Antitrust & Consumer Protection

Topics

Ideally, regulatory agencies enforce antitrust laws to increase competition among businesses, prevent market stagnation, and promote consumer welfare. Despite often major intrusions into the market, agencies have sometimes failed to meet these goals. Why is this the case and what are workable solutions?

Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement

April 15, 2019

The authors of this paper argue that the modern consumer welfare standard is an objective, consistent, reliable, and appropriate framework for good antitrust law and enforcement.

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Consumer Protection at the FTC and the CFPB

November 16, 2017

In this paper, James Cooper, Timothy Muris, and Todd Zywicki examine and make recommendations to help improve consumer protection efforts at both the Federal Trade Commission and the Consumer Financial Protection Bureau.

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State Licensing Boards, Antitrust, and Innovation

November 13, 2017

In this paper, James Cooper, Elyse Dorsey, and Joshua Wright discuss occupational licensing boards, competition, and the role antitrust law can play in the marketplace.

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Deep Dive Episode 203 – FTC’s Revolution Through Rulemaking

November 4, 2021

A panel of experts discusses the FTC’s statutory authority, processes and procedures, and likely upcoming actions.

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Deep Dive Episode 197 – Competition at a Crossroads: Will the Executive Order on Competition Advance Competition, or Restrict It?

September 10, 2021

A distinguished panel joined us to lay out the arguments behind and implications of Biden’s executive order on competition.

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Deep Dive Episode 189 – A Dawning Era for Vertical Mergers? The New Vertical Merger Guidelines, Illumina/Grail, and More

July 15, 2021

An expert panel discusses the recent developments in the vertical merger space, the Illumina/Grail case, and the future of antitrust enforcement.

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Deep Dive Episode 178 – (Un)Civil War: The Future of Conservative Antitrust

May 11, 2021

Professors Joshua D. Wright and John Yun discuss the future of the conservative approach to antitrust law.

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Deep Dive Episode 176 – Courthouse Steps Decision: AMG Capital Management v. FTC

May 4, 2021

Experts discuss the Supreme Court’s recent decision and its implications for the FTC’s ability to seek, or a court to award, monetary relief such as restitution.

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Deep Dive Episode 175 – Big Tech and Antitrust

April 29, 2021

The Federalist Society’s Chicago Lawyers Chapter hosted a panel of antitrust experts to discuss the current debates over antitrust law and Big Tech.

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Deep Dive Episode 171 – Courthouse Steps Oral Argument: NCAA v. Alston

April 12, 2021

Joshua Wright joins us to discuss oral arguments in NCAA v. Alston and the potential implications of the case.

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Deep Dive Episode 166 – The CFPB Taskforce Report on Federal Consumer Financial Law

March 4, 2021

CFPB Taskforce on Federal Consumer Financial Law Chair Todd Zywicki joins us to discuss his taskforce’s report.

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Deep Dive Episode 165 – Fireside Chat on the State of the FTC with Bilal Sayyed

March 3, 2021

Bilal Sayyed and Svetlana Gans discuss the state of the FTC, the challenges facing the agency, and the path ahead in the new administration.

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Deep Dive Episode 162 – Is Common Carrier the Solution to Social-Media Censorship?

February 17, 2021

Experts discuss the practicality and desirability of using common carrier to regulate social media content moderation.

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Explainer Episode 22 – Senator Klobuchar’s Antitrust Bill

February 11, 2021

Asheesh Agarwal and Ashley Baker join the podcast to discuss Senator Amy Klobuchar’s recently-announced bill to amend antitrust law.

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Deep Dive Episode 158 – Courthouse Steps Oral Arguments: AMG Capital Management v. FTC

January 27, 2021

A distinguished panel analyzes oral arguments in AMG Capital Management v. FTC, a case that could define the scope of the FTC’s remedial authority.

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Explainer Episode 19 – The Burden of Proof in Competition Law

December 2, 2020

Ashley Baker discusses the burden of proof framework currently used in competition law, the role of presumptions in antitrust litigation, and the potential implications of the burden shift proposed in a recent House Judiciary report.

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Deep Dive Episode 146 – Fireside Chat with FTC Commissioner Noah Phillips

November 23, 2020

In this live podcast, FTC Commissioner Noah Phillips, Svetlana Gans, and Koren Wong-Ervin discuss the House Judiciary’s recent staff report and its potential ramifications.

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Deep Dive Episode 144 – United States v. Google: Examining the Historic Antitrust Case Against Big Tech

November 11, 2020

This distinguished panel debated the merits of the DOJ’s antitrust claims, discussed the potential parallels to antitrust action against Microsoft, and opined on the government’s likelihood of success at trial.

