Government Reports on Antitrust

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The United States has a long tradition of investigating markets, deepening our understanding of our antitrust laws, and improving/broadening our application of them to meet new market challenges. 

Below is a list of all of the major reports and investigations conducted by Congress, the Executive, and our Agencies either into our antitrust laws or where antitrust law is central to the understanding of the problem. Most of the provided material is free to access.

A Competition Platform for 2020

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The 2020 presidential election is already well underway. Democratic candidates are laboring to differentiate themselves. The renewed interest in antitrust enforcement presents itself as the perfect opportunity for candidates to do so. 2

I certainly applaud Senators Warren’s recently released proposal to break up big tech, 3 but given the breadth of antitrust and the effects of its enforcement, even her proposal requires a broader plan.

While this list of recommendations is not comprehensive, this post aims to provide a clear set of policy positions that candidates can adopt to reinvigorate competition, enhance the rights of workers, and maximize enforcement.

Maximize Antitrust Enforcement and Ensure Competitive Markets for Workers

1) Reverse the Pleading Standard.

Regardless of its perceived limited effect, 4 candidates should encourage the passage of legislation that will revert the pleading standard for federal civil cases back to the original and long-standing interpretation under Conley v. Gibson. Antitrust litigation, particularly private enforcement, already has rigorous evidentiary burdens. It is unnecessary to incorporate additional burdens, especially before the commencement of litigation. 5

2) Amend Section 5 of the FTC Act to Include a Private Right of Action.

Section 5 of the Federal Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive acts” in commerce. 6 State consumer protection laws are often inadequate to redress consumer harm. Perhaps the most straightforward policy would be to enable citizens to access the broad enforcement regime of Section 5 through enacting a private right of action. 7 Providing a private right of action would also lessen the effect of flattening or declining budgets of the FTC.

3) Hire Additional Enforcement Personnel

Antitrust enforcement is notoriously expensive 8 and lengthy. 9 Staff shortages limit the ability of the agencies to conduct antitrust litigation and respond adequately to the army of attorneys corporations have at their disposal. Candidates must advocate for dramatically increasing the budget and the number of attorneys at the Department of Justice and the Federal Trade Commission. 10

4) Abolish Arbitration.

While there was a time that certain federal courts dismissed arbitration clauses for antitrust claims, as they believed the antitrust laws were “of a character inappropriate for enforcement by arbitration.” 11 The Supreme Court has subsequently rejected that position. 12 Arbitration weakens (or outright prevents) the ability of private individuals from being able to enforce our antitrust laws. Since public enforcement is in part incentivized by the vigor of private enforcement, a policy that inhibits private enforcement invariably weakens public enforcement. 13 The next administration should seek to fully repeal the Federal Arbitration Act – particularly since the Supreme Court continues its endeavor to allow arbitration in nearly every aspect, which denies millions of people their day in court. 14  

5) Prohibit Non-Competes.

Thirty million works are currently affected by non-competes and are often attached as a condition of a person’s employment. Candidates should encourage the Federal Trade Commission, through its rule-making authority, to prohibit non-competes as a violation of the Sherman Act. 15

6) Rigorously Scrutinize Occupational Licensing Requirements.

Occupational licenses can provide confidence in the market and possibly increase the quality of products and services. 16 However, occupational licenses can also restrict labor mobility and can be imposed in seemingly arbitrary ways, thus increasing barriers to entry for workers. 17

7) Vigorously Pursue Monopolization Enforcement.

The last monopolization case pursued by the government was against Microsoft in 2001. 18 Meanwhile, there is mounting evidence that countless markets have become exceptionally concentrated. 19 The next administration should reinvigorate its antitrust approach and vigorously engage in monopolization enforcement – particularly against the technology goliaths (Google, Apple, Facebook, Amazon, and Microsoft). 20

Merger Review

1) Update Vertical Merger Guidelines.

