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The Rule of Law & FTC: Thesis & Antithesis? Some Proposals
Volume 86 Issue 3 Dickinson Law Review - Volume 86, 1981-1982 3-1-1982 The Rule of Law & FTC: Thesis & Antithesis? Some Proposals John A. Maher Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation John A. Maher, The Rule of Law & FTC: Thesis & Antithesis? Some Proposals, 86 DICK. L. REV. 403 (1982). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol86/iss3/2 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. The Rule of Law & FTC: Thesis & Antithesis? Some Proposals John A. Maher* I. Introduction A. Recent Events December 17, 1980 is a remarkable date for those interested in either quality of government or, more particularly, evolution of the Federal Trade Commission's sense of the unfair.' On that day, the five Commissioners then in office2 purported to renounce Commis- sion reliance on what they apparently regarded as a non-exclusive substantive rule of decision concerning the content of their enabling 3 act's use of "unfair . .acts or practices." That renounced can be said to possess the cachet of Supreme Court approval by reason of a unanimous opinion in FTC.v. Sperry & Hutchinson Co.4 (S&H). * A.B. 1951, University of Notre Dame; LL.B. 1956, LL.M. (Trade Regulation) 1957, New York University; Professor, Dickinson School of Law. Professor Maher currently serves the Banking & Business Law Section of the Pennsylvania Bar Association as chairperson of its antitrust committee and as a member of its committee for reform and recodification of Penn- sylvania's corporation and partnership laws. -
George Mason Law Review 19Th Annual Antitrust Symposium: Antitrust in an Interconnected World
HENRY G. MANNE PROGRAM IN LAW & ECONOMICS STUDIES GEORGE MASON LAW REVIEW 19TH ANNUAL ANTITRUST SYMPOSIUM: ANTITRUST IN AN INTERCONNECTED WORLD FEBRUARY 18, 2016 WELCOME HENRY G. MANNE PROGRAM IN LAW & ECONOMICS STUDIES GEORGE MASON LAW REVIEW 19TH ANNUAL ANTITRUST SYMPOSIUM FEBRUARY 18, 2016, ARLINGTON, VA ABOUT US OUR PROGRAMS CONTENTS Since its inception in 1974, the THE MASON JUDICIAL EDUCATION PROGRAM is the nation’s Law & Economics Center has preeminent provider of high-quality, balanced judicial educational Agenda 2 played a critical role as a leader in seminars and conferences that focus on economics, finance, accounting, law and economics research and statistics, and scientific method. The LEC has been offering programs for Speaker Bios 6 education. The LEC recognizes judges since 1976. both the importance of timely, relevant, and unassailable research THE HENRY G. MANNE PROGRAM IN LAW & ECONOMICS STUDIES LEC Contact Info 19 on public policy issues as well as promotes law and economics scholarship by funding faculty research and the necessity of communicating hosting policy-relevant research roundtables and academic conferences. Upcoming Schedule 21 research findings to those who are directly shaping our country’s THE SEARLE CIVIL JUSTICE INSTITUTE is a public policy institute public policy discussions. With devoted to producing timely, analytically rigorous, and balanced research research divisions devoted to on important civil justice issues confronting our free enterprise system. large-scale empirical projects and top-quality legal policy analysis, THE MASON ATTORNEYS GENERAL EDUCATION PROGRAM offers and educational arms reaching courses that provide a broad-based understanding of economic and public out to judges, attorneys general, policy issues to state attorneys general and their staff attorneys. -
Amazon's Antitrust Paradox
