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Europe’s Latest Antitrust Fine Treads on U.S. Economy, Sovereignty – By Asheesh Agarwal
[Note: This post originally appeared at DC Journal on Oct. 13, 2025.] The European Union is taking upon itself the authority to restructure the U.S. economy. In its latest move, the EU imposed a staggering $3.45 billion fine on Google for alleged antitrust violations and signaled that “only the divestment” of Google’s components would resolve…
How the White House’s AI Action Plan Could End Antitrust Overreach – By Asheesh Agarwal
[This post originally appeared at Truth on the Market on Oct. 8, 2025.] The AI Action Plan unveiled in July by President Donald Trump could mark a turning point for U.S. antitrust policy. By directing the Federal Trade Commission (FTC) to prioritize innovation, the plan offers a historic opportunity to lift onerous regulatory burdens, restore measured…
The Hidden Costs of Untimely Antitrust Enforcement – By Asheesh Agarwal
[This post originally appeared at Real Clear Markets on April 28, 2025.] Businesses need legal and regulatory certainty to invest and innovate. Across the economy, legal predictability allows companies to allocate risk, to invest resources for the long term, and, with luck, one day to reap the rewards of successful new products. Unfortunately, an ongoing…
From A to Y: Antitrust Notes from the ABA and Y Combinator – By Asheesh Agarwal
[Note: This post originally appeared at Truth on the Market on April 15, 2025] April 4 marked the end of a notable week in global competition policy. The American Bar Association’s (ABA) Antitrust Section held its annual spring meeting, while Y Combinator hosted a virtual “Little Tech Competition Summit.” At the same time, Congress held…
How the Trump Administration’s Antitrust Agenda Can Tackle Some of America’s Biggest Problems – By Asheesh Agarwal
[This post originally appeared in The Federalist on April 8, 2025.] In its first months, the Trump administration’s competition policy is off to a fast start. Its antitrust enforcers have disavowed expansive rulemakings and prioritized growth to reduce the national debt. As it settles, the administration should continue to target the nation’s most critical concerns, including regulatory…
Basketball and the Rule of Law – By Asheesh Agarwal
[Note: This post originally appeared at Law & Liberty on March 14, 2025] In sports, as in life, it often does pay to break the rules. In baseball, the Houston *stros improperly used electronics to steal signs, won the World Series, and received little more than a gentle pat on the wrist. In football, Bill Belichick, the…
As AI Advances, U.S. Must Choose the Path of Regulation or Innovation – By Asheesh Agarwal
[Note: This post was originally published by the American Edge Project on March 7, 2025] As the rise of powerful Chinese AI models, such as DeepSeek’s r1and Alibaba’s Qwen 2.5, have laid bare, U.S. policymakers must choose a pathway for artificial intelligence (AI). One path, littered with regulations and roadblocks, treats AI as a threat…
FTC Alumni Response to FTC/DOJ RFI on Serial Acquisitions
Posted by Theodore A. Gebhard* On May 23, 2024, the Department of Justice and the Federal Trade Commission announced that they were jointly launching an inquiry into the potential competitive effects of serial acquisitions and roll-up strategies. The inquiry will assess the potential antitrust liability arising from such acquisitions. The Agencies’ public announcement defines serial acquisitions and…
FTC Alumni Comments on Proposed Hart-Scott-Rodino Form
Posted by Theodore A. Gebhard The Biden Federal Trade Commission has proposed revisions to the Hart-Scott-Rodino reporting form required of all parties proposing to merge and/or proposing to acquire the assets of another company, whenever certain threshold metrics are present. In response to this proposal a number of former FTC officials, of which I am…
Our New Space Race – Review by Asheesh Agarwal
[Note: This post originally appeared at Law & Liberty on June 29, 2023] The current space race extends far beyond Elon Musk, Jeff Bezos, and Richard Branson. There’s a New Zealand tinkerer without a college degree who built a billion-dollar rocket company. A Ukrainian multimillionaire who made his fortune off sketchy dating websites. A soothsaying IT executive who attracted millions…
FTC Alumni Comments on the Confidentiality of the Agency’s Investigations
Posted by Theodore A. Gebhard* The link below is to a letter written this month by former FTC officials expressing concern about possible lapses in the Agency’s integrity and fairness in keeping business information confidential during investigations. In several instances, FTC personnel may have leaked confidential information, or their analyses of confidential information, to the…
FTC Alumni Comments on the Commission’s Proposed Non-Compete Clause Rule
Posted by Theodore A. Gebhard* The Federal Trade Commission has begun a rulemaking process with a stated goal of promulgating and implementing a Non-Compete Clause Rule that would prohibit employers from contractually conditioning hiring on an agreement that the employee will not render his or her services to a competing employer, should there come a…