Numerous scholars have indicated that the Vertical Merger Guidelines are woefully out of date and inept at properly preventing anticompetitive vertical mergers – the latest example being the AT&T-Time Warner. The next administration should start from scratch and develop a clear set of guidelines that allow out agencies to properly prevent vertical mergers that are anticompetitive and stays faithful to the explicit text of the Clayton Act that prohibits mergers whose effects “may be substantially to lessen competition, or to tend to create a monopoly.” 21

2) Enact a Conglomerate Merger Statute and Guidelines.

As many of the technology goliaths expand into countless markets, antitrust enforcers should seek to bring conglomerate merger litigation against their actions. Additionally, the next administration should seek to enact explicit conglomerate merger legislation and guidelines that can adequately codify the processes, procedures, and enforcement principles of conglomerate enforcement to ensure competitive markets.

3) Retrospective Merger Review.

The literature is clear that most claimed merger efficiencies do not bear any fruit or are exaggerated. 22 Antitrust agencies should be provided funds and statutory authority to conduct retrospective merger review studies to ensure that claimed merger efficiencies are actually implemented and adjust antitrust enforcement procedures as well as the pursued remedies based on the results. 23

4) Incorporate Labor Market Considerations into Antitrust Analysis.

Antitrust scholars and labor economists have brought significant recognition to the labor effects of low competition. 24 Merger review and antitrust enforcement more generally should incorporate various labor market variables including the impact of employment terms, worker mobility, and worker concentration into the analysis. 25

 

Alternatives to the Technology Platforms

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Introduction

The technology giants such as Google, Apple, Facebook, and Microsoft are integrated into nearly every aspect of our productive and social lives. 2 As scholars, politicians, and even governments become increasingly eager in antitrust and other regulatory mechanisms to tame them, all of these parties cannot forget that consumers also play a role in fighting monopoly power on an individual level as well. While I believe consumers face exceptional difficulty with breaking free of the applications the technology giants have created and I support other structural remedies for the technology platforms, 3 with commitment and some sacrifice, there is refuge for consumers to abandon the technology platforms.

The use of technology services predominantly consists of accessing files and using software through an operating system, accessing the internet through a web browser, using a search engine to find websites and information on the internet, engaging in productivity tasks through an office suite, and messaging friends and family. This short post will detail several alternatives applications aimed at breaking the technology giant’s monopoly power in each market and provide several links to assist with the transition.

Computer Operating Systems
The computer operating system provides a graphical interface that allows users to access their files and software. Currently, there are two primary operating systems used extensively today on computers – Microsoft’s Windows and Apple’s macOS. Collectively, these products have an 87% global market share. 4 Now even I can admit this will be one of the hardest technology products to abandon because almost everything a user does on a computer is dependent on the operating system. Whether it is to access your files, the ability to edit and create files, the software you use, etc. Nevertheless, Linux operating systems have software that allows users to do almost everything that Windows and macOS can currently perform.

Using a Linux operating system has its benefits as most are free and do not try to extract data from users. 5 While, the most popular Linux operating system – Ubuntu – does collect some data, 6 the operating system works well for most users for two primary reasons. First, the operating system receives consistent updates (every April and October), so users always have a secure operating system with the latest features. Second, Ubuntu has a simple to use software store that allows users to install software analogous to Microsoft’s Windows Store and the AppStore for macOS. Conveniently, Ubuntu also provides users the feature to try the operating system before fully installing and committing to it. Additionally, there are also easy tutorials that detail how to change the interface of the Ubuntu operating system to look more like Windows and macOS, which should ease the transition to the new operating system.

Before a user considers switching to Ubuntu or another Linux operating system, I would first suggest each user consider what they actually do on a computer – specifically what software they use. This can be done by following the guides provided below.