LINA M. KHAN Amazon’s Antitrust Paradox abstract. Amazon is the titan of twenty-first century commerce. In addition to being a re- tailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and ex- pand widely instead. Through this strategy, the company has positioned itself at the center of e- commerce and now serves as essential infrastructure for a host of other businesses that depend upon it. Elements of the firm’s structure and conduct pose anticompetitive concerns—yet it has escaped antitrust scrutiny. This Note argues that the current framework in antitrust—specifically its pegging competi- tion to “consumer welfare,” defined as short-term price effects—is unequipped to capture the ar- chitecture of market power in the modern economy. We cannot cognize the potential harms to competition posed by Amazon’s dominance if we measure competition primarily through price and output. Specifically, current doctrine underappreciates the risk of predatory pricing and how integration across distinct business lines may prove anticompetitive. These concerns are height- ened in the context of online platforms for two reasons. First, the economics of platform markets create incentives for a company to pursue growth over profits, a strategy that investors have re- warded. Under these conditions, predatory pricing becomes highly rational—even as existing doctrine treats it as irrational and therefore implausible. -
Caspar Weinberger and the Reagan Defense Buildup
The University of Southern Mississippi The Aquila Digital Community Dissertations Fall 12-2013 Direct Responsibility: Caspar Weinberger and the Reagan Defense Buildup Robert Howard Wieland University of Southern Mississippi Follow this and additional works at: https://aquila.usm.edu/dissertations Part of the American Studies Commons, Military History Commons, Political History Commons, and the United States History Commons Recommended Citation Wieland, Robert Howard, "Direct Responsibility: Caspar Weinberger and the Reagan Defense Buildup" (2013). Dissertations. 218. https://aquila.usm.edu/dissertations/218 This Dissertation is brought to you for free and open access by The Aquila Digital Community. It has been accepted for inclusion in Dissertations by an authorized administrator of The Aquila Digital Community. For more information, please contact [email protected]. The University of Southern Mississippi DIRECT RESPONSIBILITY: CASPAR WEINBERGER AND THE REAGAN DEFENSE BUILDUP by Robert Howard Wieland Abstract of a Dissertation Submitted to the Graduate School Of The University of Southern Mississippi In Partial Fulfillment of the Requirements For the Degree of Doctor of Philosophy December 2013 ABSTRACT DIRECT RESPONSIBILITY: CASPAR WEINBERGER AND THE REAGAN DEFENSE BUILDUP by Robert Howard Wieland December 2013 This dissertation explores the life of Caspar Weinberger and explains why President Reagan chose him for Secretary of Defense. Weinberger, not a defense technocrat, managed a massive defense buildup of 1.5 trillion dollars over a four year period. A biographical approach to Weinberger illuminates Reagan’s selection, for in many ways Weinberger harkens back to an earlier type of defense manager more akin to Elihu Root than Robert McNamara; more a man of letters than technocrat. -
Academia and Law, 63-64 Administrative Law Judges (Aljs), 54, 86
INDEX academia and law, 63-64 administrative law judges (ALJs), 54, 86, 153-54 advertising, 72 and children, 77 corrective, 52-53 industry study, 54-55 Joe Camel campaign, 167-68 Aleinikoff, T. Alexander, 184 American Bar Association Antitrust Law Section, 42,43,44,45, 93, 108-109, 138 Commission to Study the FTC, 42-50 second Kirkpatrick Commission Report, 84, 124 Anthony, Sheila, 163 AOL (America On Line), 140, 147-48 Areeda, Phillip E., 68, 71 Areen, Judith, 100, 101, 108, 184 Arnold & Porter, 30, 52, 60, 92, 178, 180, 182, 187 Ashenfeld, Orley, 143 Askanaga, Mary, 123 Association of American Law Schools (AALS), 67 automobile industry, 75-76 Baer, William J., 89-90, 124, 135, 160, 171 Baker, Jonathan, 124 Bar Association of the District of Columbia, 93-94 Bartel, Paul, 81 Bator, Paul, 64, 68, 70, 71 Baxter, William, 91 Beard, Dita, 87 Beechnut/Heinz, 142, 145-46 Bernstein, Jodie, 51-52, 124, 128, 133, 135, 139, 154, 165, 167, 171 Bar Association of the District of Columbia, 93, 94 and Food and Drug Administration (FDA), 173 identity theft measures, 176-77 review process changes, 169-70 Bernstein, Lewis, 28 Bingaman, Anne, 116-17,121, 137 Black, Charles, 19 Blake, Harlan, 39,40,43, 62 Boast, Molly, 171 Boies, David, 125, 156, 157 -AI- Bok, Betty, 43 Bork, Robert, 3 8, 120 BP/Arco, 148-49 Brandeis, Louis D., 125 Brennan, William J., 5, 100 Breyer, Stephen, 60, 68, 71, 152 Brown, Charles, 157 Browne, John, 148 Buc, Nancy, 5 1,56 Bureau of Consumer Protection. See Federal Trade Commission Burson, Charles, 119 Bush, George, 121, 179 Bush, George W., 163, 179, 180 Califano, Joseph, 33,61,68, 100, 106 Calkins, Stephen, 124 cartels, 128-30 Carter, James E. -
