Our President, Robert H. Bork, Jr., provides a warning on why the Senate needs to block the confirmation of Lina Khan as the head of the Federal Trade Commission (FTC) in Real Clear Markets.
AEP PResident robert h. bork, jr. joins washington legal foundation to discuss the antitrust paradox
AEP President, Robert H. Bork, Jr., joined Washington Legal Foundation in a discussion on "Antitrust Paradox" Redux: A Market Competition Policy Back at War with Itself. Watch in the link below.
Our President, Robert H. Bork, Jr., writes in the National Review on how republicans should be wary of the massive expansion of government that increasingly popular anti-monopoly sentiments would entail.
WATCH: The Antitrust Paradox Book Forum Featuring Robert H. Bork, Jr., HOSTED BY Competitive Enterprise Institute
Robert H. Bork, Jr., discusses his father’s seminal work – The Antitrust Paradox – with CEI’s Jessica Melugin and Iain Murray, as well as Section 230, Judge Bork’s distinction between vertical and horizontal mergers, and the “piling on” by state AGs against targeted companies like Google and Facebook.
Learn more and order your copy of The Antitrust Paradox here.
The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr. hosted by The Federalist Society
On April 21, 2021, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a teleforum titled "The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr." Judge Robert H. Bork's famous work, The Antitrust Paradox, has been republished so that the new generation of general practitioners and antitrust thinkers alike can bring his work to bear on their own. Senator Mike Lee, who wrote the republished edition's foreword, and Robert Bork, Jr., discussed the book, the present state of antitrust issues, and more.
"The Left has long wanted to destroy the prevailing "consumer welfare standard," a concept promulgated by conservative Judge Robert Bork that has now undergirded antitrust law for over four decades. The consumer welfare standard is simple. When evaluating alleged anti-competitive conduct, judges and regulators must look to whether the business practices in question have harmed consumers. Consumer harm is measured through tangible effects, such as higher prices or reduced product quality. The standard is designed to protect the competitive process, not individual firms in a marketplace from being beaten by rivals.
This focused, economically grounded approach to antitrust enforcement has been the rule for four decades. The consumer welfare standard has produced a more reliable, consistent approach to antitrust enforcement than in the abusive past. It has fostered innovation and economic activity."
- Grover Norquist, president of Americans for Tax Reform, on The Washington Examiner.
Regulators and jurists alike have come to accept – for decades now – that vertical mergers are not harmful to competition or consumers. Except for a quixotic Trump- era lash-out at AT&T’s acquisition of Time-Warner, regulators have accepted vertical mergers as beneficial to productive efficiency, thus good for consumers.
Another sign that antitrust under President Biden is about to undergo a sea change, the Federal Trade Commission filed suit to stop Illumina from acquiring Grail, which developed an early stage cancer detection test. The reason? The FTC alleges the acquisition could raise prices and deny access to competitors.
The ability of the FTC to foresee such competitive harms is worthy of a Delphic Oracle. At least the priestesses did their swooning and made their predictions under the influence of an intoxicating gas.
In this era of antitrust overdrive, what strategies can overcome overzealous regulators and unsympathetic judges?
Many of the elements in Qualcomm’s victory over a Federal Trade Commission lawsuit are peculiar to that Gordian knot of a case. But there are some takeaways from Qualcomm’s experience that any business can adapt.
Qualcomm General Counsel Donald J. Rosenberg highlighted some of these elements in a recent Law 360 interview. Here are some of the takeaways we see from that interview:
All of this may seem basic, but many have stumbled past the basics on their way to stumbling in court. As the U.S. Senate debates radical changes to antitrust law from both the left and the right, every corporation will need the kind of focus and discipline Qualcomm showed.
This morning, several Republican senators in the Senate Commerce Committee hearing sounded sympathetic to Lina Khan’s nomination to serve on the Federal Trade Commission. Many on the right are so cheesed off at “woke” corporations that they seem ready to sign on to a radically progressive take on antitrust law.
Kudos then to Jeffrey Westling, a fellow at R Street, who nails it in an incisive article explaining exactly what is wrong with Sen. Hawley’s, “The Trust Busting for the 21st Century Act.”
This bill would amend the Sherman Act to exclude the need for defining a given market in specific circumstances, force defendants to show that commercially reasonable alternatives didn’t exist for anti-competitive conduct, and eliminate the Consumer Welfare Standard in favor of protecting economic competitors.
Westling takes care to delineate the careful way the law is currently used by courts to examine a firm’s conduct and the market it serves to determine if an anti-competitive harm has occurred.
The money quote:
The proposal would arbitrarily change the standard from focusing on consumer welfare to protecting economic competition, a rebranding that carries little legal benefit and serves purely political and rhetorical ends. Current jurisprudence already carefully examines whether competition is harmed. As the U.S. Supreme Court has explained, the “law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. It does so not out of solicitude for private concerns but out of concern for the public interest.”
So far, this is too much for even conservative senators who would use antitrust law to bludgeon companies they don’t like. As emotions boil over, it will take cool intellects to stop the momentum of a left-right coalition that wants to create a nebulous standard that would allow government to control business.
In this morning’s hearing, Sen. Mike Lee said that the elements are “already in place” in current antitrust law to protect the public. All that’s needed, he said, is to apply “the right facts, evidence and cases” under the Consumer Welfare Standard. Let us hope Republicans listen to Mike Lee instead of the siren call of Josh Hawley’s progressive approach.
Is Sen. Josh Hawley’s extreme lurch to the left the first sign that the Republican Party is returning to the progressive populism of Teddy Roosevelt in his Bull Moose incarnation? Or is Hawley just a fist-bumping outlier?
What would the senator from Missouri do?
This is not a recipe for more competition. It is a recipe for the fossilization of American capitalism.
This is a neo-Brandesian move that Lina Khan and Elizabeth Warren would applaud (if they weren’t afraid of the cooties that come for progressives mentioned in the same breath as Josh Hawley). The senator’s legislation jettisons the Consumer Welfare Standard that has anchored antitrust law for almost a half century, and returns us back to the subjectivism of past jurisprudence.
Taken together, this is a sweeping assumption of government power that would be perfectly in sync with the socialist direction of AOC and the ultra-progressive dreams of the Biden Administration. Is Hawley a harbinger of things to come? Or is he fist-bumping his way to irrelevance?
Whatever the answer, his “Trust-Busting for the Twenty-First Century Act” shows the extent to which many so-called conservatives in Congress have lost touch with conservative thought. To paraphrase Jeff Foxworthy, if your solution to big, powerful companies is even bigger and more powerful government, you just might be a progressive.