Once a user determines how they use their computer and what applications they use they can then utilize certain internet resources that will help them find alternative software or the exact same software that works with the Linux operating system they are switching to. My favorite service to use to accomplish this task is AlternativeTo.net

When a user is ready to make the transition to a Linux operating system, they should not forget to back up all of their files. Consumers can then use this guide to install Ubuntu.

Should a user discover that one of their favorite programs does not offer a Linux version or an alternative is insufficient for their needs, they should immediately contact the developer of that software and ask them to develop a Linux based version. Software developers will create a Linux version if there is enough user demand – so every single submission assists in the endeavor of increasing the software available on Linux operating systems, which would make them even more viable alternatives.

Now if a user must use Windows or macOS, there are some actions users should take to make the respective operating system more private. Each of the guides below provides a step-by-step method to ensure maximum privacy on the operating system.

Web Browsers
Google Chrome is by far the most dominant web browser in the world. 7 With Chrome, Google extracts a ton of user information that should encourage users to switch away from using the browser. 8

There are two methods to avoid using Google Chrome. The first is slightly harder but more recommended, while the second is easier but less recommended. The first method involves abandoning Chrome-based web browsers altogether. Most users may not know that Google’s Chrome browser is built upon the Chromium architecture – its open source counterpart. Even Microsoft, after the failure of their Edge browser to obtain mass market success, is adopting the Chrome architecture. 9

The best browser to break away from Chrome is Firefox. The experience is almost identical. There are no tracking or privacy issues that a user has to be concerned about. Firefox provides just a simple web browsing experience. Even the available browser extensions between Firefox and the Chrome-based browsers are almost identical. Firefox also offers a Linux version.

However, if you enjoy the Chrome experience for whatever reason, then consumers should at least use a non-Google derivative. The browser that I recommend that takes this avenue is Brave. 10 Brave operates similar to Chrome and can install the same extensions available in the Web Store. Brave also provides users a much more private browsing experience to users than Chrome. 11 Additionally, Brave also offers a Linux version.

If you must continue to use Chrome or are going to use a Chrome derivative such as Brave, I strongly encourage users to install the following Chrome extensions which will help keep their information and browsing experience private.

  • AdBlock Plus or Ad Block: Blocks web advertisements
    • Note: It is important to allow nonintrusive advertising when using either AdBlock Plus or Ad Block as there are many websites that derive their revenue from digital advertising.
  • Ghostery: Control JavaScript “tags” and “trackers”
  • HTTPS Everywhere: Automatically makes websites use a more secure HTTPS connection instead of HTTP, if it is supported.
  • Privacy Badger: Blocks advertisements and tracking cookies that do not respect the Do Not Track setting in a user’s web browser. 

Search Engines
Perhaps the most used website accessed through a browser is a search engine. 12 Most people will already know this; nevertheless, it should be stated. Consumers should not use Google or Bing. Both of them continuously harvest user data and have a combined worldwide market share of 95%. 13 Without question, the two best alternatives to Google and Bing are DuckDuckGo and Startpage.com. Both of these search engines are completely private and provide a similar experience. 14

Office Suites
Microsoft Office is one of the most used office suites, but for many people the plethora of features that the service provides are superfluous. Fortunately, LibreOffice is an excellent alternative that offers near identical functionality and works with Linux. To assist with determining whether LibreOffice is a viable alternative for users, a full comparison of LibreOffice and Microsoft Office can be accessed here

Messaging
Millions of people use text messages, Facebook Messenger, and WhatsApp (owned by Facebook) to communicate with friends and family. 15 By using these services, consumers are willingly giving valuable information to the technology giants. The best alternative is Signal by Open Whisper Systems. It is completely private and available on multiple operating systems (including smartphones). 16 There is even a Linux version. 17

Conclusion

By switching away from the dominant technology platforms, users can help break monopoly power in the marketplace. Just as important as switching services on an individual level is telling others that they should switch too. While the transition to these alternative services may be difficult and even frustrating, it is one of the ways individuals can assist in breaking monopoly power in the technology sector.