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Deep Dive Episode 137 – Antitrust Populism and the Conservative Movement

October 14, 2020

On October 7, 2020, the Federalist Society’s Pennsylvania Student Chapter and the Regulatory Transparency Project co-sponsored an event on “Antitrust Populism and the Conservative Movement.”

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Deep Dive Episode 130 – FTC v. Qualcomm: The Ninth Circuit on Tech Antitrust

September 3, 2020

John Shu discusses the Ninth Circuit’s ruling in FTC v. Qualcomm and examines the history, arguments, and ramifications of the case.

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Deep Dive Episode 120 – FTC Rulemaking: Underutilized Tool or National Nanny Renewed?

July 13, 2020

This expert panel examines recent calls for the Federal Trade Commission (FTC) to engage in substantive rulemaking under the competition and consumer-protection prongs of Section 5 of the FTC Act. How far does FTC statutory authority under 6(g) extend? Is rulemaking appropriate as a matter of policy? How has FTC rulemaking fared in the past and what guideposts should apply?

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Deep Dive Episode 112 – FTC Hot Topics with Commissioner Christine Wilson: Regulatory Reform, Privacy, Antitrust, & Beyond

May 21, 2020

Please enjoy this recording of our May 18, 2020 fireside chat discussion on the Federal Trade Commission’s regulatory reform efforts, federal privacy legislation, and the future of antitrust law.

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Deep Dive Episode 105 – Do We Need to Rethink Antitrust for Big Tech?

April 16, 2020

On March 4, 2020, the Regulatory Transparency Project sponsored a symposium with the University of Pennsylvania Federalist Society student chapter. The first panel of the symposium was titled “Do We Need to Rethink Antitrust for Big Tech?”

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Deep Dive Episode 78 – FTC’s 21st Century Hearings

October 28, 2019

With the conclusion of the Federal Trade Commission’s 21st Century Hearings, the agency is finalizing several reports concerning the state of competition in the US, vertical mergers, the consumer welfare standard, and privacy.

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Deep Dive Episode 57 – Payday Lending Loans

June 5, 2019

In this episode, Todd Zywicki (Antonin Scalia Law School) discusses recent proposed rulemaking from the Consumer Financial Protection Bureau rescinding the “ability to repay” standard on small dollar lenders.

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Deep Dive Episode 46 – Big Tech, Competition, and Antitrust Enforcement

April 24, 2019

Neil Chilson and Charlotte Slaiman discuss the debate over governmental oversight of big tech companies and the proper role of the federal government in promoting consumer welfare and market competition.

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Deep Dive Episode 44 – Pepperdine Law Review’s 2019 Symposium Keynote Address: Roger Alford

April 16, 2019

In this episode, Roger Alford (Deputy Assistant Attorney General for International Affairs) addresses consent decrees, consumer welfare, and the challenges of the emerging global digital markets.

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Deep Dive Episode 42 – Populist Antitrust

April 4, 2019

In this panel, the speakers debate varying standards for antitrust rule-making and enforcement. The merits of the Neo-Brandeisian “populist” approach are weighed against more recent “consumer-welfare” standards.

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The FTC in the Current Administration: Buckle Your Seatbelts

November 18, 2021

An expert panel debates the future of the FTC.

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FTC’s Revolution Through Rulemaking

November 4, 2021

A panel of experts discusses the FTC’s statutory authority, processes and procedures, and likely upcoming actions.

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Competition at a Crossroads: Will the EO on Competition Advance Competition, or Restrict It?

September 10, 2021

A distinguished panel joined us to lay out the arguments behind and implications of Biden’s executive order on competition.

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A Dawning Era for Vertical Mergers? The New Vertical Merger Guidelines, the FTC’s Challenge to Illumina/Grail, and the Future of Enforcement

July 9, 2021

A panel of experts discusses the recent developments in the vertical merger space, the theories at issue in the Illumina/Grail case, and implications for future enforcement activity.

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Who Can Sue Under the Antitrust Laws? Antitrust Injury Under Brunswick Corp. v. Pueblo Bowl-O-Mat

May 24, 2021

The 1977 Supreme Court case Brunswick Corp. v. Pueblo Bowl-O-Mat set an important precedent about who can or cannot be a plaintiff in an antitrust suit.

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(Un)Civil War: The Future of Conservative Antitrust

May 11, 2021

Professors Joshua D. Wright and John Yun discuss the future of the conservative approach to antitrust law.

