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Revitalizing Section 5 of the FTC Act Using 'Consumer Choice' Analysis


Robert H. Lande


University of Baltimore - School of Law

October 17, 2008

Antitrust Source, Vol. 8, No. 3, February 2009
University of Baltimore School of Law Legal Studies Research Paper No. 2008-18

Abstract:     
This paper makes two points. First, Section 5 of the FTC Act, properly construed, is indeed significantly broader and more encompassing than the Sherman Act or Clayton Act. Section 5 violations include incipient violations of the other antitrust laws, and also violations of their policy or spirit.

Second, the best - and probably the only - way to interpret Section 5 in an expansive manner is to do so in a way that also is relatively definite, predictable, principled and clearly bounded. This best can be done if Section 5 is articulated using the consumer choice framework. Without the discipline and constraints provided by this framework, the FTC Act risks becoming unduly standardless. Unless the Commission uses the choice framework, any attempt to construe Section 5 that goes beyond the other antitrust laws risks being viewed as giving undue discretion to the Commission, and for this reason probably will not be permitted by reviewing courts.

The paper also presents three illustrations of how this could make a beneficial difference in practice: situations similar to the N Data case, invitations to collude, and incipient tying and exclusive dealing violations.

Number of Pages in PDF File: 7

Keywords: Antitrust, Federal Trade Commission, trade regulation, collusion, tying, exclusive dealing, consumer choice

JEL Classification: K21, L40

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Date posted: October 20, 2008 ; Last revised: July 14, 2011

Suggested Citation

Lande, Robert H., Revitalizing Section 5 of the FTC Act Using 'Consumer Choice' Analysis (October 17, 2008). Antitrust Source, Vol. 8, No. 3, February 2009; University of Baltimore School of Law Legal Studies Research Paper No. 2008-18. Available at SSRN: http://ssrn.com/abstract=1287218

Contact Information

Robert H. Lande (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
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