On Choosing Ideas Part 3 – The Hierarchy of Ideas

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On Choosing Ideas Part 3 – The Hierarchy of Ideas

Introduction
The first post in this series only answered how to determine which idea should be implemented over another idea aimed at solving the same problem, what I will term horizontal idea differentiation. Basically, the first post answered how do I know which idea is better to solve a problem when, each of the ideas to be analyzed have common goal/problem to be applied to. This post provides the analysis to answer how to know when one domain of ideas is more important than another that solve different problems? I term this concept vertical idea differentiation.

The importance of this post should not be understated. We live in very turbulent geopolitical times. 2 Additionally, there are more activist groups, think tanks, lobbyists, campaign spending, protests than ever before all trying to persuade our elected officials to enact their agenda, claiming their ideas are the most important. With all of this noise, it is no wonder why we are living in very unproductive legislative times as well. 3 Moreover, given the complexity of some ideas and the fact that the individuals educating others on the importance of their idea are working professionals, in particular academic researchers, we must acknowledge that there is a significant amount of personal bias given that most of these individuals are confined to one area of specialization, which causes them to think what they are doing is most important, or at worst, not admitting another idea is more important than the one they have specialized in.

One of the most well-known examples of where vertical idea differentiation has been utilized is when Professor Lawrence Lessig stated in his pitch to get ordinary citizens to understand how important his ideas he outlined in Republic Lost where he stated that the problem of campaign finance in our elections is not the most important idea, it is simply the first problem that has to be solved. 4 For me this is problematic, the first idea to be solved by definition should be the most important, if it was not then why are we implementing it first. In an extreme example, given Professor Lessig’s statement, his idea should be implemented first over, for example, finding a solution to a six-mile-wide meteor heading for Earth. Obviously, given Professor Lessig’s intelligence and pedigree he could not have possibly meant this. While Professor Lessig does elaborate as to why his idea of fixing our elections is the first idea that needs to be implemented, I believe more could have been done.

This post will attempt to provide a framework of considerations to determine which domain idea is more important than another. This post can aid in the prioritizing political agenda both on the right and the left from the politicians themselves to the activist groups seeking to pursue them. Additionally, this post will assist individuals to determine which ideas are actually more important. Thus, a situation becomes possible that someone advocating for limitations on carbon emissions, can simultaneously also advocate for a more important idea because they would now be endowed with an analysis showing them that there are other ideas that are more important than their own – hopefully.

Before I begin, I can already see the hordes of people saying who am I to determine that an idea I am seeking to implement is more important – what arrogance I have! Nevertheless, I again point to an extreme example – it would be nothing short of immoral to state that ending the use of fidget spinners in U.S. schools is more important than solving the problem of an impending six-mile-wide meteor impact because on its most basic level the use of fidget spinners in US schools effects 50 million students, 5 and a meteor impact of the stated magnitude could affect not only all 7.6 billion human lives but also all life on the only planet we know (or are able to adequately get to) that can harbor life. While utilizing logical extremes in an argument can be a logical fallacy, 6 the practice can be used initially to understand which side of an argument – at least initially – is “more correct.” In this case, the example I provided clearly establishing that some ideas are more important than others, and simply needs an analysis to explain and argue why that is the case. Ultimately, no analysis can be comprehensive or even conclusive. Instead, this post attempts to list the most important considerations when determining which ideas need to be implemented or problems that need to be solved over another idea or problem.

Laying the foundation
To determine how the analysis should be constructed, we first have to define what “important” means as importance inexorably creates a hierarchy which we can use to prioritize ideas. Taking a page out of well-established principles of statutory construction, we will first look to the dictionary. 7 Taking the top result from three widely used sources we find that “important” means:

  • Google Dictionary: Of great significance or value; likely to have a profound effect on success, survival, or well-being. 8
  • Dictionary.com: Of much or great significance or consequence. 9
  • Merriam-Webster: Marked by or indicative of significant worth or consequence, valuable in content or relationship. 10

Each of these definitions have essential parts which can be better explained by creating a unified definition that is reasonable given the information above. For purposes of this post, important will be defined as of significant value or consequence to survival, well-being, and success to both the society at large and the individual. I am using this definition for several reasons. To create a more concrete definition we need to discuss each of the items in the stated list separately.

