• Heritage Action
  • More
  • Legal Memorandum posted December 11, 2014 by Alden Abbott Constitutional Constraints on Federal Antitrust Law

    A‌merica’s antitrust laws have long held a special status in the ‌federal statutory hierarchy. The Supreme Court of the United States, for example, has famously stated that the “[a]ntitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise.”[1] Thus, a decision not to apply the antitrust laws to a particular type of conduct…

  • Commentary posted December 1, 2014 by Alden Abbott Transatlantic Trade Negotiations: Keeping Regulation in Check

    Last week, the George Washington University Center for Regulatory Studies convened a Conference (GW Conference) on the Status of Transatlantic Trade and Investment Partnership (TTIP) Negotiations between the European Union (EU) and the United States (U.S.), which were launched in 2013 and will continue for an indefinite period of time. In launching TTIP, the Obama…

  • Commentary posted November 13, 2014 by Alden Abbott Abuse of Dominance by Patentees: A Pro-Innovation Perspective

    Antitrust issues (referred to interchangeably here as competition issues) are an increasingly important consideration for intellectual property (IP) owners. Such issues can arise in numerous transactions involving IP rights, including from refusals to license, exclusive licenses, royalty provisions, field of use restrictions, territorial and customer limitations,…

  • Legal Memorandum posted October 29, 2014 by Alden Abbott Time to Reform FTC Advertising Regulation

    A‌dvertising is a boon to the American economy.[1] By informing ‌large numbers of consumers about the attributes of goods and services, it helps to create broad markets for those products, generating economies of scale that lower cost and prices. Information embedded in advertising allows consumers to make better choices in the marketplace, benefiting ultimate purchasers…

  • Commentary posted September 25, 2014 by Alden Abbott The ICN’s Recommended Practices on Competition Assessment: Reflections on Measuring Competitive Harm

    CPI ICN Column edited by Maria Coppola (U.S. Federal Trade Commission) The ICN’s Recommended Practices on Competition Assessment: Reflections on Measuring Competitive Harm - Alden F. Abbott (Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation)[1] The International Competition Network’s (ICN) adoption of 13 “Recommended Practices on Competition…

  • Commentary posted September 23, 2014 by Alden Abbott Enterprise Cities, Competition, and Economic Growth

    Shanker Singham of the Babson Global Institute (formerly a leading international trade lawyer and author of the most comprehensive one-volume work on the interplay between competition and international trade policy) has published a short article introducing the concept of “enterprise cities.”  This article, which outlines an incentives-based, market-oriented approach to…

  • Legal Memorandum posted September 10, 2014 by Alden Abbott The Federal Trade Commission’s Role in Online Security: Data Protector or Dictator?

    Background: The Online Data Security Problem While the phrase “identity theft” typically brings to mind stolen credit cards and false identity badges, another key area where privacy violations can occur is less visible but equally insidious: corporate data breaches. Companies’ online data protection practices have a major impact on consumer privacy. Target’s 2013…

  • Commentary posted August 19, 2014 by Alden Abbott How to Reform Operation Choke Point

    “Operation Choke Point” (OCP) is an interdepartmental initiative by the U.S. Department of Justice (DOJ) and federal financial services regulators to discourage financial intermediaries from dealing with consumer fraud-plagued industries.  In an August 4 Heritage Foundation Legal Memorandum, I discuss the misapplication of this potentially beneficial project and recommend…

  • Commentary posted August 6, 2014 by Alden Abbott New Heritage Study Highlights Anticompetitive Features of Obamacare and Points the Way to Needed Reforms

    A study released today by the Heritage Foundation (authored by Christopher M. Pope) succinctly describes the inherently anticompetitive nature of Obamacare, which will tend to inflate prices, not reduce costs: “The growth of monopoly power among health care providers bears much responsibility for driving up the cost of health care over recent years. By mandating that…

  • Legal Memorandum posted August 4, 2014 by Alden Abbott “Choking Off” Disfavored Businesses and Their Clients: How Operation Choke Point Undermines the Rule of Law and Harms the Economy

    Misapplication of a U.S. Department of Justice (DOJ) program known as Operation Choke Point (OCP) threatens to impose substantial costs on fully legal but government-disfavored categories of businesses, according to a May 29, 2014, report from the House Committee on Oversight and Government Reform.[1] As outlined in the House Report, OCP is implemented through DOJ…

  • Commentary posted July 28, 2014 by Alden Abbott Conditional Pricing Practices and the Limits of Antitrust

    The Federal Trade Commission’s (FTC) June 23 Workshop on Conditional Pricing Practices featured a broad airing of views on loyalty discounts and bundled pricing, popular vertical business practices that recently have caused much ink to be spilled by the antitrust commentariat.  In addition to predictable academic analyses featuring alternative theoretical anticompetitive…

  • Commentary posted July 17, 2014 by Alden Abbott A Cost-Benefit Framework for Antitrust Enforcement Policy

    Debates among modern antitrust experts focus primarily on the appropriate indicia of anticompetitive behavior, the particular methodologies that should be applied in assessing such conduct, and the best combination and calibration of antitrust sanctions (fines, jail terms, injunctive relief, cease and desist orders).  Given a broad consensus that antitrust rules should…

  • Commentary posted July 17, 2014 by Alden Abbott A Reply to the Rubins on Crony Capitalism

    Paul H. Rubin and Joseph S. Rubin advance the provocative position that some crony capitalism may be welfare enhancing. With all due respect, I am not convinced by their defense of government-business cronyism.  “Second best correction” arguments can be made with respect to ANY inefficient government rule.  In reality, it is almost impossible to calibrate the degree of…

  • Commentary posted July 8, 2014 by Alden Abbott Supremes Preserve Fraud on the Market (and Bail Out Class Action Plaintiffs) - Time for Congress to Kill it

    On June 23 the Supreme Court regrettably declined the chance to stem the abuses of private fraud-based class action securities litigation.  In Halliburton v. EPJ Fund (June 23, 2014), a six-Justice Supreme Court majority (Chief Justice Roberts writing for the Court, joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) reversed the Fifth Circuit and held that a class…

  • Legal Memorandum posted June 25, 2014 by Alden Abbott Strengthening Property Rights and the U.S. Economy Through Federal Trade Secret Protection

    Strong protection for intellectual property (IP) is vitally important to the health of the United States economy. IP industries account for more than 40 percent of U.S. economic growth and employment, and they create strong incentives for investments in innovation that drive future U.S. economic growth and innovation.[1] Currently, owners of three of the four major…