The Case for 'Unfair Methods of Competition' Rulemaking

87 University of Chicago Law Review 357 (2020)

23 Pages Posted: 15 Apr 2020

See all articles by Rohit Chopra

Rohit Chopra

Government of the United States of America - Federal Trade Commission

Lina Khan

Columbia University - Law School

Date Written: March 21, 2020

Abstract

A key feature of antitrust today is that the law is developed entirely through adjudication. Evidence suggests that this exclusive reliance on adjudication has failed to deliver a predictable, efficient, or participatory antitrust regime. Antitrust litigation and enforcement are protracted and expensive, requiring extensive discovery and costly expert analysis. In theory, this approach facilitates nuanced and factspecific analysis of liability and well-tailored remedies. But in practice, the exclusive reliance on case-by-case adjudication has yielded a system of enforcement that generates ambiguity, drains resources, privileges incumbents, and deprives individuals and firms of any real opportunity to participate in the process of creating substantive antitrust rules. It is difficult to quantify this harm.

This Essay argues that rulemaking under § 5 of the Federal Trade Commission Act should supplement antitrust adjudication, and that this institutional shift would lower enforcement costs, reduce ambiguity, and facilitate greater democratic participation. We build on existing scholarship to debunk the view that the Federal Trade Commission (FTC) does not have competition rulemaking authority pursuant to the Administrative Procedure Act conferring Chevron deference, and trace legislative history to underscore how Congress designed the FTC to play a unique institutional role.

We close by outlining an initial set of factors that should weigh in favor of rulemaking: when there is significant learning from past enforcement and when private litigation would be unlikely. Finally, we pose questions in the context of the FTC’s recent hearings to prompt further discussion on where this unused tool would be most useful.

Keywords: antitrust, administrative law

Suggested Citation

Chopra, Rohit and Khan, Lina, The Case for 'Unfair Methods of Competition' Rulemaking (March 21, 2020). 87 University of Chicago Law Review 357 (2020), Available at SSRN: https://ssrn.com/abstract=3558721

Rohit Chopra

Government of the United States of America - Federal Trade Commission ( email )

600 Pennsylvania Ave., NW
Washington, DC 20580
United States

Lina Khan (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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