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

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

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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.

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

  1. 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. 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. 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. 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. 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. 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. 7. Click to edit Master title style 7 Most Traditional Tools Outside Direct Control of Enforcement Agencies 7
  8. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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

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