Kernochan Center for Law, Media and the Arts
Center for Law and Economic Studies
Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of under-enforcing the law and deviating too far from Congress’s original intent.
"Section 5 and 'Unfair Methods of Competition': Protecting Competition or Increasing Uncertainty?",
Columbia Law & Economics Working Paper No. 542; Columbia Public Law Research Paper No. 14-508
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1961