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1
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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2
Necessary Disclaimer
2
• 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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3
Time of Passionate Debate of
Fundamental Goals on Antitrust
3
• 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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4
Jurisdictions express a multiplicity of preferences in
different ways that change over time
4
• 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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5
To Paraphrase Justice Oliver Wendell Holmes
5
• 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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6
Current Debate about the Goals of Antitrust is Important but
Only Half the Story
6
• 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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7
Most Traditional Tools Outside Direct Control of Enforcement
Agencies
7
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8
Much Depends on Wise Use of Traditional Tools by the
Enforcement Agencies
8
• 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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9
Use Full Arsenal of Statutory Tools
to Create the Change You Seek
9
• 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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10
Competition as a Core Principle and Basis for Unified Policy
10
• 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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11
Combining Approaches to Competition & Consumer
Protection
11
• 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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12
Engage Civil Society
12
• 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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13
Focus on What Matters
13
• 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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14
Engage with the Legislature
14
• 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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15
An Example of Epic Change in the United States
in the late 1930s
15
• 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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16
But Wait There is More
16
• 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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17
How Arnold Locked in Change
17
• 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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18
Thanks and for more information
18
• 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

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Goals of Competition Policy – WEBER WALLER – December 2022 OECD discussion

  • 1. Click to edit Master title style 1 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
  • 2. Click to edit Master title style 2 Necessary Disclaimer 2 • 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
  • 3. Click to edit Master title style 3 Time of Passionate Debate of Fundamental Goals on Antitrust 3 • Total Welfare • Consumer Welfare • Consumer Welfare + • Competitive Process • Fairness • Address Inequality and Development Needs • Promote and Protect Democracy • Support Climate Change
  • 4. Click to edit Master title style 4 Jurisdictions express a multiplicity of preferences in different ways that change over time 4 • 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
  • 5. Click to edit Master title style 5 To Paraphrase Justice Oliver Wendell Holmes 5 • Deep-seated preferences cannot be argued about- you cannot argue a person into liking a glass of beer • (or a particular goal of antitrust)
  • 6. Click to edit Master title style 6 Current Debate about the Goals of Antitrust is Important but Only Half the Story 6 • 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
  • 7. Click to edit Master title style 7 Most Traditional Tools Outside Direct Control of Enforcement Agencies 7
  • 8. Click to edit Master title style 8 Much Depends on Wise Use of Traditional Tools by the Enforcement Agencies 8 • 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
  • 9. Click to edit Master title style 9 Use Full Arsenal of Statutory Tools to Create the Change You Seek 9 • 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
  • 10. Click to edit Master title style 10 Competition as a Core Principle and Basis for Unified Policy 10 • 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
  • 11. Click to edit Master title style 11 Combining Approaches to Competition & Consumer Protection 11 • 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
  • 12. Click to edit Master title style 12 Engage Civil Society 12 • Hearings & Workshops • Speeches • Universities • Think Tanks • Traditional Media • Social Media • Innovative Outreach • The Importance of a General Audience • Pop Culture and Antitrust
  • 13. Click to edit Master title style 13 Focus on What Matters 13 • 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).
  • 14. Click to edit Master title style 14 Engage with the Legislature 14 • 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?
  • 15. Click to edit Master title style 15 An Example of Epic Change in the United States in the late 1930s 15 • 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
  • 16. Click to edit Master title style 16 But Wait There is More 16 • 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)
  • 17. Click to edit Master title style 17 How Arnold Locked in Change 17 • 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
  • 18. Click to edit Master title style 18 Thanks and for more information 18 • 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