Competition/Antitrust
From Broad Goals to Antitrust Legislative Standards
The purposes of antitrust law can be broad; the mechanism of antitrust is legal. This is the core of Brandeis’s approach—to find enforceable legal standards that identify harmful industrial conduct in a manner that vindicates social and democratic values through the careful delineation of institutional roles. That job was made easier because Louis Brandeis subscribed to the view that these social and democratic values were all threatened by monopoly; thus by focusing on the practicalities of competition, antitrust statutes could advance broader societal interests as well.
Antitrust Alone Won’t Save Us From the “Curse of Bigness”
We have tried to rein in the power of telecommunications, media and cable giants for more than 30 years. In these important industries, strong antitrust has only worked when paired with equally strong pro-competition market-opening regulations. Antitrust alone cannot expand the diversity of media and content ownership that relies upon internet distribution. Antitrust alone cannot protect the integrity of individual speech rights that are essential to democratic discourse. And antitrust alone cannot foster innovation and entrepreneurship.
In recent years, and especially within the last few months, a “perfect storm” of developments are producing new tensions and new debates in the field of antitrust that to date have failed to produce anything approaching a consensus about the best path forward for this crucial policy sector. We will explore salient antitrust policy issues that will be front-and-center as we head into the next year. |
The Goals of Antitrust: The Legislative Perspective
For Louis Brandeis, antitrust would serve both social and economic goals. He saw complete harmony in critiquing the economic justification for corporate power, on terms familiar to modern antitrust analysis, while pressing the larger case for democracy and industrial liberty. Legislatures can, and should, take an expansive view. As a starting point, Brandeis believed that values other than economics would be served by the protection of competition through antitrust, chief among them the preservation of democracy and individual initiative. This was not a subtle view.
Competitive Edge: Protecting the “competitive process”—the evolution of antitrust enforcement in the United States
The Federal Trade Commission is tackling a central question of competition: Are the goals of antitrust enforcement in the United States best pursued by applying what’s known as the consumer welfare standard? But what does it mean just to safeguard “consumer” welfare?
Tuesday, November 13, 2018
9:00-9:15 am |
Welcome and Introductory RemarksAndrew I. Gavil TBA |
9:15-9:45 am |
Delrahim Rejects Need for Antitrust Overhaul
Assistant Attorney General for Antitrust Makan Delrahim shot down the idea that new antitrust laws are necessary to address large tech companies, telling an audience of industry leaders that existing rules are ”perfectly equipped, at least for now.” Critics argue that tech companies have amassed significant market power through their vast networks of users and pools of data, but that their dominance is overlooked because their services are free or inexpensive. Delrahim contends, however, that price isn’t the only way government officials can measure how firms affect consumers.
Republicans Seek FCC Briefing on USTelecom Petition
House Commerce Committee Chairman Greg Walden (R-OR) and Telecommunications Subcommittee Chairman Marsha Blackburn (R-TN) want more information from the Federal Communications Commission on a petition from USTelecom seeking regulatory relief from some unbundling requirements, as well as details on the agency’s recent Connect America Fund broadband subsidy auction.
Brandeis’s Framework for Antitrust and Competition
Brandeis’s view of progressive governance meant that the government could improve itself and the lot of its people. The Brandeisian approach to competition has five parts; together they comprise the framework for progressive governance in the field of competition. 1. Antitrust and Social Issues. 2. Translating Social Issues Statutory Commands. 3. The Institutional Approach. 4. The Role of Competition. 5. The Spirit of Experimentation. Louis Brandeis viewed America itself as an experiment.
We Must Let Our Minds Be Bold
With publication of Louis Brandeis: A Man for This Season by the Colorado Technology Law Journal, Jon Sallet and the Benton Foundation are offering this new series adapted from that article to demonstrate that progressive competition policy incorporated both the goals and the means that Brandeis believed would provide the strongest tools to fight against the trusts and the monopolies of his day.