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Big Tech and Antitrust

April 27, 2021

The Federalist Society’s Chicago Lawyers Chapter hosted a panel of antitrust experts to discuss the current debates over antitrust and Big Tech.

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Is Common Carrier the Solution to Social-Media Censorship?

February 12, 2021

Experts debate the relevant legal contours and the desirability of a common carrier solution to curbing Big Tech power.

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Apple v. Pepper: When Can a Private Individual Sue for an Antitrust Violation?

January 8, 2021

In Apple v. Pepper, the Supreme Court considered whether consumers could directly sue Apple for a surcharge on apps in the iPhone App Store.

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Fireside Chat with FTC Commissioner Noah Phillips: The House Judiciary Antitrust Staff Report

November 23, 2020

The Regulatory Transparency Project hosted a virtual fireside chat with FTC Commissioner Noah Phillips on the House Judiciary Antitrust Staff Report and its potential ramifications.

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When Does Refusal to Deal Violate Antitrust Law?

November 17, 2020

In 2004, the Supreme Court decided Verizon Communications v. Law Offices of Curtis V. Trinko. The case examined what types of monopolistic activities would violate antitrust laws. The Court addressed issues involving forced sharing, the risks and rewards of competition in a free market, and the role of governing regulations. The Trinko decision raises important questions and provides insightful consideration for examining antitrust issues.

Jan Rybnicek is Counsel at Freshfields Bruckhaus Deringer.

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United States v. Google: Examining the Historic Antitrust Case Against Big Tech

November 6, 2020

On October 30, 2020, the Federalist Society’s Corporations, Securities & Antitrust Practice Group and the Regulatory Transparency Project cosponsored a virtual panel on “United States v. Google: Examining the Historic Antitrust Case Against Big Tech.”

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Antitrust Populism and the Conservative Movement

October 14, 2020

On October 7, 2020, the Federalist Society’s Pennsylvania Student Chapter, the Penn Law Journal of Law and Innovation, and the Regulatory Transparency Project co-sponsored an event on “Antitrust Populism and the Conservative Movement.”

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FTC Rulemaking: Underutilized Tool or National Nanny Renewed?

July 13, 2020

This expert panel examined recent calls for the Federal Trade Commission (FTC) to engage in substantive rulemaking under the competition and consumer-protection prongs of Section 5 of the FTC Act. How far does FTC statutory authority under 6(g) extend? Is rulemaking appropriate as a matter of policy? How has FTC rulemaking fared in the past and what guideposts should apply?

FTC Commissioner Noah Phillips gave honorary introductory remarks.

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FTC Hot Topics with Commissioner Christine Wilson: Regulatory Reform, Privacy, Antitrust, & Beyond

May 21, 2020

On May 18, the Regulatory Transparency Project hosted a virtual fireside chat discussion on the Federal Trade Commission’s regulatory reform efforts, federal privacy legislation, and the future of antitrust law.

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Antitrust & Big Tech

June 11, 2019

A conversation about the history of antitrust law, the consumer welfare standard, and the tech giants.

Facebook, Amazon, Apple, Netflix, and Google provide extremely valuable products and services, but their size, market share, and other concerns such as user privacy have led to concerns that they are wielding too much power.

Proponents of “populist” or “hipster” antitrust advocate for limiting the size of firms. This would require changing the Consumer Welfare Standard, which has been in place since the 1970’s.

Mark Zuckerburg’s testimony before Congress in April 2018 ignited a public debate about whether and how tech companies should be regulated. That debate continues and shows no signs of resolution.

Is it time to revisit the standards used in antitrust law? Our experts explore.

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Pepperdine Law Review’s 2019 Symposium: Populist Antitrust

March 21, 2019

Today’s regulatory landscape presents challenges for public and private entities. Private actors are often faced with conflicting, ambiguous, or altogether absent regulatory frameworks. Is it possible for them to overcome these challenges while delivering the creativity and innovation the marketplace demands? How can government regulators and legislators avoid stifling opportunity, function more efficiently, and enact and enforce sensible and effective regulatory schemes?

Pepperdine Law Review’s 2019 Symposium, in partnership with the Regulatory Transparency Project, explored these vital questions from both the academic and practical perspectives. The second panel of the symposium focused on the current debate over the future of antitrust enforcement.

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Reboot 2018: “What Has Big Tech Ever Done for Us?“ Towards a 21st Century Competition Policy

October 24, 2018

Increasing skepticism about the influence and power of big tech companies has given rise to expanded calls for government to break up, punish or regulate the tech industry. We’ll bring together experts on all sides to debate the impact of big tech on society, and whether we need to rethink competition policy for the modern era. Moderated three-way debate.

