This presentation by Spencer Weber Waller (Justice John Paul Stevens Chair in Competition Law and Professor, Loyola University Chicago School of Law) was made during the discussion “The Goals of Competition Policy” held at the 21st meeting of the OECD Global Forum on Competition on 1 December 2022. The session webcast as well as more papers and presentations on the topic can be found out at https://oe.cd/gcp. This presentation was uploaded with the author’s consent.

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Lasting Change in
Competition Law
& Policy
S p e n c e r W e b e r W a l l e r
J o h n P a u l S t e v e n s C h a i r i n C o m p e t i t i o n L a w
L o y o l a U n i v e r s i t y C h i c a g o S c h o o l o f L a w

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Necessary Disclaimer
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• Although serving as an unpaid consultant
to the U.S. Federal Trade Commission for
2022
• Participating in the Global Competition
Forum solely in my “Loyola Hat” in my
private capacity as a legal academic and
a faculty member at Loyola University
Chicago School of Law
• Nothing I say represents the views of the
U.S. FTC, any of its commissioners, or
staff and only draws upon non-confidential
information in the public domain

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Time of Passionate Debate of
Fundamental Goals on Antitrust
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• Total Welfare
• Consumer Welfare
• Consumer Welfare +
• Competitive Process
• Fairness
• Address Inequality and Development Needs
• Promote and Protect Democracy
• Support Climate Change

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Jurisdictions express a multiplicity of preferences in
different ways that change over time
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• Relatively rare that objectives of
competition law spelled out explicitly in
constitutions or treaties
• Similarly rare where objectives of
competition law set forth explicitly in
legislation or implementing regulations
• Where spelled out multiple and
sometime conflicting goals identified
• See ICN, Report on the Objectives of
Unilateral Conduct Laws (2007)
• Identified Goals Also change over time
• Consider some of the contemporary
debates about if/how competition law and
policy can address such diverse issues
as:
• Sustainability
• Democracy
• Digitalization
• Inflation
• Income inequality
• Labor
• Fairness

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To Paraphrase Justice Oliver Wendell Holmes
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• Deep-seated
preferences cannot
be argued about-
you cannot argue a
person into liking a
glass of beer
• (or a particular goal
of antitrust)

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Current Debate about the Goals of Antitrust is Important but
Only Half the Story
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• Reasonable people can differ over goals
of competition law and policy
• Debates over consumer welfare,
competitive process, fairness, democracy,
are not going away
• There is a progressive turn in the United
States at the moment
• Regardless of nature and direction of
change equally important question is how
to achieve lasting change
• I focus on how to achieve that lasting
change regardless of the goals each
jurisdiction seeks to adopt

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Most Traditional Tools Outside Direct Control of Enforcement
Agencies
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Much Depends on Wise Use of Traditional Tools by the
Enforcement Agencies
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• Use All Statutory Tools
• Strive for Unified Holistic Approach
• Coordination with Consumer Protection
• Coordination with other Departments/Ministries
• Sectoral Regulators
• Sub-federal governmental units
• Engage the Public
• Engage Internationally

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Use Full Arsenal of Statutory Tools
to Create the Change You Seek
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• Criminal
• Civil
• Robust Investigatory Powers Beyond
Leniency
• Consent Decrees
• Advisory Opinions
• Policy Statements
• Guidelines
• Rulemaking, Regulations, Directives, &
Block Exemptions
• Market Studies & Market Inquiries
• Competition Advisory
• Support Sub Federal & Private
Enforcement
• Amicus Briefs

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Competition as a Core Principle and Basis for Unified Policy
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• Example of Biden Administration Executive Order
• Competition Council including Exec Branch Agencies & Independent
Regulatory Agencies
• Partnerships rather than Competition Advocacy
• MOUs
• Accountability
• Measurable Outcomes
• Possibility of Embedded Competition Officers
• Higher Level of Press and Public Attention

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Combining Approaches to Competition & Consumer
Protection
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• Combine Theories When Possible
• Consider Remedy Driven Enforcement
• Ride Sharing Abuses
• Restrictions on Professional Advertising
• Right of Repair
• Hearing Aids
• Protecting Farmers
• Non-Competes
• Data Privacy

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Engage Civil Society
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• Hearings & Workshops
• Speeches
• Universities
• Think Tanks
• Traditional Media
• Social Media
• Innovative Outreach
• The Importance of a General Audience
• Pop Culture and Antitrust

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Focus on What Matters
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• Necessities: Food, Fuel, Transportation, Construction
• See Gregory Day, The Necessity in Antitrust Law, 78 Wash. & Lee
L. Rev. 1289 (2022)
• Deemphasize Yacht Broker Cartel type cases
• Don’t Beat up on the Hapless
• Examples of Food Deserts, see Christopher Leslie, Food Deserts,
Racism, and Antitrust Law, Cal. L. Rev. (forthcoming 2022).

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Engage with the Legislature
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• Most accountable and democratic branch of government
• Virtuous circle if done right, Waller, Antitrust and Democracy, 46 Fl.
St. U. L. Rev. 807 (2020)
• Propose and Comment on Amendments
• Budget
• Oversight
• Role of Blue Ribbon Commissions
• Mandate Should be Clear on Goals
• Introduce as Reform Package?

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An Example of Epic Change in the United States
in the late 1930s
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• Thurman Arnold one of key architects of
chance
• Longest Serving AAG
• Brought Roughly the Same Number of
Cases as in the entire history of the
antitrust laws to that point
• Best Selling Author - Media star
• One of best known and most powerful
members of the FDR Administration
• Importance of Temporary Economy
National Commission Fact Finding
• Went after the rich and powerful
individually as civil and criminal
defendants

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But Wait There is More
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• Increased staff from 11 to 500
• More than quadrupled the budget
• New cases 11-92 (1938-40)
• Investigations 59-215 (1938-40)
• 1941 93 total civil/criminal cases
involving 2909 defendants 24 pending
grand juries
• Established regional offices and modern
advisory opinions
• Used consent decrees to restructure
entire industries
• Helped make antitrust more of a kitchen
table topic by bringing type of case that
resonated with the general public
• Autos
• Movies
• Kitchen Table Cases
• Dairy, Tires. Newsprint, Steel,
Potash, Wooden Ice Cream
Sticks, Gas Stations
• Int’l Cartels, IP, & Market Division
• Tried or Argued in Person Key
Cases; Alcoa (which he tried);
AMA; Insurance; Socony Vacuum
(all argued in SCOTUS)

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How Arnold Locked in Change
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• More than Just Securing Necessary Resources for Public
Enforcement
• Created a Generation of Top Enforcers who pursued a similar
agenda in both public service and private practice
• Some changes codified into statute
• Others became binding precedent
• Importance of general procedural changes
• Corporate sector itself changed
• Public aware and supported this vision of antitrust as both
proconsumer and prodemocracy

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Thanks and for more information
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• Spencer Weber Waller
• John Paul Stevens Chair in Competition
Law
• Loyola University Chicago School of
Law
• swalle1@luc.edu
• www.luc.edu/antitrust
• @sweberwaller on social media