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.

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.

 

 

On Luck

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On Luck

One of the few things I often think about is just how lucky I have been in my life. Routinely when people ask me how my day is I give them the same answer – “Every day is a great day.” When I utter this statement people frequently look at me perplexed. No doubt the first thing they think is that I must be lying or exaggerating. I can confidently say I am not. My reasoning is simple – I quite literally have no problems in my life and am not apprehensive to state that any potential “problems” that I can state I have experienced are not meaningfully significant.

The following is just a short list of some of the things I have never had to deal with or endure in my entire life: a physical or intellectual disability, lasting hunger, 2 police brutality, leaded water, any disease or infection of any significance, homelessness, poor education, any sort of direct racial bias/racism, abusive parents, gun or drug violence, lengthy periods without access to a computer, internet, or informational database, political instability, any sort of environmental disaster, or financial instability of any kind.

What may not be obvious to the average reader is that my inexperience with almost all of these circumstances comes down to pure luck. Yes, some of these events can be received from my work ethic, but luck is certainly the dominant factor. I cannot control the weather. I did not choose my parents. I did not choose the color of my skin. I did not choose my genetic composition. I did not choose where I was born or grew up. I did not choose the school system I attended. The easiest example I can conjure that can explain this point succinctly is leaded water and hunger. The severe and irreparable adverse effects of leaded water and hunger are well documented. 3 I could for a second believe that I am smart, that I work harder than most people, it is because of my sheer effort that I am as successful as I am, and I deserve it. However, this is simply not true. Here is the proof. All I have to ask myself is the following – would I still be as successful as I am today, would I still be as hard of a worker, and would I still be as smart as I am today if I had 10% more lead in the water I drank when I was a child? How about if I had 10% fewer calories? What about 20%? The answer is simple – I would not. If everything I have ever worked for, and everything that has supposedly been a result of the work I have done in my life can all be erased with just either of these two variables – did I really work harder than most people or it is luck. Staying true to my framework for choosing ideas 4 and general notions of logic, the likelihood of each event must be weighed against each other – luck is the most likely variable that has determined most of my success.

I believe there are several points to take away from this conclusion that are worth elaborating on. First, those who have never faced any of the above problems, they should be thankful to the individuals that were capable of providing them the privilege they take advantage of and the luck they experienced. More importantly, individuals should understand that when they see struggling individuals remind themselves of the advantages that they had that they did not take any part in determining and the privileges absent from the other person’s life. Unfortunately, there is still a pervasive belief that people can simply get ahead by working harder. 5 For those that believe this, consider for a moment how different your life would be if any of the aforementioned factors changed even slightly. Moreover, I plead with those who still believe this principle to ask exactly how much harder do we want people to work. 6 I implore those to determine for me how does a teacher work harder? How about a coal miner, a waitress, or a truck driver? Move faster or work longer? Such modest acts could have an impact, but I am near certain they will not radically or even moderately change one’s overall situation. The fact is there are innumerable jobs where working even 10% longer will most likely not change the current situation, decrease one’s overall happiness, or worse endanger their life and the lives of others. Would we want a truck driver driving two or three hours longer? Do we want teachers devoting even more hours in the day to their students? 7 Should coal miners extract even more coal in some of the abysmal working conditions at the expense of their physical health and well-being? I do not think it is radical that the answer to all of these questions is no and I am not sure of how anyone could justify such as position.

Lastly, I believe people should recognize, given the dispositive impact luck has on life’s outcomes, encouraging people to reflect on the role luck plays can be a method to garner support for a redistributive society. If much of one’s success can be attributed to luck – a fundamental contradiction to a meritocracy – should we want a society that rewards luck and not compensate those with the most unfortunate of circumstances. The ideological divide between those that desire a redistributive society or not is undoubtedly a fundamental division between liberals and conservatives, and a recognition of the determinative impact luck has is necessary to critically evaluate how our political, economic, and social systems are currently constructed and how they should be designed.

 

Reddit comment link: https://redd.it/8fxvvo