had shown a clear preference for handling commonlaw-like antitrust law on a statutory or regulatory basis where possible. The second article evaluated and rejected the Federal Trade Commission’s (“FTC’s”) long-held belief that its interpretations of the FTC Act do not receive Chevron deference. This Article will revisit those articles in light of the past decade of Supreme Court precedent. In reviewing those articles, this Article will argue that, for the same reasons that the Court seemed likely in 2013 to embrace an administrative approach to antitrust, today it is likely to view such approaches with great skepticism unless they are undertaken on a cautious and incrementalistic basis. That is, the Court will embrace an administrative approach to antitrust where it will prove less indeterminate than judicially defined antitrust law. If the FTC approaches antitrust law aggressively, decreasing the predictability of the law, the Court seems likely to close the door on administrative antitrust for reasons sounding in both administrative and antitrust law. This conclusion differs from other current work examining the Commission’s authority—such as on major questions grounds or whether the Commission has substantive “unfair methods of competition” rulemaking authority—in that it is primarily based on the Court’s views on the relationship of antitrust and administrative law. [ABSTRACT FROM AUTHOR]

The unprecedented increase in innovation in the information and communications technology ("ICT") sector experienced in recent years is closely related to the development of cellular standards (2G to 5G). These cellular standards owe their success to the fact that the patented inventions necessary to implement the standards (standard essential patents or "SEPs") are typically licensed on fair, reasonable and non-discriminatory ("FRAND") terms and conditions. Despite the undeniable success of these standards, some U.S. academics and antitrust-law authorities have expressed concerns over SEP owners potentially abusing their dominant position by threatening to use injunctions with the aim to extract excessive royalty rates. On the other hand, there is a growing consensus that injunctions should be granted against SEP users that are proven to be unwilling licensees. This Article will study the extensive insights on the concept of a willing licensee provided by European legal authorities and national courts, which have interpreted and applied the legal framework established by the Court of Justice of the EU ("CJEU") in Huawei v. ZTE. Finally, this Article will explain how, to keep the innovation circle alive, U.S. courts should take a balanced approach as regards the granting of injunctions for SEPs. [ABSTRACT FROM AUTHOR]

What is the legal basis for modern U.S. antitrust law? The Supreme Court has long rested its doctrinal stewardship of the Sherman Act on the notion that it is a “common-law statute,” with an implicit delegation to the Court to tinker with the metes and bounds of antitrust law as prudence requires. This Article interrogates the foundations of the “common-law statute” concept—and finds it lacking a solid foundation. Instead, this Article proposes that the Supreme Court’s Article III equity power is the better basis for understanding what has happened with antitrust—and what might happen with it in the future. [ABSTRACT FROM AUTHOR]

Through the rearview mirror of five state antitrust challenges, this Article provides a tour of state antitrust enforcement—from small cases brought by single states that made a splash, to cases so pivotal to antitrust practice that it seems as if there is nothing left unknown about them. The author discusses state challenges in Microsoft, Ovcon, Namenda, T-Mobile/Sprint, and Vyera, and provides a behind-the-scenes look at the impacts that these cases had on state enforcement. This Article also provides insights into how these cases affect current state antitrust litigation, and what observers might expect from the road ahead. [ABSTRACT FROM AUTHOR]

The Neo-Brandeisian movement seeks to unravel the bipartisan, decades-long consensus on antitrust enforcement premised on the consumer welfare standard. In recent years, seemingly disconnected developments signaled the coming attack on this consensus. A flood of changes from new FTC leadership beginning in 2021 confirmed that the consensus was under attack. These changes include policies meant to increase legal uncertainty around merger activity, consolidate power in the office of the Chair, and ignore the expertise of the FTC’s career staff. Many observers respect and analyze Neo-Brandeisian proposals as part of a sincere and coherent attempt to return the FTC to the early decades of antitrust enforcement. But research into political and economic theories reveals that the Neo-Brandeisian worldview draws heavily on historical concepts outside the antitrust field. [ABSTRACT FROM AUTHOR]

The article presents the discussion on the limits of antitrust laws defined by statutory legislation, judicial practice, and prosecutorial discretion. Topics include pursuing under the antitrust banner like curbing economic inequality, surveillance capitalism, and global warming; and context dependent appraisal of legal institutions, technology, and markets guiding the assessment.

The article examines the historical perspective that led to the embrace of the consumer welfare standard to guide antitrust policy and enforcement in the U.S. It mentions total welfare standard as an alternative to guide antitrust enforcement and total welfare standard can be implemented using data that are readily available in merger investigations. It also mentions consumer welfare standard approach is not dictated by the language of the Sherman and Clayton Acts.