Survival, the first of the three listed items in the definition (i.e. survival, well-being, and success), is by definition the most important variable to an individual. Without survival, nothing can be important because you would be dead. It is axiomatic that something that is/can be important → You are alive. By definition, importance is a concept that is attached to an idea, concept, or object by a living creature, if anything the very idea of survival is the driving force of evolution itself.

Continuing down the list, well-being must be second to survival because although you would be alive, thus satisfying the first consideration in our list, you could be suffering. One such example could be one who is on the verge of death from dehydration. Just because you are alive does not mean you are living.

Considering the third variable, we get to success. Success can be codified in an individual and subjective way, but there are some essential elements of success that are universally understood. However, codifying a framework for subjective experiences is beyond the scope of this post, while it will be addressed in a future post for simplification, we can actually define success as its ability to facilitate the first two items in our importance list.

Lastly, importance should apply to both the individual and society. Put simply, while individual well-being, at least in the short run, can be “important,” as is the case with survival, it is irrefutable that one’s well-being is also intrinsically tied to the well-being of the society in which they inhabit. Additionally, because of the consideration that importance to the individual in the short run and importance to society in the long run, or vice-versa can have adverse outcomes, to smooth the analysis both of them should be considered simultaneously. Thus, at the very least we can determine that if an idea does not promote the survival or well-being of both the society and the individual it must be less important than a one that does.

From this we can already extrapolate a hierarchy, the most important ideas consider the survival, well-being, and success of both the individual and society. Less important are those ideas that only facilitate the survival, well-being, and success of just the society. Less important than that are ideas that only facilitated the survival, well-being, and success of the individual. And the least important ideas do not facilitate the survival, well-being, and success of either the society or the individual.

Before continuing, it is important to justify why I have placed ideas that facilitate the survival, well-being, and success of the society over the individual as I am certain that at least modern philosophers would find the mere utterance of this principle abhorrent and nothing short of immoral. 11 However, while I also alluded to this principle in my previous post and have failed to define my reasoning or even what constitutes a society, 12 I will once again postpone my reasoning for another future post. Instead, please accept this position as true.

Vertical Idea Differentiation Analysis

To properly determine which sets of ideas is more important there are two avenues of factors. First, there is understanding the nature and magnitude of the harms and benefits that would result absent the implementation of the idea. Second, there is who/what is harmed or benefited from the implementation of the idea.

Detailing the Nature and Magnitude of the Harm

  • How immediate will the consequences of not fixing the stated problem/not implementing the idea be experienced? (i.e. Immediacy) For example, without the implementation of this idea, would death be immediate → If yes, this idea becomes the most important idea. Given the limited time all humans have on this planet, the easiest determination is the sooner a problem impacts us, depending of the other factors, it is potentially more important.
  • Does the stated problem get worse over time? Linearly, Exponentially, Logarithmically? (i.e. Incipiency) The purposes of this question is to ensure the answer to the first question is not distorted in any way. Essentially, just because the consequences of the lack of implementing an idea are not immediate does not mean it is not important. The most obvious example this applies to is climate change.
  • How long will it take to implement the idea, gain mass market appeal (if needed), and to at least start reversing any negative consequences that have already taken place from the lack of implementing the idea? (i.e. Duration)
  • Should solution not be implemented how irreparable is the damage (in time and money), and to whom does the damage implicate and to what degree (a country, citizens, state, etc)? (i.e. Irreparability) Obviously, if the consequences deriving  from a problem are irreparable, it is more important than consequences that are not.
  • How many problems is this harm linked to? Does solving this problem alleviate other problems? (i.e. Connectivity)

Detailing who is Harmed/Benefited

  • What is the absolute number of people affected by the problem and benefited by the solution? (i.e. Numerosity)
  • How individualized is the harm? (i.e. Individuality)
  • Where will the harm take place? (i.e. Locality)
  • How is the environment impacted?

