Yesterday the United States Senate confirmed Joshua D. Wright to
serve as a Commissioner on the Federal Trade Commission, filling
one of the two seats reserved for nominees not from the
President's party. He should be sworn in shortly.
Wright is a well-respected antitrust scholar and will be the
first Commissioner who is both lawyer and economist. While he
is expected to bring a more conservative approach to antitrust
enforcement than his predecessor, Commissioner Thomas Rosch, Wright
will be joining a pro-enforcement majority at the Commission that
will continue during President Obama's second term.
Wright, a Professor of Law at George Mason University School of
Law, has received accolades from colleagues and antitrust experts
for his extensive academic scholarship and deep understanding of
antitrust law and economics. He also serves as senior adjunct
fellow at the non-partisan technology think tank, TechFreedom, and
as a senior consultant for Charles River Associates. He is
the co-editor of the Supreme Court Economic Review, and
serves on the editorial board of the Antitrust Law Journal,
Global Competition Policy, and Competition Policy
International. In addition to his academic and private
sector experience, Wright served as the inaugural scholar in
residence at the Federal Trade Commission's Bureau of
Competition from January 2007 to July 2008. Having received
funding from Google for some of his academic research, Wright
pledged that for two years he will not to participate in any FTC
actions involving the company.
Wright's confirmation comes after his nomination by President
Barack Obama in September 2012. He will replace outgoing
Commissioner Rosch, whose term expired in September, but who has
remained as a Commissioner through Wright's confirmation
process. Despite being a Republican, during his seven-year
tenure, Rosch emerged as the swing vote on numerous enforcement
actions and played a key role in defining a more aggressive
enforcement program at the Federal Trade Commission in both merger
and conduct matters. Rosch became an outspoken proponent of
expanding the use of Section 5 of the FTC Act, which prohibits
"unfair competition."
Wright is expected to bring a conservative, empirical approach to
his role as Commissioner. He is more likely to resist
expansion of the agency's powers to target companies for
antitrust violations. At his December 4 confirmation hearing,
some Senators expressed concern that Wright's academic writings
suggest he opposes more regulation and enforcement. Wright
responded that his primary concern is ensuring that the agency
protects consumers. He acknowledged the importance of rules
and regulations, but stated his belief that "markets are a
powerful institution that operate for consumers." He
also expressed his concern that "amorphous or vague"
legal standards can create uncertainly and be costly for businesses
and in turn consumers.
Wright's relatively conservative enforcement mindset and focus
on economic principles will sometimes contrast with the Democratic
majority of current Commissioners, Chairman Jon Leibowitz and
Commissioners Julie Brill and Edith Ramirez. However, in the
Republican minority on the Commission, along with Commissioner
Maureen Ohlhausen, Commissioner Wright presence on the FTC should
not be expected to reverse the pro-enforcement trend at the FTC.
Chairman Leibowitz is expected to announce his departure
shortly, but there is every reason to expect his seat will be taken
by someone also with a strong enforcement bent.
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