Competition Agencies, Independence, and the Political Process
Unclassified DAF/COMP/WD(2014)86 Organisation de Coopération et de Développement Économiques Organisation for Economic Co-operation and Development 27-Nov-2014 ___________________________________________________________________________________________ _____________ English - Or. English DIRECTORATE FOR FINANCIAL AND ENTERPRISE AFFAIRS COMPETITION COMMITTEE Unclassified DAF/COMP/WD(2014)86 COMPETITION AGENCIES, INDEPENDENCE, AND THE POLITICAL PROCESS -- Chapter by William Kovacic (George Washington University, United States) -- 17-18 December 2014 This chapter by William Kovacic (George Washington University, United States) was submitted as background material for the Roundtable on Changes in Institutional Design of Competition Authorities which will take place at the 122nd meeting of the OECD Competition Committee on 17-18 December 2014. It is an extract from Competition Policy and the Economic Approach, edited by Josef Drexl, Wolfgang Kerber and Rupprecht Podszun. Published by Edward Elgar, 2011. The opinions expressed and arguments employed herein do not necessarily reflect the official views of the Organisation or of the governments of its member countries. More documents related to this discussion can be found at http://www.oecd.org/daf/competition/changes-in- competition-institutional-design.htm. This document is available as a PDF only English JT03367265 Complete document available on OLIS in its original format - This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of Or international frontiers and boundaries and to the name of any territory, city or area. English DAF/COMP/WD(2014)86 2 Graham HD:Users:Graham:Public:GRAHAM'S IMAC JOBS:12764 - EE - DREXL:M2555 - DREXL PRINT 16. Competition agencies, independence, and the political process William E. -
FTC Nominee Expected to Oppose Broad Privacy Rules
Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.com Phone: +1 646 783 7100 | Fax: +1 646 783 7161 | [email protected] FTC Nominee Expected To Oppose Broad Privacy Rules By Bibeka Shrestha Law360, New York (September 2, 2011) -- If confirmed, Federal Trade Commission nominee Maureen Ohlhausen would likely call for greater transparency about privacy practices but fight comprehensive restrictions on the collection and use of consumer information, according to privacy experts. Should the Senate greenlight President Barack Obama's pick, Ohlhausen would leave her partner position at Wilkinson Barker Knauer LLP's privacy, data protection and cybersecurity practice to join the FTC's five-member board as its second Republican commissioner for a seven-year term starting Sept. 26. Ohlhausen would replace Republican Commissioner William Kovacic, who has served on the commission since January 2006. Experts say it would be surprising for the technology policy heavyweight to meekly sign on to FTC Chairman Jon Leibowitz's privacy agenda, which seeks to set a minimum standard of conduct for companies across the board that collect personal information, rather than focusing on specific sectors like the financial industry. "As a general matter, I do not think that she would not support 'substantive' regulation — restrictions on what companies can collect and disclose or how they can use the information that they collect," said Andrew Smith, a Morrison & Foerster LLP partner who worked closely with Ohlhausen while at the FTC's Bureau of Consumer Protection. Leibowitz has sought to move past the notice-and-choice mechanism espoused under the George W. -
Panel Consisting of Robert Pitofsky, Professor of Law, Georgetown University Law Center, Washing- Ton, Dc; Cass R
