Cybertoonz goes to the FTC

The willingness of Lina Khan's FTC to pursue untested -- and sometimes unlikely -- legal theories has been the subject of much sober commentary. But really, what fun is sober commentary?  So here's the Cybertoonz take on the FTC's new litigation strategy.  And, again, many thanks to Bing's Image Creator, which draws way better than I do.

Comments

[Martinned]

Glad you warned us not to expect sober commentary...

[David Welker]

I would love to hear more elaboration on this.

The antitrust laws are famously broad. Most status quo theories of antitrust law are permitted, but not required by the text.

If new theories of antitrust law are to be rejected on the basis that they are new and for no other reason, wouldn’t that imply that we should reject Robert Bork’s “consumer welfare theory.” After all, this theory was inconsistent with existing practice and came long after the passage of the underlying acts.

Assuming arguendo that Khan rightly believes that Bork’s approach has not honored the underlying acts, it can’t be that this approach is now the “final word” when a “final word” theory of antitrust law would have prevented the Bork’s theories in the first place.

The correct answer is that the antitrust acts left the details of what sorts of acts are a “restraint on trade” to the judiciary. And, in that world, evolution of the law based on experience is legitimate.

In other words, Baker needs a more substantive critique of Khan’s supposedly “untested” theories (Bork’s theories were likewise untested) and he needs to do more to explain why some (but not others?) of those theories are unlikely (and address the related question, would Bork’s theories have been seen as likely at the time?)

We live in a world where a practical minded individual cannot deny that we have enormous tech companies who seem to “restrain trade” all the time. If we were to use a “plain language” approach to the the antitrust laws, wouldn’t these tech companies face a much more heavy lift justifying their practices than they currently do? If, instead, we take the language of the antitrust acts as a starting point and allow precedent to eliminate all practical intuitions regarding what words mean, I hardly think criticism of theories as being “new” is justified. If you are going to depart so radically from text, the flexibility of a common law approach applies. And the common law is not a straight jacket that reifies the ideas of any particular unelected academic.

[Gandydancer]

Yes, let's reject all "new" crap as violative of the rule of lenity.

Problem solved,

[David Welker]

The rule of lenity applies in a criminal law context. Antitrust law is mainly civil, although criminal prosecution is possible.

[Nige]

There was a sublime satirical cartoon made using clip-art that appeared after 9/11 during the run-up to the war, called Get Your War On. Comparison clearly shows that, so far, these bots are no substitute for talent. It's not even that terrible a joke! But everything abou the execution is SO dire.

[Dan Schiavetta]

This is called “bitch slapping”. I thought Stewart had finally moved out of the frat house but I was wrong.

[dwb68]

also the rest of the admin.

Nothing signals to the courts that they should stop deferring to agency experts than politicizing the science, see also the FDA.

[Sarcastr0]

Actually, in response to clear political abuse of science in defense of Trumps sharpie usage, this admin is putting policies in place: https://www.whitehouse.gov/wp-content/uploads/2023/01/01-2023-Framework-for-Federal-Scientific-Integrity-Policy-and-Practice.pdf

[Darwinnie]

Don’t quit your day job.