Antitrust enforcement is back in the spotlight with advocates from both the political left and the populist political right demanding fundamental competition-policy changes. While there are differences among those calling for such changes, several common beliefs generally unite them. This includes a contention that the writings and interpretations of Robert Bork and the Chicago School of economics have led antitrust astray in a manner fundamentally inconsistent with the original intent of the Sherman Act. Further, they are united by a belief that recent empirical, economic studies indicate that the economy is becoming overly concentrated, that market power has been increasing dramatically, that performance in many, if not most, markets has been deficient, and that too much profit is going to too few firms. In this article, we identify and detail twelve fallacies of what they call the "neoantitrust movement" and their associated claims. At the heart of these fallacies is a fundamental misunderstanding of economics and the consumer welfare standard that has been at the heart of competition policy since at least the 1960s. Additionally, there is a heavy reliance on studies that, upon closer scrutiny, do not support the positions of those who cite them. While competition law should be amenable to change, many of the proposals of the neoantitrust movement would make antitrust less effective in its core mission without achieving the goal of ameliorating other possible injustices about which they are concerned. [ABSTRACT FROM AUTHOR]

The article focuses on durable success in the U.S. Federal Trade Commission (FTC) and challenges to that vision in both competition and consumer protection. It mentions paternalism in consumer protection and populism in antitrust and economic cult based in the University of Chicago somehow dominates FTC thinking particularly in antitrust. It also mentions misuse of courts and governmental agencies is a particularly effective means of delaying or stifling competition.

The article explores how to address innovation-based theories of harm caused by gaps in antitrust's consumer-welfare (CW) standard. It mentions need to demonstrating market power and CW standard requires plaintiffs in monopolization cases brought under Section 2 of the Sherman Act. It also mentions CW standard appropriately allows rule-of-reason judgments to replace per se prohibitions on conduct such as tying and price discrimination.

The article focuses on laws governing corporate mergers in the U.S. Topics discussed include impact of competition and antitrust on mergers; U.S. Federal Trade Commission's challenges of the proposed merger of Staples and Office Depot; and court case FTC v. Staples Inc. addressing corporate antitrust merger.

The article focuses on laws governing antitrust in China. Topics discussed icnlude efforts taken by the law enforcement agencies and courts in shaping antitrust policies on vertical restraints while focusing on resale price maintenance; use of judicial review for reducing the risks of same; and court cases Rainbow v. Johnson & Johnson, and Leegin Creative Leather Products, Inc. v. PSKS, Inc. addressing antitrust law.

The article discusess the economic aspect of cross-jurisdictional corporate mergers in the U.S. and China. Topics discussed include impact of economics and competition on corporate mergers; enactment of U.S. Clayton Act for controling antitrust violations; and behavioral remedies prescribed by the Ministry of Commerce of the People's Republic of China in case of Nokia and Alcatel Lucent merger.

The article focuses on challenges surrounding common portfolio licensing practices of standard-essential patents (SEP) holders in teh U.S. Topics discussed include an account of SEP-intensive telecommunications sector; licensing of SEP portfolios in fair, reasonable, and nondiscriminatory (FRAND) terms; and enactment of Sherman Act for regulating antitrust in the country.

The article focuses on the use of traditional comity by government agencies for ensuring that international competition law enforcement produces benefits and protections for consumers. Topics discussed include approaches for identifying and redressing antitrust violations; enactment of U.S. Sherman Act of 1890 for addressing the same; and Timberlane Lumber Co. v. Bank of Am. court case on antitrust law.

The article argues how mergers of business firms may violate the antitrust laws when they threaten to lessen competition in the U.S. Topics discussed include general welfare and consumer welfare standards; the burden shifting framework in which the government or private plaintiff challenging a merger must first establish a prima facie case of illegality; and merger litigation under the Merger Guidelines.

The article focuses on the causes and consequences of the evolution and disappearance of antitrust safe harbors within the modern antitrust law. It mentions that rise of antitrust safe harbors with the decision of Supreme Court's decision in Continental Television, Inc. v. GTE Sylvania which describe the subsequent disappearance of those safe harbors. It also mentions that framework for understanding the doctrinal and attitudinal shift in competition policy.

The article focuses on the scholarly work on the implications of Big Data on competition, and considers the potential role of antitrust in the regulation of Big Data. It mentions that academic literature specifically addressing the role of antitrust in Big Data issues, policy issues surrounding Big Data and whether it poses a risk to competition that warrants antitrust intervention and cases related to antitrust in Federal Trade Commission (FTC).

The article focuses on the panel discussion in the 19th Annual Antitrust symposium which features several legal professionals Terry Calvani, Frank Montag and Randy Tritell. Topics discussed include process values or due process in competition law, duty of an authority to follow the decision-making process determined by law and the differences in substantive antitrust law and the potential for conflicts.

The article focuses on the implications of the U.S. Supreme Court's decision in the case Comcast v. Behrend on proof of damages for class certification in antitrust class action suits regarding evidence and expert testimony. It mentions that liability and damages standards for Rule 23(b)(3) of the of the Federal Rules of Civil Procedure. It also mentions that the importance of tying of liability to damages in the certification stage with the development in civil procedure and antitrust law.

The article focuses on the growing of the clearinghouses and financial market infrastructures (FMls) with role of antitrust in regulated industries. It mentions that the U.S. Supreme Court in the case Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLPP regarding the balance between regulation and competition policy for essential facilities doctrine. It also mentions that the antitrust actions brought by the Department of Justice (DOJ) with safeguards against foreclosure.

