If Only Portraits Could Talk

April 30, 2024

In a recent talk at Yale Law School, Federal Trade Commission Chair Lina Khan noted: “I see the portrait of Robert Bork is still up there.” Note the word “still.” After that observation began an exchange with faculty and students that showed that in the minds of many Yale law scholars, Robert Bork is no longer there at all.

This happened after Khan was asked about the blending of consumer protection versus protection of competition. The question revolved around FTC’s lawsuit against Amazon, which strikes at both priorities.

Chair Khan replied: “Embedded in the agency’s DNA is actually a much more integrated approach to competition and consumer protection. So when the FTC was created, we only had unfair methods of competition authority. And the way we ended up actually going after deception and fraud was by saying that fraud was an unfair method of competition because it injured honest businesses. So it was an interesting way to be using competition authority to go after what ultimately later became consumer protection problems.”

It is clear thinking like this that led to FTC’s Amazon antitrust suit, which alleges that the company harms consumers, restricting choices and raising prices, by offering to match the discounts of its retail rivals. Cue Jeff Foxworthy’s voice: If you can make sense out of that, you might be a progressive. That is all in keeping with the Law & Political Economy Project, which hosted the talk at Yale Law School, dedicated in its own words to fighting “settler colonialism,” “imperialism,” and advancing Critical Legal Studies, as well as other neo-Marxist, “all law is politics” claptrap.

Khan then went on to bemoan the FTC’s bureau of competition and bureau of consumer protection, which she said are “sometimes … quite siloed.” Now, Khan says, she is making sure that “we have practices in place so that if the same company is in fact being investigated on both sides of the house, how can we make sure we’re doing that investigation in a more integrated way.”

Her interlocutor, Yale Law Professor Amy Kapczynski, and co-director of the LPE Project, said of Yale Law School: “I don’t think consumer protection’s taught very much and antitrust is taught a lot.” We should believe her.

If anyone had bothered to consult the painting on the wall, my late father might have replied that there is, in fact, a neat way to integrate antitrust with consumer protection. It is called the Consumer Welfare Standard, which protects consumers – and not just on price, but also on innovation and choice. By the lights of this standard, the illogic of the Amazon case becomes apparent immediately, while the antitrust bureau at FTC would be automatically in coordination with the rest of the agency to advance the interests of consumers.

The intellectual confusion here is born not just of a rejection of the Consumer Welfare Standard, but also out of the need to give government the power to go after almost any business for any reason. A more modest goal would not subject the commanding heights of the economy to lawyers who have never met a payroll. Allow me to quote the painting that is still on the wall – “business units should prosper or decline, live or die, according to their abilities to meet the desires of consumers.”