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It should have been clear enough from reading the abstract of Khan's law review note https://www.yalelawjournal.org/pdf/e.710.Khan.805_zuvfyyeh.pdf https://www.

It should have been clear enough from reading the abstract of Khan's law review note https://www.yalelawjournal.org/pdf/e.710.Khan.805_zuvfyyeh.pdf https://www.yalelawjournal.org/pdf/e.710.Khan.805_zuvfyyeh.p.... Quote: "This Note argues that the current framework in antitrust policy--specifically pegging competition to “consumer welfare,” defined as short-term price effects—-is unequipped to capture the architecture of market power in the modern economy." In other words, the current law is wrong, and it should be this other way instead. Courts, especially U.S. District Courts, apply the law as it is, not the law as the FTC chair wishes it to be. If I was a hedge fund manager with a law degree, I would draw the same conclusion, and make similar bets.

xitrium 3y ago
The current law is more general; it’s the current policy’s consumer price heuristic that has become a bad approximation to the law. I like “The Economists’ Hour” on the topic.
fourthark 3y ago
My understanding is it's the precedent from the past 50 years, rather than the law, that emphasizes "consumer welfare". Source: Matt Stoller's book "Goliath".
- AlbertCory 3y ago
  Precedents are the law (if the decision is considered "precedential").
  - bbatha 3y ago
    However, precedents can also be changed by the court system. So using the FTC as a lever to change precedent is in fact potential route to change the law. It may even be the only option with congress's dysfunction.
    - AlbertCory 3y ago
      > the only option with congress's dysfunction. wrong. Executive action "because Congress doesn't work" is the path to dictatorship. You're right that courts can overrule precedent, but they're generally quite reluctant to do that.
      - bbatha 3y ago
        This isn't the FTC denying these arbitrarily though so isn't just "executive action", this is using the enforcement making power that congress duly granted to agency to bring law suits. If the courts agreed that precedent needs to change that's checks and balances working.
        AlbertCory 3y ago
        > the enforcement making power that congress duly granted to agency to bring law suits. wrong again. See the "major questions" decisions from SCOTUS. Congress didn't grant them to power to do whatever they feel like.
        bbatha 3y ago
        Please tell me what major question this is violating? Anti-trust law is explicitly given in its ability to bring suit to these companies. The consumer harm standard isn't even a part of the law arguably the consumer harm standard should be overturned by the major questions doctrine since the court wrote the rule into the law wholesale without congresses directive decades after the law was written.
        AlbertCory 3y ago
        Isn't the DOJ the usual agency for antitrust complaints like this? Incidentally, since you're regressing on the "consumer harm isn't even part of the law" thing, which you've already lost -- we're done here.
        3y ago
ethbr1 3y ago
The last two decades of anti-trust regulation failure can essentially be chalked up to a divide by zero bug. "But we offer our product for free to consumers, so we can't be a monopoly" was used as a get-out-of-jail-free card, coupled with legislator and regulator ignorance on who the consumer was. Hopefully, we'll look back at 2005-2025 as a silly period where government forgot its place in the market.
AlbertCory 3y ago
As I said elsewhere, betting on whether mergers will go through has a long, long history. Ivan Boesky sought his edge with insider information, which of course is illegal. If Lina Khan gives you a legal edge by making spurious objections, the smart trader takes it. Eventually everyone figures out that an FTC objection doesn't mean much, and the edge goes away.
billjings 3y ago
> In other words, the current law is wrong, and it should be this other way instead. The "current framework in antitrust policy" was not legal at all. It was a set of interpretations and standards agreed upon by judges and enforcement agencies. In particular, the "consumer welfare standard" appears _nowhere_ in our current law. It is a framework that is used as a fig leaf to allow agencies to refuse to enforce the law as written.
shakil 3y ago
She's referring to case law. The WSJ and the US Chamber of Commerce have been gunning for Lina Khan for a while now but I wouldn't bet against her. Even when losing, she's expanding how antitrust should be enforced, eg in the FTC v Meta case, the court seemed to accept [1] the FTC's argument about "actual potential competition", setting a precedent that the FTC will likely use in future cases. 1. https://www.wlf.org/2023/02/24/publishing/actual-potential-competition-ftc-v-meta-within-court-validates-odd-sounding-theory https://www.wlf.org/2023/02/24/publishing/actual-potential-c...

