The Rocky Relationship between the Federal Trade Commission and Administrative Law

Abstract

In this contribution to a symposium in honor of the 100th anniversary of the FTC, Professor Pierce describes the problems that FTC has experienced as a result of conflicts between its practices and basic principles of administrative law. He traces those problems to the history of the FTC, including the language of the FTC Act of 1914 and FTC's attempt to implement that statute. He describes the ways in which the conflicts between FTC practices and administrative law handicap FTC's efforts to perform its antitrust mission. He then proposes a combination of changes in antitrust statutes that would allow FTC to perform its antitrust mission more effectively over the next century. Those changes include: (1) repeal sections 5 and 13(b) of the FTC Act; (2) confer on FTC power to issue legislative rules to implement the Sherman and Clayton Acts; (3) confer on FTC exclusive jurisdiction to resolve civil cases that arise under the Sherman and Clayton Acts; and, (4) replace oral evidentiary hearings with paper hearings.

Keywords: administrative law, antitrust, FTC