26th Annual Policy Conference – The State of the Antitrust Technocracy

Welcome and Overview

Randy Stutz, President, American Antitrust Institute

Panel 1: Can We (Ever) Escape the Complexity of Antitrust?

The prevalence of economic analysis in antitrust law has given rise to enormous complexities, particularly in rule of reason cases. Enforcers and courts are sometimes pressed to weigh incommensurable values, to trade off long-term and short-term effects, and to apply unique liability standards to different categories of restraints. Some have proposed rules, presumptions, and other shortcuts designed to reduce complexity, but the solutions often beget exceptions or qualifications that generate still more complexity. This panel will examine past and current efforts to simplify Sherman Act enforcement, drawing lessons from previous experience and making recommendations for the future. Topics will include the per se and “quick look” rules, the Trinko and Brooke Group tests, predatory product-redesign and reverse-payment tests, and other departures from the full-blown rule of reason.

Moderator:
Randy Stutz, President, American Antitrust Institute

Panelists:
Rebecca Allensworth, David Daniels Allen Distinguished Chair of Law, Vanderbilt Law School
Hetal Doshi, Former Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice
Chris Sagers, Charles R. Emrick Jr.- Calfee Halter & Griswold Professor of Law, Cleveland State Law School
Sean Sullivan, Professor of Law, Iowa College of Law

Panel 2: Merger Experts and Merger Expertise: What Does the Future Hold?

The 2023 Merger Guidelines have been publicly endorsed by the antitrust leadership of both the Biden and Trump administrations. But several leading commentators have expressed concerns that, relative to previous iterations, the guidelines deemphasize the central role of economic analysis in merger control. Among other things, commentators argue that the guidelines give special prominence to market structure, deemphasize the hypothetical monopolist test, and downgrade the role of economic welfare and price effects in establishing harm to competition.  This panel will explore the future of merger analysis as an expert-driven enterprise and consider how merger enforcement is likely to evolve under the new guidelines and the current political climate.

Moderator:
Kathleen Bradish, Vice President & Director of Legal Advocacy, American Antitrust Institute

Panelists:
Jonathan Baker, Professor Emeritus, American University Washington College of Law
Dennis Carlton, David McDaniel Keller Professor Emeritus, University of Chicago; Senior Managing Director, Compass Lexecon; Research Associate, National Bureau of Economic Research
Ioana Marinescu, Associate Professor, University of Pennsylvania

Networking Break

Luncheon and Award Presentations

Jerry S. Cohen Award for Antitrust Scholarship
Introduction by Dan Silverman, Partner, Cohen Milstein
Acceptance by Daniel Francis, Assistant Professor of Law, NYU School of Law

Alfred E. Kahn Award for Antitrust Achievement
Introduction by Bill Baer, Visiting Fellow, The Brookings Institution
Acceptance by Nancy Rose, Charles P. Kindleberger Professor of Applied Economics, Massachusetts Institute of Technology Economics Department

Break

Panel 3: Agency Deference, Independence, and Political Pressure: Protecting the Integrity of Enforcement

Antitrust is invariably a political enterprise because it entails the discretionary exercise of enforcement authority that affects markets, wealth distribution, and economic equality. At  the same time, intentionally wielding enforcement powers to achieve political ends can run the gamut from unethical to corrupt. There is widespread concern that recent Supreme Court and Executive Branch encroachments on agency independence threaten the integrity of antitrust enforcement. Panelists will discuss the implications of recent developments and how to chart a path forward. Topics will include changes in administrative law affecting independence and deference, past and present examples of political influence in the allocation of enforcement resources, and how external dynamics and outside political pressure affect agency performance.

Moderator:
David Fisher, Senior Counsel, American Antitrust Institute

Panelists:
Bill Baer, Visiting Fellow, The Brookings Institution
Gwendolyn Cooley, Founder, Taimet LLC
Jon Leibowitz, Former Chairman, Federal Trade Commission, and Former Partner, Davis Polk & Wardwell
Rebecca Slaughter, Commissioner, Federal Trade Commission

Closing Remarks