Joint Conference on Precautionary Antitrust: The Rule of Law and Innovation Under Assault

Antitrust enforcement traditionally has been a liability regime in which companies and the government seek compensation in courts for injuries following anticompetitive conduct. Antitrust in the United States has predominantly remained an enforcement mechanism instead of the more administrative systems of enforcing competition laws such as the ones in Europe. However, critics of the judicial process’s complexity, length, and costs expressed concerns with traditional antitrust enforced through courts. Neo-Brandeisians advocate taking antitrust away from the courts via preemptive regulations rather than via subsequent prosecutions.

The transformational shift from ex-post judicial enforcement toward ex-ante regulatory rules signals a more profound philosophical change. With the rise of the administrative enforcement of competition rules, many elements inherent to the precautionary principle started to emerge in the field of antitrust. Instances of such precautionary logic include the reversal of the burden of proof so that the government no longer has to demonstrate harm to prohibit conduct, the return to interim measures to “timely” intervene in the markets, the undermining of the consumer-welfare standard for consumer “choice” or competitors’ welfare, and the bias toward status quo over disruptions. This illustrates that the components of the precautionary principle implicitly apply to antitrust matters. What can be described as “precautionary antitrust” is increasingly present in the United States with the enhanced role of the rulemaking authority of the Federal Trade Commission Act. It is already at play in the EU with the Digital Markets Act and in the United Kingdom with the Digital Markets Unit within its competition authority.

Given the precautionary principle’s innovation-deterrence effect, applying the precautionary principle to antitrust matters runs the risks of false positives whereby procompetitive and innovative conducts are preventatively prohibited in the absence of harm, only because of the mere hypothetical damage to an unlimited range of interests. Precautionary antitrust is an assault on innovation as it ossifies the market at the expense of disruptions. Also, precautionary antirust is an assault on the rule of law by diminishing the role of the courts and by preventing companies from raising legitimate justifications for their conduct. To what extent is precautionary antitrust harmful? What does regulating competition through preemptive prohibitions rather than through judicial adjudications imply for litigants?

Agenda

12:20–12:30 — Welcome: Richard Epstein, Aurelien Portuese

12:30–13:00 — Keynote: FTC Commissioner Christine Wilson

13:00–13:30 — Daniel Crane

13:30–14:00 — Elyse Dorsey

14:00–14:30 — Scott Hemphill

14:30–15:00 — Daniel Rubinfeld

15:00–15:30 — Julie Carlson

15:30–16:00 — Adam Mossoff

16:00–16:30 — Kenneth Reinker

16:30–17:00 — David Kappos

17:00–17:30 — Aurelien Portuese

17:30–18:00 — Richard Epstein