American Precautionary Antitrust: Unrestrained FTC Rulemaking Authority
GAICIL Insights
The FTC’s 2022 agenda included using rulemaking to ban so-called unfair methods of competition through preemptive rules of per se illegality. The report argues this is both unlawful, for lack of a congressional mandate, and economically harmful.
Preemptive bans embody the precautionary logic of Europe’s Digital Markets Act. The report urges agencies to follow “dynamic antitrust” instead, a choice that matters for emerging AI markets.
Abstract
The FTC plans to follow Europe’s precautionary approach to antitrust by enacting preemptive rules of per se illegality. But American precautionary antitrust is both unlawful and economically harmful, as it opposes dynamic competition, which benefits consumers and innovation.1
Conclusion
U.S. antitrust agencies should push back, rather than endorse European precautionary antitrust, given the costs such a static approach impose on American innovation and consumers.
Agencies should instead adhere to principles of “dynamic antitrust,” wherein evolutionary economics meet an evolutionary application of the law through the adjudicative process.
Takeaway: American precautionary antitrust is both unlawful and economically harmful, as it opposes dynamic competition, which benefits consumers and innovation.
Conclusion quoted verbatim from the report.
Notes
- Aurelien Portuese, American Precautionary Antitrust: Unrestrained FTC Rulemaking Authority (Info. Tech. & Innovation Found., Jan. 31, 2022), https://itif.org/publications/2022/01/31/american-precautionary-antitrust-unrestrained-ftc-rulemaking-authority/. Summary quoted verbatim from the ITIF publication page, https://itif.org/publications/2022/01/31/american-precautionary-antitrust-unrestrained-ftc-rulemaking-authority/. ↩
Cite as: Aurelien Portuese, American Precautionary Antitrust: Unrestrained FTC Rulemaking Authority (Info. Tech. & Innovation Found., Jan. 31, 2022), https://itif.org/publications/2022/01/31/american-precautionary-antitrust-unrestrained-ftc-rulemaking-authority/
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