572 PANEL CONSISTING OF ROBERT PITOFSKY, PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHING- TON, DC; CASS R. SUNSTEIN, PROFESSOR, UNIVERSITY OF CHICAGO LAW SCHOOL AND DEPARTMENT OF POLITICAL SCIENCE, CHICAGO, IL; AND MARTHA MATTHEWS, STAFF AT- TORNEY, NATIONAL CENTER FOR YOUTH LAW, AND FORMER LAW CLERK TO JUDGE STEPHEN G. BREYER, SAN FRAN- CISCO, CA STATEMENT OF ROBERT PITOFSKY Mr. PITOFSKY. Thank you, Senator Kennedy. It is a privilege to be invited to testify in these important hearings. I believe that Steve Breyer from all points of view is an outstand- ing nominee to the Supreme Court. I will concentrate today, how- ever, on that part of his record dealing with economic regulation and particularly his record in antitrust. That record has been sub- ject to very thoughtful questions by Senator Metzenbaum and oth- ers on the committee, and subject to some criticism by witnesses who testified a little earlier today. I recognize two themes in the criticism. One is sort of a numbers game approach that Judge Breyer is supposed to have decided an unusual number of cases in favor of defendants in antitrust cases, and then there has been some criticism of specific decisions. As far as the numbers game is concerned, first of all, if people are going to use the numbers game approach, they ought to get their numbers right. The claim is—I nave heard it repeatedly today—that he decided 16 consecutive cases against the defendant. Actually, the score was 14 to 2, and I cited two cases for the plain- tiff in my prepared testimony. -
Antitrust and Deregulation Abstract
HOWARD SHELANSKI Antitrust and Deregulation abstract. Because regulation works alongside antitrust law to govern market structure and economic conduct in the United States, deregulatory cycles can create gaps in competition enforce- ment. Antitrust is sometimes portrayed as just another form of government intervention that a deregulatory administration should also diminish. This Feature argues that policy makers should resist that political logic. Instead, antitrust should become stronger as regulation becomes weaker. Antitrust as a countercyclical force to deregulation will most directly help to protect consumers from enforcement gaps that result as competition-related rules recede. But antitrust enforcement in deregulating markets can also help to demonstrate where antitrust can govern markets more effectively and efficiently than regulation; it canovide pr the federal courts with an opportunity to clarify recent Supreme Court decisions on the boundary between antitrust and regulation; and it can better inform ongoing policy debates about the effectiveness of antitrust by providing a more accurate view of what antitrust enforcement can accomplish with its existing legal and analytic framework. Not only is each of these benefits of countercyclical antitrust enforcement important in its own right, but together they can lead to better policy choices between antitrust and regula- tory solutions as political cycles change over time. author. Professor of Law, Georgetown University; Partner, Davis Polk & Wardwell LLP. The author previously served as Administrator of the White House Office of Information and Regula- tory Affairs and as Director of the Federal Trade Commission’s Bureau of Economics. The author is grateful to Jonathan Sallet, Scott Hemphill, Catherine Waddams, Erik Herron, workshop par- ticipants at the University of East Anglia, and participants in the conference on “Unlocking the Promise of Antitrust Enforcement” at American University for helpful comments. -
Bait-And-Switch" Regulation
William & Mary Business Law Review Volume 4 (2013) Issue 2 Article 6 April 2013 Explaining "Bait-and-Switch" Regulation David Adam Friedman Follow this and additional works at: https://scholarship.law.wm.edu/wmblr Part of the Commercial Law Commons Repository Citation David Adam Friedman, Explaining "Bait-and-Switch" Regulation, 4 Wm. & Mary Bus. L. Rev. 575 (2013), https://scholarship.law.wm.edu/wmblr/vol4/iss2/6 Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmblr EXPLAINING “BAIT-AND-SWITCH” REGULATION * DAVID ADAM FRIEDMAN ABSTRACT “Bait and switch” can describe a range of commercial behaviors com- mon in the everyday marketplace, but virtually ignored in the academic literature. The traditional definition of unlawful bait and switch applies to insincere