The Rise of Textualism in Antitrust Enforcement: A Conversation with Bob Lande

Jul 13, 2023

In the latest episode of Second Request, Teddy interviews Bob Lande on the impact of textualism on merger analysis. Bob Lande is Venable Professor of Law Emeritus at the University of Baltimore School of Law and a board member for the American Antitrust Institute who has written about the use of textualism in antitrust enforcement and the way it affects statutory interpretation in a recent article for the Utah Law Review and a presentation to the FTC.

Due to its emphasis on “precise language,” Bob argues that rather than leading to more conservative antitrust decision making by the courts, textualism should lead to the exact opposite: “Textualism should lead, if anything, to more aggressive antitrust enforcement….This is because the Sherman Act, the FTC Act and the Clayton Act are all products of the progressive era. It’s not surprising that their precise language is very pro-consumer and very anti-monopoly.”

Listen to the podcast to hear Teddy and Bob discuss:

  • Section 7 language
  • The express efficiencies defense
  • Monopolization