The article presents a speech by Randolph W. Tritell, Director of the Office of International Affairs of the U.S. Federal Trade Commission (FTC). Topics of the speech include international antitrust activities of the FTC, efforts of Antitrust Division of the U.S. Department of Justice (DOJ) to handle the relationships with foreign agencies and the development of international cooperation by the formation of International Competition Network (ICN).

The article focuses on the relationship between antitrust and industrial policy in the U.S., Europe, and China and the impact of the lack of due process in antitrust authorities on inefficient competitors to achieve the industrial-policy goals. It mentions that how industrial policy hurts a broader competition policy and the competition-advocacy interventions. It also offers suggestions to use the industrial policy to promote consumer welfare and fosters long-term economic growth.

The article focuses on the relevant economics of conditional discounts and the economics of exclusion rather than of predation which offers the relevant paradigm for assessing antitrust claims. It mentions the U.S. Supreme Court cases such as Brooke Group Ltd. v. Brown & Williamson Tobacco Corp on the price-cost test which provides a safe harbor and the Continental T. V., Inc. v. GTE Sylvania Inc. on the antitrust analysis of vertical agreements.

The article focuses on how competition authorities in the U.S. such as Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) to promote the adoption of ideas about antitrust process and substance. It mentions that measures that individual jurisdictions to influence global competition law norms. It also mentions that processes and substantive standards of competition law in the future in the U.S. and the trade agreements.

The article focuses on the role that intellectual property rights play in high-technology markets and extraterritorial application of U.S. antitrust law involve international comity and sovereignty. It mentions that limited reach of domestic antitrust laws and the recent efforts by antitrust agencies to regulate the enforcement of foreign patents. It also mentions that U.S. Supreme Court decision of F. Hoffman-La Roche Ltd. v. Empagran S.A. related to domestic antitrust laws to foreign patents.

The article focuses on the development of the essential facilities doctrine and its potential applicability to intellectual property rights (IPRs). It mentions that essential facilities doctrine to IPRs in China and the impact of anti-monopoly law of China on harm consumers. It also mentions that U.S. court cases concerning essential facilities doctrine including Aspen Skiing Co. v. Aspen Highlands Skiing Corp. and Verizon Communications v. Law Offices of Curtis V. Trinko, LLP.

An essay is presented which focuses on the Collective Redress Recommendation on common principles for the antitrust damages adopted by the European Commission in 2013 to protect the breach of rights under European Union (EU) competition law and also consumer protection and environment protection. It mentions the contrast of collective redress mechanisms initiatives with the U.S. class action system. It also mentions Great Britain's Consumer Act as an ambitious collective regime.

The article offers information on the panel discussion held during the 18th annual antitrust symposium which featured several legal experts including Jaffer Abbasi and David T. Blonder and Aimee Imundo and moderated by Terry Calvani. Topics discussed include developments in global competition law, problems of lawyers with the regulations that emanated from Common Market for Eastern and Southern Africa (COMESA) and the enforcement authorities of International Competition Network.

The article focuses on printed issues to convey cutting-edge legal discourse on a condensed publication schedule and scholarship on topics from antitrust law's consumer welfare standard to global intellectual property systems.

The article focuses on the virtues of common law system responsible for the legal development in the U.S. Topics discussed include the role of the common law method in the development of competition policy under the antitrust laws, the role of the common law method in the fairness of the competition law, and the law enforcement for the conduct of business enterprises. It further discusses the exemptions for the violation of evidence law.

The article analyses the antitrust law under the sections 1 and 2 of the U.S. Sherman Act and Section 7 of the Clayton Act for the access of the conduct of patent assertion entities (PAE). Topics discussed include the rules made by the U.S. Federal Trade Commission (FTC) for consumer protection under the FTC Act, investigating the PAEs for the violation of the antitrust law, and the rules made for the acquisition of patents by the PAEs.

The article argues on the judicial opinion of the U.S. Supreme Court on the role of antitrust within the administrative law jurisprudence. Topics discussed include the decision of the Supreme Court on lawsuit Verizon Communications Inc. v. Law Offices of Curtis V. Trinko LLP, views of professor Philip Weiser on the separation of powers, and the importance of antitrust doctrines for administrative law jurisprudence. It further mentions the decision on Am. Elec. Power Co. v. Connecticut.

In this article, the author who had participated in the 17th Annual Antitrust Symposium presented his views on efficiency of the U.S. Federal Trade Commission (FTC) on the completion of its 100 years. Topics discussed include the efficient role of the FTC in consumer protection and antitrust policies, its role in providing proper business and consumer education, and the role of the FTC in analyzing the impact of the patent assertion entity (PAE) on competition and innovation.

The article focuses on a panel discussion that took place at the 17th Annual Antitrust Symposium having various legal professionals like William C. MacLeod and Jon Leibowitz as the members of panelist group and moderator. Topics discussed include the challenges to put the U.S. Federal Trade Commission (FTC) on a different track, rules for efficiently regulating the consumer protection and antitrust by the FTC, and its responsibility to regulate competitions as well.