Additional considerations

The following considerations while not dispositive should be discussed. The reason they are not necessary to determine importance is simple, given the lack of either of these variable does not mean the idea is not important. A simple example is just because I cannot observe the six-mile meteor that is going to hit our planet does not mean it is not important.

  • How observable is the problem? (i.e. Observability) Not an absolute requirement, but makes understanding the problem much more likely, and thus support from the general public is much easier to obtain.
  • How understandable is the problem to the average person? (i.e. Understandability) While I hate to admit it, most solutions to a problem need to have the backing of the majority of people or at least the decision makers. Ideas that are not understandable will most likely not be implemented.
  • What is the ability/cost/probability of implementation of the solution, the number of people required to be involved, the amount of financial resources, the amount of technology to solve the problem – do we have the technology to solve the problem or does it need to be developed)? (i.e. Feasibility and Dependency) This is the hardest variable to contend with given the human spirit of trying to succeed regardless of the odds. While I acknowledge that there are some situations where the odds should not matter, especially given the consequences – consider again the six-mile-wide meteor hitting Earth – on a more practical side these variables must be considered. It should be noted that trying should not be conflated with taking any conceivable action. A misunderstanding of this point could lead someone to pray that an individual’s stage four cancer to disappear. Trying, in this case, is limited to reasonable actions with verifiable results that simply have a low probability of success.
  • Are the people causing the problem internalizing the harms they are causing? If so, how? (i.e. Externalities) It is important to consider whether the individuals potentially created the harm(s) both (1) acknowledge the problems existence and (2) willingness to participate in the solution.

Conclusion

I eagerly acknowledge that the framework stated above does not lead to concrete answers – although it does provide the considerations for people to consider and have the debate. Nevertheless, as I have shown, it is obvious there is a hierarchy of ideas. It is up to us to admit to ourselves and to others that some ideas are more important than even the ideas we truly believe in and have spent most of our lives advocating for. Given the never-ending onslaught on nefarious actions by our politicians, there is as philosopher Sam Harris has stated a “war of ideas.” 13 Who wins this war will determine the nature and distribution of power in our society. There could not be more at stake. We need to convince people that climate change is real, abortion is a right, marijuana should be legalized, antitrust should be actively enforced, and more. I am more than happy to admit while antitrust is the most important cause for me and it is the cause I will spend the rest of my life advocating for and studying, antitrust is NOT the most important cause or issue. While effective antitrust enforcement can redistribute power in many circumstances, antitrust does not aid with how to properly structure our government to insulate it from corporate control, outside interests, or foreign powers, and certainly does not provide a basis to create rules that prevent political corruption. Many scholars, such as Lawrence Lessig and Yascha Mounk, especially since the election of Donald Trump, show that our republic is vulnerable and it currently being weakened. I hope others follow suit and admit this as well so we can all support ideas that are on top of the hierarchy.

 

Reddit comment page: https://redd.it/94dpjb 

Antitrust Conferences

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Antitrust Conferences

Antitrust is at a major inflection point, where even the general public is becoming interested in antitrust, its usage, study, and enforcement. To aid with helping individuals – both professional and members of the general public – engage with the academic discussions surrounding antitrust, this post aims to list the yearly events devoted to antitrust that I have been able to find. This list is designed to be comprehensive, so political affiliation is ignored. The numerical number of the month is listed first to align them correctly in the spreadsheet. Feel free to submit any that I missed by either emailing me or submitting a suggestion on the Reddit page.