offers to sell one item in order to induce the buyer to purchase another. Certain sellers have historically employed bait-and-switch tactics, including urban retailers, aluminum siding companies, and supermarkets. Colloquially, this definition can also cover lawful or other borderline sales tactics, including the use of teaser rates or low introductory pricing, or even “free offers.” Even common lawful tactics, like the deliberate routing of customers past other retail displays on their way to purchase high-volume or featured items, may involve “bait” to induce other purchases. Why are some of these behaviors lawful and others unlawful? In this Article, I examine several different flavors of bait-and-switch tactics, ex- ploring the underlying behaviors behind the tactics and the welfare impli- cations of regulating them. -
The End of Antitrust History Revisited
BOOK REVIEW THE END OF ANTITRUST HISTORY REVISITED THE CURSE OF BIGNESS: ANTITRUST IN THE NEW GILDED AGE. By Tim Wu. New York, N.Y.: Columbia Global Reports. 2018. Pp. 154. $14.99. Reviewed by Lina M. Khan∗ INTRODUCTION In April 2007 the Antitrust Modernization Commission reported to Congress that “the state of the U.S. antitrust laws” was “sound.”1 Created by lawmakers to examine whether antitrust laws should be re- vised, the bipartisan Commission concluded that existing statutes were sufficiently flexible to address emerging issues, and that courts, antitrust agencies, and practitioners were now in proper agreement that “con- sumer welfare” was the “unifying goal of antitrust law.”2 A decade later, the American Bar Association’s Antitrust Section delivered a similar as- sessment, remarking that “the Nation’s system of competition enforce- ment has been in good hands.”3 These reports represented a high-water mark of agreement within the antitrust community that, despite ongoing debates about specific doctrinal tests or particular standards of proof, antitrust law was, altogether, on the right course. The fact that antitrust had shed its public appeal in favor of an expert-driven enterprise — becoming “less democratic and more technocratic”4 — was generally seen as further evidence of its success.5 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Academic Fellow, Columbia Law School; Counsel, U.S. House Committee on the Judiciary, Subcommittee on Antitrust, Commercial, and Administrative Law. This Review reflects my per- sonal views and not those of the Committee or any of its members. For insightful comments and conversations, I am grateful to Eleanor Fox, David Grewal, Lev Menand, John Newman, and Mar- shall Steinbaum. -
Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 115 CONGRESS, SECOND SESSION
E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 115 CONGRESS, SECOND SESSION Vol. 164 WASHINGTON, WEDNESDAY, MAY 9, 2018 No. 75 House of Representatives The House met at 10 a.m. and was housing. Now, in my district, in the ownership is out of the question. Even called to order by the Speaker pro tem- East Bay in northern California, the as a dedicated public servant, I can’t pore (Mr. COMER). average renter in Oakland would be afford to work in urban schools in the f forced to spend a staggering—mind Bay area. you, staggering—70 percent of their in- A former student wrote me: I had to DESIGNATION OF SPEAKER PRO come on housing if they were to move withdraw from classes at UC Berkeley TEMPORE today. That is 70 percent. Clearly, the so I could find stable housing and The SPEAKER pro tempore laid be- affordable housing crisis is off the scale enough income to afford my monthly fore the House the following commu- in my district. rent. nication from the Speaker: In April, I sent an email to my con- Mr. Speaker, our community, our WASHINGTON, DC, stituents asking for their stories and country, cannot function without May 9, 2018. suggestions on how to address this very nurses, teachers, or young people living I hereby appoint the Honorable JAMES important issue. Today I would like to in decent affordable housing. We need COMER to act as Speaker pro tempore on this share just a few of those stories which to solve this crisis before it is too late.