xitrium 3y ago

The current law is more general; it’s the current policy’s consumer price heuristic that has become a bad approximation to the law. I like “The Economists’ Hour” on the topic.

fourthark 3y ago

My understanding is it's the precedent from the past 50 years, rather than the law, that emphasizes "consumer welfare". Source: Matt Stoller's book "Goliath".

AlbertCory 3y ago
Precedents are the law (if the decision is considered "precedential").
- bbatha 3y ago
  However, precedents can also be changed by the court system. So using the FTC as a lever to change precedent is in fact potential route to change the law. It may even be the only option with congress's dysfunction.
  - AlbertCory 3y ago
    > the only option with congress's dysfunction. wrong. Executive action "because Congress doesn't work" is the path to dictatorship. You're right that courts can overrule precedent, but they're generally quite reluctant to do that.
    - bbatha 3y ago
      This isn't the FTC denying these arbitrarily though so isn't just "executive action", this is using the enforcement making power that congress duly granted to agency to bring law suits. If the courts agreed that precedent needs to change that's checks and balances working.
      - AlbertCory 3y ago
        > the enforcement making power that congress duly granted to agency to bring law suits. wrong again. See the "major questions" decisions from SCOTUS. Congress didn't grant them to power to do whatever they feel like.
        bbatha 3y ago
        Please tell me what major question this is violating? Anti-trust law is explicitly given in its ability to bring suit to these companies. The consumer harm standard isn't even a part of the law arguably the consumer harm standard should be overturned by the major questions doctrine since the court wrote the rule into the law wholesale without congresses directive decades after the law was written.
        AlbertCory 3y ago
        Isn't the DOJ the usual agency for antitrust complaints like this? Incidentally, since you're regressing on the "consumer harm isn't even part of the law" thing, which you've already lost -- we're done here.
        3y ago

ethbr1 3y ago

The last two decades of anti-trust regulation failure can essentially be chalked up to a divide by zero bug. "But we offer our product for free to consumers, so we can't be a monopoly" was used as a get-out-of-jail-free card, coupled with legislator and regulator ignorance on who the consumer was. Hopefully, we'll look back at 2005-2025 as a silly period where government forgot its place in the market.

AlbertCory 3y ago

As I said elsewhere, betting on whether mergers will go through has a long, long history. Ivan Boesky sought his edge with insider information, which of course is illegal. If Lina Khan gives you a legal edge by making spurious objections, the smart trader takes it. Eventually everyone figures out that an FTC objection doesn't mean much, and the edge goes away.

billjings 3y ago

> In other words, the current law is wrong, and it should be this other way instead. The "current framework in antitrust policy" was not legal at all. It was a set of interpretations and standards agreed upon by judges and enforcement agencies. In particular, the "consumer welfare standard" appears _nowhere_ in our current law. It is a framework that is used as a fig leaf to allow agencies to refuse to enforce the law as written.

shakil 3y ago

She's referring to case law. The WSJ and the US Chamber of Commerce have been gunning for Lina Khan for a while now but I wouldn't bet against her. Even when losing, she's expanding how antitrust should be enforced, eg in the FTC v Meta case, the court seemed to accept [1] the FTC's argument about "actual potential competition", setting a precedent that the FTC will likely use in future cases. 1. https://www.wlf.org/2023/02/24/publishing/actual-potential-competition-ftc-v-meta-within-court-validates-odd-sounding-theory https://www.wlf.org/2023/02/24/publishing/actual-potential-c...