The Regulatory Transparency Project co-sponsored the Lincoln Network’s Reboot 2018 conference.

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Occupational Licensing, Antitrust, and Innovation

August 14, 2017

Every state has laws or regulations that require individuals seeking to offer a certain service to the public first to obtain approval from the state before they may operate in the state. Recent years have seen a significant proliferation of such laws, with less than 5% of jobs in the American economy requiring a license in the 1950’s to between 25-30% today. Although licensing in some occupations may benefit the public by reducing information asymmetry and/or ensuring a minimum quality level for a particular service, the significant growth in the number of occupations governed by some form of licensing requirements poses a potential threat to competition and consumer welfare. Our panel of experts discussed these important issues.

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An Interview with Makan Delrahim, Former Assistant Attorney General for the Department of Justice Antitrust Division

Makan Delrahim and Svetlana Gans

March 22, 2021

Svetlana S. Gans interviews Makan Delrahim, former Assistant Attorney General for the Department of Justice Antitrust Division.

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Statements to House Judiciary on Antitrust Reform

June 16, 2020

Several members of the Regulatory Transparency Project’s antitrust working group were invited to submit statements on competition issues in digital markets to the House Antitrust Subcommittee.

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Commentary on Credit Card Interest Rate Caps Legislation

November 5, 2019

Federalist Society expert Prof. Todd Zywicki has written several articles on the recent legislative momentum to cap credit card interest rates. His arguments explore a breadth of financial regulatory history and offers warnings for unexpected outcomes for consumers.

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Deputy Assistant Attorney General Roger Alford on Antitrust Regulation and Enforcement

May 24, 2019

Deputy Assistant Attorney General for International Affairs Roger Alford delivered the keynote address in March at the Pepperdine Law Review‘s Symposium.

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A Bargaining Model v. Reality in FTC v. Qualcomm: A Reply to Kattan & Muris

Douglas Ginsburg and Joshua D. Wright

May 15, 2019

In a recent article Joe Kattan and Tim Muris (K&M) criticize our article on the predictive power of bargaining models in antitrust, in which we used two recent applications to explore implications for uses of bargaining models in courts and antitrust agencies moving forward. Like other theoretical models used to predict competitive effects, complex bargaining models require courts and agencies rigorously to test their predictions against data from the real world markets and institutions to which they are being applied. Where the “real-world evidence,” as Judge Leon described such data in AT&T/Time Warner, is inconsistent with the predictions of a complex bargaining model, then the tribunal should reject the model rather than reality.

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An Evidentiary Cornerstone of the FTC’s Antitrust Case Against Qualcomm May Have Rested on Manipulated Data

Geoffrey Manne

May 13, 2019

The abbreviated trial in the FTC’s case against Qualcomm saw the presentation by Qualcomm of some damning evidence that, if accurate, seriously calls into (further) question the merits of the FTC’s case.

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Antitrust is Hot Again – A Conversation on Populist, Hipster, and More Antitrust Policy Monikers

William Rinehart

May 3, 2019

In March, the Pepperdine Law Review cohosted a symposium with the Regulatory Transparency Project on “Regulating Tech: Present Challenges and Possible Solutions”. Babette Bullock, Chief Economist for the FCC, began her panel by observing that antitrust is a hot topic again, appearing under several names such as populist, hipster, or EU style antitrust policy. Will Rinehart started his remarks with an accessible overview of the subject, and we have transcribed his comments to share them with you.

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FTC v. Qualcomm: Innovation and Competition

Geoffrey A. Manne

January 22, 2019

This complex case is about an overreaching federal agency seeking to set prices and dictate the business model of one of the world’s most innovative technology companies.

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The Taiwan Fair Trade Commission’s Problematic Qualcomm Decision Highlights the Urgent Need for U.S. Leadership in International Antitrust

Joshua D. Wright

December 13, 2017

The TFTC’s Qualcomm decision clearly demonstrates the urgent need for further steps and continued leadership from American antitrust agencies.

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Occupational Licensing, Antitrust, and Innovation Panel

Patience Roggensack and Lisa Kimmel

August 8, 2017

While professional licensing can have an important role to play in protecting consumers, the proliferation of state occupational licensing regulations over the past fifty years raises important competition policy concerns.

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Occupational Licensing and the American Dream

James C. Cooper, Koren Wong-Ervin, and Joshua D. Wright

July 13, 2017

More than a quarter of the American labor force requires a state license to work, a five-fold increase since the 1950s. Occupational licensing imposes restrictions on competition in every reach of the modern economy — with pernicious effects.

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