Panelists: Andrew Ferguson, Melissa Holyoak
Moderator: William Kovacic
Key takeaways from the panel:
- Judicial skepticism: The FTC’s unprecedented unanimous losses in cases like Axon and AMG signal increasing judicial skepticism. The commissioners emphasized that the FTC must earn judicial deference through sound empirical work, careful case selection, and consistent wins to maintain its “deposit of credibility” with courts.
- Post-Chevron Interpretation: Post-Chevron, the commissioners stressed the importance of rigorous statutory interpretation and “showing our work.” Commissioner Holyoak used the healthcare breach notification rule to illustrate how agencies must now demonstrate their interpretations are correct– not just reasonable– through careful textual analysis. Both highlighted the tension between needed regulatory flexibility and constitutional constraints on delegation.
- Consumer Protection as Antitrust Focus: Consumer protection must remain antitrust enforcement’s “lodestar,” with resources focused where consumer harm is greatest, particularly fraud targeting vulnerable populations. Commissioner Ferguson argued that existing antitrust laws, if fully used, could address many Big Tech concerns without new legislation.
- Coordination vs. Fragmentation: The commissioners acknowledged both the benefits of interstate cooperation and the value of regulatory fragmentation. They suggest that the decentralized U.S. system promotes innovation by avoiding the centralization seen in European regulatory models.
You can watch videos or read full transcripts of each panel, including this one, on TPI’s YouTube channel. Below is a live illustration of this panel provided by graphic artist Karina Branson of CoverSketch. Stay tuned for more panel summaries from 2024’s Aspen Forum!
