Below, we have provided the full transcript of the interview with Prof. Douglas Melamed, the Herman Phleger Visiting Professor of Law at Stanford University, recorded on August 23, 2021.
This interview was done as part of the Antitrust Brainstorming Board created by CPI with the support of the CCIA.
Thank you, Prof. Melamed, for sharing your time for this interview with CPI.
A video of the complete interview is available HERE.
Do you think the current antitrust framework works for consumers?
Douglas MELAMED:
Yes, I think the current framework, whether you call it the consumer welfare standard or something else, I think it is right for the intended purpose, which is intended purpose of antitrust laws, I understand. Which is to prohibit anti-competitive conduct that harms competition and thereby harms consumers and suppliers. The implementation of that conceptual framework, however, I think needs improvement because over time I think it has become too difficult for plaintiffs to prevail for two reasons, I think.
First, antitrust doctrine has been informed by an excessive trust in markets and an excessive distrust, I think, in governments. And that has manifest itself in a series of specific doctrines that are intended to reduce the risk of false positives, even at the expense of false negatives. And I think that’s going too far. I think those doctrines, some of them, not all of them, some of those doctrines I think should be re-calibrated to reflect current thinkin
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