Do Expert Agencies Outperform Generalist Judges? Some Preliminary Evidence from the Federal Trade Commission
Joshua D. Wright
Federal Trade Commission; George Mason University School of Law
Freshfields Bruckhaus Deringer US LLP
January 23, 2012
Journal of Antitrust Enforcement, December 2012, pp. 1-22
George Mason Law & Economics Research Paper No. 13-03
In the context of US antitrust law, many commentators have recently called for an expansion of the Federal Trade Commission’s (FTC’s) adjudicatory decision-making authority pursuant to Section 5 of the FTC Act, increased rulemaking, and carving out exceptions for the agency from increased burdens of production facing private plaintiffs. These claims are often expressly grounded in the assertion that expert agencies generate higher quality decisions than federal district court judges. We call this assertion the expertise hypothesis and attempt to test it. The relevant question is whether the expert inputs available to generalist federal district court judges translate to higher quality outputs and better performance than the Commission produces in its role as an adjudicatory decision-maker. While many appear to assume agencies have courts beat on this margin, to our knowledge, this oft-cited reason to increase the discretion of agencies and the deference afforded them by reviewing courts is void of empirical support. Contrary to the expertise hypothesis, we find evidence suggesting the Commission does not perform as well as generalist judges in its adjudicatory antitrust decision-making role. Furthermore, while the available evidence is more limited, there is no clear evidence the Commission adds significant incremental value to the administrative law judge decisions it reviews. In light of these findings, we conclude there is little empirical basis for the various proposals to expand agency authority and deference to agency decisions. More generally, our results highlight the need for research on the relationship between institutional design and agency expertise in the antitrust context.
Number of Pages in PDF File: 23
Keywords: adjudicative, Article III, Brazil, Bureau of Economics, center, China, Clayton, competition, European Union, Gene Brewer, Gwendolyn Bell, India, Jay Kesan, Jonathan Nash, Michael Baye, price fixing, Rafael Pardo, reversal rate, Richard Posner, Robinson-Patman, Section 5, Sherman Act, William Kovac
JEL Classification: K21, K23, L40, L51Accepted Paper Series
Date posted: January 25, 2012 ; Last revised: March 19, 2013
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