Nicole Durkin · September 2013
81 GEO. WASH. L. REV. 1684 (2013)
Congress created the Federal Trade Commission (“FTC”) to be an independent and expert body that would enforce competition law by both bringing and adjudicating complaints against violators. Since the FTC’s creation, however, commentators have questioned whether housing these two functions in the same body biases the Commission’s decisions. A special committee of the American Bar Association (“ABA”) studied this issue in 1989, but ultimately concluded that the integration of decision functions should continue. The committee relied in part on statistics showing that the Commission dismissed forty percent of its competition cases on the merits in the 1980s, which the ABA committee took as evidence of a lack of bias.
This Essay encourages further study of whether the FTC’s rates of dismissal of competition cases do in fact support a conclusion that its prosecutory functions do not bias its decisionmaking. The Essay compiles a dataset of competition cases decided by the FTC from 1950 to 2011 and determines the rate at which the FTC dismissed those cases on the merits. Further, it assesses whether the Commission’s decisions are affected by the politics of presidential administrations by determining the rates at which the Commission dismissed cases brought by previous political administrations. Finally, to assess the ways in which perceived bias in the Commission’s decisions could affect the Commission’s goals, the Essay determines the rate at which the Commission’s decisions are upheld by the U.S. courts of appeals.
