The Academic Niche Filled by the Utah Project
Since the 1980s, antitrust enforcement has retreated from its historical purpose. This was the result of a changing intellectual landscape in economics and law dating to the 1970s that advanced the belief that: (1) markets in almost every case are naturally self-correcting; (2) so-called consumer-welfare considerations (and low prices in particular) should take precedence over the welfare of workers, small businesses, vendors and suppliers; and (3) intervention in markets of any sort will inevitably only be counterproductive. These assumptions were advanced by a small group of economists and legal scholars associated with the University of Chicago. The result of this influence that the American economy has become increasingly concentrated, income distribution has become more unequal, and economic opportunities have declined. These effects have been noticed and the pendulum has begun to swing back in the direction of more traditional antitrust policy goals. Thus, there is a need for wider economic and legal input in the debate about the future of antitrust.
Moreover, the dilution of effectiveness of the antitrust laws has led to greater emphasis and use of state and federal consumer protection laws. For example, following the Great Recession, Congress established the Consumer Financial Protection Bureau (CFPB), tasking it with promoting fairness and transparency in mortgage loans, credit cards, debt collection, and other consumer finance. Despite some successes in consumer protection, the consolidation and power of giant money-center banks has continued. The growth of smartphones and online commerce has led to a new and complicated business landscape dominated by giant technology companies like Apple and Facebook, as well as many smaller companies that use the global reach of the internet to perpetuate scams, identity theft, and other illegal activity. Economic analysis of these trends is a critical part of this debate. In the consumer protection area, economists study the consequences of asymmetric information in contracting, below-cost prices, and externalities. But little connection has been made between legal scholars in this sub area and economists. The goal of the Utah Project is to promote legal and economic analysis of antitrust and consumer protection issues and to promote competition and fairness as well as economic growth and opportunity.
Location of the Project in Utah
In October 2019, the University of Utah became a trailblazer in the antitrust field by organizing a conference of leading progressive legal scholars, economists and judges, featuring (among others) now FTC Chair Lina Khan. One outcome from that conference was the “Utah Statement: Reviving Antimonopoly Traditions for the Era of Big Tech - A new framework for holding private power to account,” which Professor Tim Wu, another featured speaker at the conference and former special assistant for competition and technology policy at the White House, referred to as a groundbreaking document crystalizing the policy he’s now putting in place. The Utah Project will build on this momentum to develop an annual event that will attract international participation and recognition.
Prior to his retirement, Professor John Flynn at the law school (who was both a lawyer and an economist) championed the collective effort by economists and lawyers to end the domination of Chicago School advocates in antitrust policy. Although there are similar centers at other universities, none occupy the space that we have in mind for the Utah Project. The Utah Project contributes to President Randall’s goal of establishing the University of Utah as a top ten public university by enhancing the reputation and reach of the economics department and the law school’s programs. No other center would collect economists and legal scholars who advocate stronger competition, broad antitrust goals, and fairness in consumer markets.
The University of Utah is unusual in that it has both economics professors and law professors who focus their research on antitrust policy and consumer protection. Utah also has an active antitrust bar and several of its federal district court judges and its attorney general are antitrust specialists. Moreover, Utah’s “silicon slopes” is quickly becoming a node in the digital economy, with an especially influential role in IT services for banking, finance, and data storage.
- Online Publication: In addition to the future peer-reviewed academic journal, the center will host a
curated website of opinion journalism on antitrust, consumer protection, and allied
policies. We envision podcasts, staged discussions/debates, and other multimedia content.
- Annual Academic Conference: Once a year we will invite scholars from around the world to present their work,
potentially comprising a special symposium issue of our academic journal. The conference
would be explicitly inter-disciplinary and seek to provide a forum (along with a publication)
for junior scholars to gain a hearing for work that challenges the status quo, given
the difficulty in publishing such work in established journals within the economics
subfield of Industrial Organization. For legal academics, the conference would provide
a forum for interdisciplinary work at the intersection of social science and law.
- Annual Public Conference: In addition to the academic conference, we envision separately inviting a wider
audience of journalists, policy practitioners, and enforcement agency personnel to
a conference geared at highlighting antitrust and consumer protection theories of
harm, educating the public about the relevance of policy to economic outcomes, and
coalition-building for reform. Speakers at the public conference also would be invited
to make written contributions to the symposium issue, which would be distinguishable
from the standard, peer-reviewed version of the journal. Conceivably the two conferences
could be held on successive days so those who wish to attend both can do so easily.
We can also make full use of Utah’s attractiveness as a destination, staging the academic
conference at the university and the public conference in Park City or some other
resort destination that would further induce attendance. There would be a further
community engagement dimension, with the participation of the antitrust section of
the Utah state bar association. The Utah bar would provide CLE credit to Utah bar
members for their attendance and CLE fees would help fund the event, as was the case
with our 2019 antitrust conference.
- Community Engagement: There is a real demand among the Utah Bar for the antitrust and consumer protection
analysis and activities that the Utah Project would offer. The Utah Antitrust Section
of the Bar and the leading Utah law firms would have local resources to assist in
antitrust and intellectual property cases. We anticipate several letters of support
from local attorneys.
- Undergraduate teaching: The economics department already offers two undergraduate courses on similar themes
as the Utah Project: Law and Economics and the Economics of Market Power and Antitrust,
taught by Mark Glick and Marshall Steinbaum, respectively. Ted Tatos, a statistician
who has worked for decades on empirical antitrust and other legal issues in the Courtroom
could enrich teaching at the undergraduate level and in the Law School. The law school
teaches antitrust law, intellectual property law, consumer protection and other related
courses. All of these courses would benefit from the interdisciplinary activities
of the center. In addition, Hal Singer, a prominent D.C. economist from Johns Hopkins
and an antitrust specialist, will be teaching additional courses on aspects of antitrust.
- Graduate teaching: The economics Ph.D. program includes one second-year elective in Industrial Organization
designed to prepare Ph.D. students to conduct dissertation research in that subfield,
as well as a regular competition workshop where Ph.D. students present their own in-process
research as well as cutting-edge work by outside scholars. As part of the Utah Project’s
programming, that workshop could be expanded as a regular seminar with capacity to
have outside researchers present their own work.
- Legal Education: The College of Law regularly offers courses in antitrust and consumer protection law, as well as occasional intellectual property and other seminars touching these areas. We are proud to have two College of Law professors associated with the Utah Project. Jorge Contreras is Professor of Law at the S.J. Quinney College of Law and Director of the Program on Intellectual Property and Technology Law, he has published in all of the leading antitrust law journals and is a member of the Advisory Board of the American Antitrust Institute. His work in this area, particularly at the intersection of antitrust and patent law, has been cited by courts and governmental agencies around the world, including the U.S. Federal Trade Commission and the European Commission. Chris Peterson is The John J. Flynn Endowed Professor of Law at the S.J. Quinney College of Law, he is a leading legal scholar on consumer protection law. During the Obama Administration, Chris served in the Director’s Office at the federal Consumer Financial Protection Bureau where he helped engineer large public enforcement actions against banks and oversee regulatory rule making under Administrative Procedures Act.