Big Questions About Tech Regulation – By Asheesh Agarwal
[Note: This post originally appeared at Law & Liberty on Jan. 4, 2023] What balance ought we seek in corralling the worst of tech companies while not killing innovation? At a time when everyone has a beef with tech, this question has never been more important. Republicans want tech to allow more speech, Democrats want tech…
The FTC’s Recent Moves Could Cost It in the Supreme Court – By Asheesh Agarwal
[Note: This post originally appeared at the Yale Journal on Regulation on Oct. 23, 2022] The Federal Trade Commission appears on a collision course with the Supreme Court. Even as the Court reins in the discretion of independent agencies to increase their accountability to the President and Congress, the FTC is charging ahead with new rules…
FTC Alumni Open Letter to the Commission
Posted by Theodore A. Gebhard* The Biden Federal Trade Commission, led by Chairwoman Lina Khan, has taken an unusually expansive position on the scope of the antitrust laws and the Commission’s powers under Section 5 of the FTC Act. The link below is to an open letter written by former FTC officials, of which I…
Request for Investigation of the FTC’s Practice of Counting “Zombie Votes”
Posted by Theodore A. Gebhard* Nearly one month ago, the publication, Politico, reported that the Federal Trade Commission held on to “as many as 20 votes that former Democratic Commissioner Rohit Chopra cast by email on Oct. 8—his last day at the agency—that remain active even after his departure.” The link below is to a letter…
Antitrust Scholars and Former Federal Antitrust Enforcers’ Letter to the FTC Expressing Concerns about Altering Enforcement Principles
Posted by Theodore A. Gebhard* The Biden Federal Trade Commission has proposed modifying, or even possibly rescinding, its Statement of Enforcement Principles On Unfair Methods of Competition under Section 5 of the FTC Act. The link below is to a letter prepared by a number of antitrust scholars and former federal antitrust enforcers commenting on…
A Prairie Populist Rises Again – Review by Asheesh Agarwal
[Note: This book review originally appeared at Law & Liberty on June 23, 2021] In her new book, Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age, Senator Amy Klobuchar leaves no doubt as to who are the heroes and who the villains in America’s economic history. The heroes are hard-working Americans,…
Positive Legislative Antitrust Agenda for Congress and the New Biden Administration
Posted by Theodore A. Gebhard* The link below is to a letter prepared by a coalition of former federal antitrust enforcers and antitrust scholars, which was sent to the members of the Senate and House Committees that have jurisdiction over the Department of Justice’s and Federal Trade Commission’s antitrust missions. The letter sets out a Positive…
The New Google Suits – By Asheesh Agarwal
[Note: This post originally appeared at Law & Liberty on Jan. 13, 2021] Just before the holidays, 44 states filed two separate lawsuits alleging that Google violated the Sherman Act and 16 separate state statutes. The lawsuits, totaling 245 pages, seek to dismember the company and force it to pay perhaps hundreds of billions of…
Google Gets the Scalpel, Not the Sledgehammer – By Asheesh Agarwal
[Note: This post originally appeared at Law & Liberty on Nov. 9, 2020.] Perhaps Attorney General Bill Barr has been re-reading his history. A few weeks ago, the Department of Justice filed its long-awaited antitrust lawsuit against Google. The lawsuit approaches Google with a scalpel, rather than a sledgehammer, and at most may result in…
Supreme Court Rules in Tennessee Wine & Spirits Retailers Assn. v Thomas [previously, Blair]
Posted by Theodore A. Gebhard* Today the U.S. Supreme Court handed down its decision in Tennessee Wine and Spirits Retailers Association v. Thomas, Executive Director of the Tennessee Alcohol Beverage Commission et al., 588 U.S. 504-57 (June 26, 2019). In an earlier post on this site, I discussed this case in the context of the…
Law & Economics Scholars’ brief in the case of Tennessee Wine & Spirits Retailers Assn. v. Blair et al.
Posted by Theodore A. Gebhard* In a case pitting Sec. 2 of the 21st Amendment against the Dormant Commerce Clause for which the U.S. Supreme Court has granted certiorari, I along with four others acting as amici curiae, filed an amicus brief (Brief for Law & Economics Scholars) on Dec. 20. The case involves the constitutionality…
Using Stereotypes in Decision Making – By Stefan N. Hoffer
A stereotype has been defined as a “fixed general image or set of characteristics that a lot of people believe represent a particular type of person or thing.” https://www.collinsdictionary.com/english/stereotype Or, as “something conforming to a fixed or general pattern; especially : a standardized mental picture that is held in common by members of a group…
Innovators and Regulators Meet to Discuss Blockchain in DC – By Cynthia M. Gayton, Esq.
