In a final address, @JusticeATR Makan Delrahim says some of the changes recommended by House Judiciary are "quite sensible." DOJ needs more funding for antitrust, and he backs higher filing fees for mergers.

He has six recommendations: 1) Create bright line rules and alter burden of proof for mergers.
“Courts need additional guidance in these cases.” In cases where a company has more than 50 percent market share, burden should be on merging parties for any transaction in that market, he says
DOJ would still have to prove the market definition and the market share of the dominant firm.

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There is a now-relevant parallel here to the difference here between matters before a judge & matters before a jury. Judges are far more reluctant to strike testimony or evidence if they are the only recipients of it, with the theory being that they are really smart about ...


law stuff & will know what they can & can't consider. For instance, there is a long-held rule that a fact witness can't make legal arguments, only a lawyer. So what will happen in a motion for summary judgment, where the entire proceeding is on paper, will play out like this:

1) Defendant makes a motion for summary judgment. It includes a sworn declaration from some fact witness.

2) The declaration includes all sorts of legal arguments about why the defendant should win. Often the declaration includes arguments the brief didn't even make.

Defendants (especially DOJ-represented ones) often do this to get around the word or page-limits placed on briefs.

3) Plaintiff moves to strike the declaration for its inclusion of inadmissible legal arguments.

4) Judge denies the motion to strike, on the grounds that a ...

judge is a sophisticated consumer of evidence & can choose what to consider & what to ignore, unlike a jury.

The legal fiction behind this impeachment exception is that Senators are also smart enough to know what to listen to & what to ignore. Now, that may not be ACCURATE, ...

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