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Congress is poised to establish a blue-ribbon commission to recommend how lawmakers modernize antitrust law. House Judiciary Committee Chairman F. James Sensenbrenner, R.-Wis., last week pushed a joint Senate-House conference committee to include a provision establishing the commission in the broader 21st Century Department of Justice Appropriations Authorization Act, which is expected to easily win passage in both chambers. The 12-member panel is charged with examining whether the Clayton Act, Sherman Act, Hart-Scott-Rodino Antitrust Improvement Act and Federal Trade Commission Act are in need of reform. The commission is supposed to pay particular attention to the impact of the high-technology revolution of the 1990s and the rising importance of intellectual property law to antitrust enforcement. Several antitrust lawyers contacted Friday had mixed reactions to creation of the commission. “There is a prospect that it could be dangerous,” one antitrust lawyer said. “I thought it was a bad idea when I first heard about it. It creates a trough for special interests.” For instance, high-tech companies could argue that they should be subject to a lesser antitrust standard on mergers because there are few physical barriers to competitors entering a market that relies primarily on intellectual property. The lawyer also said the commission will dominate debate in Washington over antitrust policy. “Nobody is going to be able to ignore it because they might do mischief,” the lawyer said. “We would be better off if we didn’t have it.” But Bill Baer, a partner at Arnold & Porter in Washington, D.C., said there is nothing wrong with examining the antitrust laws. “It has such a broad agenda that it is hard to criticize it,” he said, noting that there is nothing requiring the panel to recommend legislative changes. Bert Foer, president of the American Antitrust Institute, said the proposed commission could be both blessing and curse, depending on how it operates. “It could lead to a better understanding of antitrust or it could lead to legislation that would undermine the whole endeavor by writing into law a different antitrust philosophy from what we have lived with since 1890,” he said. “I am worried about which direction it might take.” The best indication of the commission’s direction will be who the president and congressional leaders select for the panel, Foer said. Such selections would not occur until next year, assuming the bill is adopted as expected. The amendment to the authorization bill essentially implements the Antitrust Modernization Commission Act of 2001, which Sensenbrenner introduced in June of 2001. “We shouldn’t shy away from taking a look at some of these antitrust laws … to see if any changes might help ensure a competitive marketplace for the next 100 years,” the Wisconsin Republican said when he submitted the bill last year. A source said Sensenbrenner added the amendment late in consideration of the authorization bill, giving Democrats little time to figure out a strategy to derail the provision. The president would appoint the chairman and three other members, two of whom could not be Republicans. The Senate majority and minority leaders and the House speaker and minority leader would each get two picks. Democrats would designate the vice chairman. The chairman is authorized to hire and fire an executive director and other staff members. The commission could hold hearings and take testimony under oath. It would submit a written report to Congress within three years of its first meeting. The panel’s initial budget would be $4 million. The panel is modeled after the National Bankruptcy Review Commission, which in the late 1990s recommended a significant overhaul to the bankruptcy laws. Ideas generated in that process include the consumer bankruptcy bill now pending in Congress. Copyright �2002 TDD, LLC. All rights reserved.

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