On August 2, 2016, I volunteered to help register attendees at a blockchain conference in Washington, DC sponsored in part by Fintech Worldwide, Ltd. I was looking forward to learning about engaging blockchain product solutions, but this being a DC conference, there were only a few commercial and non-profit business early adopters sprinkled among the lawyers…
The Enduring Legacy of Henry Manne: A Review of the 2016 Law & Economics Center Conference – By Theodore A. Gebhard
On Friday, January 22, I attended the Fifth Annual Henry G. Manne Law & Economics Conference, which was sponsored by the Law & Economics Center at George Mason University. The Conference was held in conjunction with the Twelfth Annual Symposium of the Journal of Law, Economics, & Policy, a publication of the GMU School of…
Revenue Generation from Law Enforcement—Unintended Consequences? – By Stefan N. Hoffer
Should law enforcement be conducted with an objective of maximizing public revenues? Should police departments be allowed to retain revenues they generate through fines and forfeitures? An argument might be advanced that pursuing an objective of revenue generation will encourage law enforcement to enforce the law more effectively, particularly if revenues generated are returned to…
Kelo v. City of New London after Ten Years — Book Review, by Joel C. Mandelman
The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain by Ilya Somin, University of Chicago Press – 2015 In his book, The Grasping Hand: New London and the Limits of Eminent Domain, Ilya Somin, a law professor at George Mason University Law School, traces the history of eminent domain…
Even in a Knowledge-Driven Economy — Things Are Still Kings – By Cynthia M. Gayton, Esq.
From September 30 – October 1 of this year, I attended a conference entitled “The IP Platform: Supporting Inspiration and Innovation” that was sponsored by George Mason University School of Law’s Center for the Protection of Intellectual Property. The extensive and impressive speaker’s list included a keynote speech by David Kappos, law professors from around…
What Does King v. Burwell Have to Do with the Antitrust Rule of Reason? A Lot – By Theodore A. Gebhard
The first Justice John Marshall Harlan is probably best remembered for being the sole dissenter in Plessy v. Ferguson, the notorious 1896 Supreme Court decision that found Louisiana’s policy of “separate but equal” accommodations for blacks and whites to satisfy the equal protection requirements of the 14th Amendment. Harlan, a strict textualist, saw no color…
Forecasting Trends in Highly Complex Systems: A Case for Humility – By Theodore A. Gebhard
One can readily cite examples of gross inaccuracies in government macroeconomic forecasting. Some of these inaccurate forecasts have been critical to policy formation that ultimately produced unintended and undesirable results. (See, e.g., Professor Edward Lazear, “Government Forecasters Might as Well Use a Ouija Board,” Wall Street Journal, Oct. 16, 2014) Likewise, the accuracy of forecasts…
Is Economics a Science? – By Theodore A. Gebhard
The great 20th Century philosopher of science, Karl Popper, famously defined a scientific question as one that can be framed as a falsifiable hypothesis. Economics cannot satisfy that criterion. No matter the mathematical rigor and internal logic of any theoretical proposition in economics, empirically testing it by means of econometrics necessarily requires that the regression equations contain stochastic elements…
Economics and Transparency in Antitrust Policy – By Theodore A. Gebhard
A significant turning point in antitrust thinking began in the mid-1970s with the formal integration of microeconomic analysis into both antitrust policy and antitrust litigation. At that time, the Department of Justice and the Federal Trade Commission dramatically expanded their in-house economics staffs and ever since have increasingly relied on those staffs for strategic advice…
The FTC’s Supreme Court Victory in N.C. Dental: A Rare Win for Both Libertarians and Regulators – By Theodore A. Gebhard
[Originally posted at Gayton Law Blog, April 1, 2015] The Federal Trade Commission’s (FTC) recent Supreme Court victory in the North Carolina State Board of Dental Examiners (NCSB or Board) case brought together in common cause both economic libertarians and federal antitrust regulators — groups often at odds with each other respecting important philosophical and…
Amazon: Bully or Not? – By Theodore A. Gebhard
[Originally posted at Gayton Law Blog, August 26, 2014] Several articles in the business press during recent months have reported on a dispute between book publisher, Hachette, and book distributor, Amazon. The dispute centers on the pricing of e-books. Amazon wants a larger slice of the profits on e-book sales, and to obtain that larger…
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