Document Type

Working Paper

Publication Date



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.


Antitrust and Trade Regulation | Internet Law | Law | Law and Economics


Testimony Before the United States Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights.


Kernochan Center for Law, Media and the Arts


Center for Law and Economic Studies